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BASIS OF SUCCESSION
synonymous to succession
Synonymous to succession
inter vivos
mortis causa
Art. 728. Donations which are to take effect upon the death
of the donor partake of the nature of testamentary provisions,
and shall be governed by the rules established in the Title on
Succession.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
effect upon death? Why is there a need to know the
distinction?
So when you say formalities, are you saying that the two have
different formalities?
For example it is donation inter vivos, what formalities should
be complied with?
If you still remember, what are the formalities of donations?
You should say that, if it is donation inter vivos, it should
follow the formalities of donations.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
form of the will. Therefore the transfer here was not valid.
We learned in this case, the three
characteristics of a donation mortis causa.
distinguishing
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Art. 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished by his
death
This defines what is inheritance. When you say inheritance,
that is the one mentioned. All the property, rights and
obligations of a personthat would be the inheritance.
Succession it is NOT the same as inheritance. When you
say succession, again under Article 774, it is the mode of
acquisition.
Now let us go to the inheritance. We have the properties,
rights and obligation of a person which are not extinguished
by his death.
So we mentioned properties, rights and obligations. These can
be transmitted by succession. So if a person dies, his
properties, rights and obligations can also be transmitted to
his heirs.
PROPERTY
When you say property that can be transmitted by succession,
what kind of property? Real and personal property. Real
property or immovables; personal or movables.
Now we also have intangible properties. What do you
understand by intangible properties? When you have a
business and it has a good reputation what do you call that?
Good will. When you have an invention and you dont want
some other people to copy it, what do you do with it? Patent.
That is also intangible. If you have a novel, and of course to
prevent plagiarism what do you do with it? You copyright it. If
you have a business and you want other people to use the
name of your business, what do they do? Franchise. These
are examples of intangibles. They are also properties, and
they can also be subject of succession.
Now for a property to be considered to be a proper subject of
succession, the property must be licit. When we say licit, the
property first, should not be outside the commerce of man.
What do you understand by not outside the commerce of
man? When do you say that a property is not within the
commerce of man? So the sun, what do you call the sun? Res
nullus, because nobody owns the sun. Even if you claim this is
my sun, my moon, my star, you cannot prevent anybody from
looking at the sun, unless ilubong nalang nimo siya. So, the
sun, the moon, the stars, the fishes that swim in the ocean.
What else? What do you mean by res communes? So owned
by the community, the bridges, municipal buildings. What
else?
How about shabu? Can you pass that on to your heirs? It is
prohibited. Even if you can physically pass on, if you place I
hereby give my stock of shabu to my son, that will not be
valid. It will go to the state and be destroyed.
So that is the concept of property.
Now if you still remember, in your Bill of Rights, diba no
person shall be deprived of life, liberty or property without
due process of law can you say that the concept of
property in the Constitution is the same as the concept of
property in Succession?
For example, your employment; is that considered as property
in the Bill of Rights? Yes, so you cannot just be deprived of
that without due process of law. So in that sense, can you say
that the concept of property in the Bill of Rights is the same
as Succession? Okay, so different ang concept sa property in
the Bill of Rights because mas broad ang coverage. In
Succession were just dealing really with properties,
properties in their technical sense, in their physical
sense. Because for example, labor, it is considered as
For
therapy
or
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
interest and all members of the family. The document, which
may be a card or any paper designed to be carried on a
person, must be signed by the testator in the presence of two
witnesses who must sign the document in his presence. If the
testator cannot sign, the document may be signed for him at
his discretion and in his presence, in the presence of two
witnesses who must, likewise, sign the document in the
presence of the testator. Delivery of the document of legacy
during the testator's lifetime is not necessary to make the
legacy valid.
(c)
The legacy may be made to a specified legatee or
without specifying a legatee. If the legacy is made to a
specified legatee who is not available at the time and place of
the testator's death, the attending physician or surgeon, in the
absence of any expressed indication that the testator desired
otherwise, may accept the legacy as legatee. If the legacy
does not specify a legatee, the legacy may be accepted by the
attending physician or surgeon as legatee upon or following
the testator's death. The physician who becomes a legatee
under this subsection shall not participate in the procedures
for removing or transplanting a part or parts of the body of
the decedent.
(d)
The testator may designate in his will, card or other
document, the surgeon or physician who will carry out the
appropriate procedures. In the absence of a designation, or if
the designee is not available, the legatee or other persons
authorized to accept the legacy may authorize any surgeon or
physician for the purpose.
Again, you can give it by a will, by donation or by legacy.
When you say legacy, it is in a will, a last will and testament.
Now we have the basic rule in Succession when we go to
probate that if there is a will, it has to be probated. What do
we understand by probate?
Probate is a proceeding intended to determine the validity of
the will. It doesnt follow ha once there is a will na nabilin,
okay na to siya, so ihatag na sa iyaha diretso ang property,
NO ha.
You have to file a petition in court for the probate of the will.
And then the court will examine the will. And then the court
will determine if the testator was qualified at the time he
made the will and whether the will is valid as to form, and
whether the will was really executed by him. Only when the
court is satisfied that all those requisites are complied with,
then the will is declared admitted to probate. And then the
properties mentioned in the will can now be distributed in
accordance with the will. Probate proceedings, taking into
account the congestion of our courts, swerte naka na
makahuman kag probate kana ha kung wala mag-oppose
one year. Swerte na na siya. Kay kung nay mag-oppose,
swerte naka kung mahuman mog 10 years. Kana siya ang
nature sa probate proceeding.
Now in the case of legacy of an organ, the law says without
waiting for probate of the will. Of course, it is understandable
if you donated for example your kidney, your heart, and then
mag-probate pa ka, wala na. Gilubong na tong imong
gitagaan ug organ. Imoha nalang nang imuhang heart. So,
you dont have to wait for the probate of the will.
Or, even if the will is declared to be invalid. Halimbawa, wala
na-comply ang requisites daghan man kayo nag requisites,
halimbawa wala nacomply ang isa under an ordinary will,
under an ordinary situation, the will would be invalidated. But
here, even if the will is invalidated, and as a consequence
legacies mentioned in the will cannot be given effect under
ordinary situation, but if it is a legacy of an organ or a part of
the human body, the law says it can still be valid and
effective even if the will itself is not valid as long as it
was made in good faith. So mao na na siyaang requisites.
Different ang technicalities insofar as the legacy of an organ
of the human body is concerned.
RIGHTS
Rights can also be transmitted by Succession. What rights?
The general rule here is patrimonial rights can be
transmitted by Succession. What do we mean by patrimonial
rights? Those rights which relate to properties.
Generally, your rights pertaining to properties are not
extinguished by your death. Those rights will be transmitted
to the heirs.
Examples of these rights:
Contractual rights
Right to insurance
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
If you are the lawful owner of property, and you want to eject
an occupant from the property, but even before you file a
case or while the case is pending you died, your heirs may
continue the case or institute the case. Your right passes on
to them. That right is not extinguished by them.
are
not
Usufruct
Agency
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Courts final decision. It is better na swelduhan nalang ninyo
Right to vote
OBLIGATIONS
Obligations are also transmitted by succession. But when it
comes to obligations, the transmission is only up to the value
or extent of the inheritance. So if the decedent died, he has
lands cash etc amounting to 10 million. But he left payables in
the amount of 15 million. So the heirs will be made to pay the
debt but only up to the extent of the value of the inheritance.
So they can only be compelled to pay 10 million. Forget
One view says that debts are not actually transmitted because
prior to the distribution of the estate, the debts have to be
paid first. Before the heirs can take their shares, the estate
must first pay the taxes and debts charges and whatever
expenses. So the net hereditary estate will be distributed to
the heirs.
2.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
consideration of its performance by a specific person and by
no other.
So meaning, when you own a property you are merely
occupying a representative position. So when you die your
rights over the property are not extinguished because even if
you died you are only just a representative. Whoever will
succeed to the property will also succeed to the rights and
obligations pertaining to that property. So that is a relation
from patrimony to patrimony with the persons occupying only
a representative position. So that is why rights and obligations
relating to property as a general rule are not extinguished by
the death of the owners; they merely pass on to the
successors except when the rights and obligations are purely
personal.
Genato vs. Bayhon
GR No. 171035 august 24 2009
This involves a loan secured by an alleged dation en pago but
the loan was not paid. So the lender filed an action against
the debtor. However the debtor died. The question is whether
or not the obligation was extinguished and of course the
Supreme Court held no. the SC also discussed the case of
Alvarez
relating
to
the
concept
of
progressive
depersonalization of patrimonial rights and duties. So here the
loan was contracted by the respondent, he died while the case
was pending while he may no longer be compelled to pay the
loan, the debt subsists against his debt. No property or
portion of his inheritance may be transferred to his heirs
unless the debt has first been satisfied, here. The Sc
discussed the procedure on how to enforce a claim against
the estate of a deceased person governed by Rule 3 Section
20 of the Rules of Court.
Because the case was still pending and the debtor died, the
remedy of the creditor is to file a claim against the estate of
the debtor. It is not an ordinary action for collection. If there
is already a proceeding for the settlement of his estate, you
have to intervene and file a claim. If you there is no
proceeding, you, as a creditor can initiate the settlement of
his estate.
GR: A party's contractual rights
transmissible to the successors.
and
obligations
are
Exceptions:
1.
2.
Criminal liability
That is an obligation which is not transmitted. So if A
was sentenced to imprisonment for 20 years and he
died after 3 years, his children, although they look
like criminals also, they cannot be made to serve the
remaining years.
2.
3.
4.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
In contracts, there will only be transfer of ownership upon
delivery. But in succession, it is not delivery that
transfers ownership; it is death by operation of law.
Actual death
2.
Presumed death
It is discussed in article 390 and 391 of the NCC.
Death is presumed by law.
Ordinary presumption
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
danger of death happened. We could not possibly think that
for example in year 2000 there was a volcanic eruption so the
last time you saw him he was running away from the lava and
then after that you did not find him and 4 years now he still
did not appear. You cannot think na naghingalo siya didto sa
lava for 4 years. Wala na patay na jud siya. The value of the
estate would be that in 2000. Transmission of ownership
happened in 2000. That is for qualified or extraordinary
presumption.
2.
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
circumstances and his existence has not been known for four
years. (n)
Art. 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any
property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents.
(194)
The rules on presumption shall yield on preponderance of
evidence.
Now, there is also a presumption under the Rules of Court
relating to death:
Rule 131. Section 3 (kk). That if there is a doubt, as
between two or more persons who are called to succeed each
other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died at the
same time. (5a)
So for the purpose of Succession, we do not have a
presumption of survivorship. It does not mean that when the
father is 80 YO at the time of the shipwreck and the son was
18, then the son survived longer than the father although
both of them died but who died first, there is no presumption
in succession.
So the rule here is, one who alleges the death of one prior to
the other, he shall prove the same, meaning there has to be
evidence presented to prove that the father died ahead of the
son or vice versa. Now, if there is no proof, there is no
sufficient evidence to prove that the father died ahead of the
son or vice versa, then, the presumption here is that they at
the same time. So what is now the consequence, if they died
at the same time? Why do we need to know? Because it
matters in Succession, for example, this is the father, this is
the son and the son is married. This is the wife of the son. So
the father has several properties. Now, if they both perish on
that shipwreck, and the father died ahead of the son, upon
the death of the father, the son inherited from the father,
assuming he inherited 10M, when the son died then the wife
also inherited this (10M) from the son. But, if the son died
ahead of the father, and then the father died subsequently,
this wife will not receive anything because she is not an heir
of her father-in-law. This will go to the legal heirs of the
Father. So it matters.
TYPES OF SUCCESSION
So, there are 3 types.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there being
no substitution, and no right of accretion takes place;
Balanay v. Martinez
Issue: WON the last will and testament of leodegaria will be
given effect?
Ruling: Even if a portion of the will is alleged to be void it
does not follow that the entire of the will is void. If the valid
provisions can be separated from the void provisions then give
effect to the valid provisions. One principle in wills is that
when there are two interpretations the interpretation that
makes the will valid and the other makes the will void. Which
interpretation must be followed? The interpretation which is
consistent with the validity of the will must be followed. In this
case, the husband assented to the wishes of the testatrix,
hence, somehow the interpretation which gives effect to the
will of the testator must be followed.
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
HEIRS
and
How about the mechanical act of drafting the will? Can that be
delegated? It depends. Because it depends on the kind of will,
if it is a notarial will, then the mechanical act of drafting the
will can be delegated. In fact, it is usually delegated to
lawyers because the formalities are complicated.
13
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
When it comes to holographic will, even the mechanical act of
drafting the will cannot be delegated because it should be
entirely handwritten, dated and signed by the testator. So, dili
pwede I-delegate.
Another consequence that the will is personal is that the
content of the will is confidential that is why the lawyer is not
required to retain a copy of the will or to submit the will to the
clerk of court.
A ANIMUS TESTANDI. There must be an intent to make a
will. So the testator must understand that this is my last will
and testament that the consequence of my disposition of my
property upon my death. This will take effect upon death of
testator. One of the essential qualifications of the testator is
that he must have a sound mind because how can you have
animus testandi if you do not have a sound mind. That is why
also, only natural persons can execute wills because
corporations cannot have animus testandi.
Montinola v. Herbosa
Obviously when Rizal made the poem he is not contemplating
on making a will because there was no animus testandi. It can
be considered a will in a grammatical sense but not in a legal
or juridical sense.
2.
2.
contains
an
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The question is, is this a will? Yes. It contains a disposition of
property. Is it valid? No, because as Ive said it does not
follow the formalities.
Vitug v CA
In this case, the subject of the survivorship agreement was
their conjugal funds of the spouses. In a last will and
testament you should be disposing of your own separate
property in favor of the other but here they merely agreed
how to dispose of their joint account. The SC said that this is
not a will. The will must purport give to ones separate
property in favor of another.
2)
3)
Art 786
The
heirs,
legatees
devisees are not named
Art 785
or
The heirs,
legatees or
devisees are referred to by
name in the will
Examples:
Castaeda v Alemany
The issue was won the drafting of the will may be delegated.
Here the notarial will was typewritten in the office of the
lawyer. It does not matter.
2.
3.
15
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
KINDS OF AMBIGUITIES
A.
1)
2)
3)
4)
B.
2.
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Ex. You cannot present a person to testify and what would be
the nature of the testimony Actually according to the testator
ako daw na si Juan dela Cruz. Sa ako daw na niya gina-hatag
ang house and lot in Calinan. He told me that during one of
our conversations Can we accept that kind of evidence? NO
because how can we confirm whether or not the testator
indeed made such a declaration? We cannot ask him because
he is dead. This is not allowed.
But when you say oral evidence like diba nakabutang sa will
na kauban si testator ug si Juan dela Cruz from preschool until
law school, so naay mag-testify karon nga classmate niya si
testator ug si Joan dela Cruz during preschool. So nag-testify
siya as to that fact and not as to the supposed oral
declarations of the testator as to his intentions. Kani siya is
still oral evidence but it is not prohibited. This is also covered
by the Rules of Court on the Parole Evidence Rule:
Rule 130. Sec. 9 Evidence of written agreements.
When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than
the contents of the written agreement.
However, a party may present evidence to modify, explain or
add to the terms of written agreement if he puts in issue in
his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
(b) The failure of the written agreement to express the true
intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
b.
2.
17
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
You can also relate this to the case of Rodriguez vs. Borja.
Katong case na gi-deliver ang copy sa will March 4 and then
gi-withdraw and then March 12, 8 AM nag-file siya ug petition
for settlement of intestate estate in Bulacan. 12NN on the
same day naay nag-file ug petition for probate in Rizal. So asa
sa duha ang mag-prevail? We already know that it should be
the probate proceeding. Testacy is favored over intestacy.
Yambao v Gonzales
No. That would only be limited to that which exists at the time
of the execution of the will and anything added will not be
included. This is the general rule.
2.
3.
4.
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
shall comply with the legacy by assigning to the legatee
all rights of action it may have against the debtor. In the
second case, by giving the legatee an acquaintance,
should he request one. In both cases, the legacy shall
comprise all interests on the credit or debt which may be
due the testator at the time of his death.
Here, the law presumes that if you give to A the land, you are
giving to him all your interest to the land. If you are the
owner of the land and you will just mention that I hereby give
to A my land, then, you are giving your entire land to A as the
provisions says, all the interest which the testator could device
or bequeath in the property disposed of.
2.
Since the building was being rented, can A eject those who
are renting? No, due to the transmissibility of obligations, in
which case, he acquires the obligation to respect the lease.
So, he cannot eject except for other compelling reasons.
Problem: He did not eject and there were not-paying renters
for 1 year and after the death of the testator, A owns the
building. Even giving a grace period, still, the renters failed to
pay for another 1 year after the death. But later on, they were
able to pay in cash worth P2 Million, good for 2 years.
Who is entitled to the rentals? Take note that the rentals were
paid 1 year after the death of the testator but those rentals
were due during the lifetime or before the death of the
testator and other were due after the death of the testator.
Will A own it all or he receives nothing?
In this case, we need to make a distinction. With respect to
the rentals which accrued during the lifetime of the testator,
Article 793 is applicable and these are not included in the
devise. These are incomes which accrue after the execution of
the will, during the lifetime or before the death of the testator.
As such, these shall accrue to the estate of the testator since
it is not indicated in the will that the same will be given to his
legal heirs. Now with respect to the rentals which accrued
after the death of the testator, the rentals will pertain to the
devisee because at the time of death, A becomes the owner
of the building and whatever accrues therefrom will be
received by the owner, not only the 1 year but all incomes
starting from the time of death. The latter case is the
application of Article 781.
Article 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)
19
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
means the formalities in the execution of wills
depending of the kind of will.
What are the two kinds of validity of wills? Extrinsic and
intrinsic validity.
Intrinsic validity refers to the substance of the will or
legality of the provisions in the instrument or will.
Question falls under the intrinsic validity:
2) FROM THE
COUNTRY
VIEWPOINT
OF
PLACE
OR
(i)
Place of
Execution
Philippines
Governing Law
Philippine Laws
according to Article
17 of NCC, Par 1:
Law of the place of
execution (Lex
Loci
Celebrationis)
Abroad
(before
diplomatic or
consular
office of the
Philippines)
Philippine Laws
according to Article
17 of NCC, Par 2.
Reason: Diplomatic
or consular offices
are considered as
20
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
extended territories
so by fiction of law,
the will is deemed
made in the
Philippines even if
abroad.
FIL
Abroad
(NOT before
diplomatic or
consular
office of the
Philippines
Philippine Laws
according to Article
17 of NCC, Par 1:
Law of the place of
execution (Lex
Loci
Celebrationis)
Abroad
3.
4.
1.
2.
1.
b)
(iii) Article 816 of the New Civil Code: Alien
Testator Executing his Will Abroad
2.
3.
1.
2.
Example: A Filipino
executing will
which is valid in
US, it is also valid
in the Philippines.
Alien
1.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The exception is the intestate and testamentary
succession with respect to:
2.
FROM THE
COUNTRY
VIEWPOINT
OF
PLACE
OR
Order of succession;
2.
3.
2.
1.
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
MICIANO vs BRIMO
In the partition made by the testator in his will, there was an
opposition alleging that the said partition is not in accordance
with the Turkish Laws. Further, it was alleged that the Turkish
law should be applied considering that the testator is a
Turkish citizen at the time of his death. However, the laws of
Turkey were not presented in court. Thus, the doctrine of
processual presumption applies.
In the absence of proof of foreign [Turkish] laws, it is
presumed that it is the same with our [Philippine] laws.
In this case, the applicable law is the Philippine laws in the
absence of proof or even presentation of Turkish laws.
ANCHETA vs GUERSEY-DALAYGON
This is a disciplinary case against Atty. Ancheta. Audrey and
Richard were American citizens and the wife died leaving
substantial properties to her husband. Richard remarried in
the Philippines and left his properties in his wife in the
Philippines upon his death. Audreys will is probated in
Maryland and in that procededing, Ancheta is named as
ancillary administrator. When Richard died, the will of Audrey
(bequeathing properties to Richard) needed to be probated in
the Philippines. During the proceeding in the Philippines,
Ancheta made a project of partition and the same was
opposed by Candelaria (2nd Filipina wife) being contrary to US
laws and contravenes certain provisions in Audreys will.
According to Ancheta, he made the project according to
Philippine laws having no knowledge of US laws. Using the
doctrine of processual presumption, US and Philippine laws
are deemed the same absence of any proof.
Was Atty. Ancheta justified in saying that he merely presumed
that Philippine laws apply? No. First, his office was also a
participant in the US, being an ancillary administrator. When
Audreys will is probated in the US, he already knew US laws.
Second, being a senior partner in a prestigious law firm with a
large staff and legal library, he has all the resources to
determine the competent law. It is incumbent upon him to
exercise his functions as ancillary administrator with
reasonable diligence and to discharge the trust repose against
him faithfully. Unfortunately, he failed to perform his fiduciary
duties.
The Court added that how could Ancheta honestly presume
that Philippinbe laws apply when as early as the reprobate of
Audreys will before the trial court in 1982, it was already
brought to fore that Audrey is a US citizen, domiciled in the
State of Maryland.
The Court does not apply
circumstances of the case.
presumption
due
to
the
2.
3.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Specifically we have Articles 887 894 of the New Civil Code,
which was applied here by the SC.
1.
2.
2.
3.
Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
balanced mind for you to be considered of sound mind for the
purpose of executing a will. Okay, so thats the first definition.
2.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
constitutes forgetfulness or a change of mind, due to
ignorance of the irrevocability of certain donations.
Alsua-Betts vs. CA
Mere weakness of mind or partial imbecility from disease of
body or from age-does not render a person incapable of
making a will.
Avelino vs. Dela Cruz
Is a blind person of sound mind? YES. In fact under Article
808 of the Civil Code, a blind person is recognized as having
the capacity to execute a will, although there are additional
requirements for a blind person. But, he can execute a will.
If you have an epilepsy, do you have soundness of mind? Yes.
As long as you comply with the three requisites. Your body
does not have to unshattered by disease, injury, or other
sickness, as long as you did not execute a will during the
attack, otherwise, that is very incredible, it cannot be
executed of sound mind.
In the case of Insomia, TB, Diabetes, Cholera, old age, **,
violent temperament, passions and prejudices, they do not
affect soundness of mind. Unless, passion and prejudice
border on delusion.
Drunkenness and Drug addiction, will these affect soundness
of mind? Drunkenness, he may be considered of sound mind if
sobra sobra iyahang pagka hubog bisag dili siya buang. You
dont have to have a perfectly balanced mind, but also you
dont need to be totally insane to be considered of sound
mind. As long as you comply with the 3 requisites, then you
are not of sound mind. How about drug addiction? Siguro
2.
3.
2.
3.
The SC said that each case rest on its facts and must be
decided by its own facts.
Therefore, there is really no hard and fast rule on whether this
person is of sound mind or not. But, at least, jurisprudence
would be your guide. Also, the requisites under article 799.
You can easily refer to these.
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
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
notary public was evasive, he could not commit himself he
was referring only to the certification to that effect, so that
was not given weight by the SC.
How about the testimony of the attesting witnesses, we are
referring here to a notarial will because there are no witnesses
when it comes to holographic wills. So the witnesses on the
notarial will are also competent witnesses as to the mental
condition of the testator. How about the attending physician?
We have here:
Samson vs. Corrales Tan
As a general rule, the testimony of the physician is given
highest regard if present when the will as executed. But in this
case, the SC did not give much credit to the testimony of the
physician, instead, it gave more credit to the testimony of the
attesting witnesses who positively testified that at the time
the testator executed the will, he is of sound mind. So they
testified to his mental condition.
Here, the physician is not the attending physician, so he can
only give an opinion to the mental condition of the testator as
opposed to the complete testimonies of the witnesses, the SC
here, again gave more credit to the testimonies of the
witnesses. The testimony of other witnesses may also be
admitted, not necessarily the attesting witnesses but also
those persons who are present at the time of the execution of
the will. So they witnessed the behavior of the testator at that
time, the way he talked, he moves, his demeanor. So they
could testify as to the mental condition.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
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.
So, based on Article 804, every will must be in writing.
Whether it is a holographic will or a notarial will, it should be
in writing. As I have said, nuncupative wills are oral wills.
Therefore, they violate the express provision under Article 804
because they are not in writing. So, they are not valid.
I think you have seen in movies, in teleseryes usually, where
it was shown that the deceased, who is at the verge of death,
bestows orally his properties to his children or orally
disinherits one or some of his heirs. Is that valid? In the
movies, it is valid, but we are not in the movies and this is not
a teleserye. Thus, not valid.
There is no NUNCUPATIVE WILLS in the Philippines. We only
have written wills. The law says in writing. What kind of
writing? When it comes to notarial wills, they can be
computerized, typewritten, engraved, in ink, red ballpen, pink,
yellow, etc. It does not matter as long as it is in writing. When
it comes to holographic wills, they must be handwritten by the
testator only. It can be cursive, shorthand, etc. as long as it is
written by the testator. What if the testator has no hands but
he can write through his mouth or his feet? Is that valid as a
holographic will? Well, as long as it is the writing of the
testator.
The second requirement is the language requirement. The
law says it must be executed in the language or dialect known
to the testator. When you say language or dialect known to
the testator, the testator must really understand the language
used in the will. It does not have to be interpreted or
explained because the testator himself, when he made the
will, knew the language.
It is not required for the testator to be an expert or proficient
as long as he understand the language and he could express
himself in that language. It is not even required that the
language used should be uniform- that there should only be
one language used in the will. It is possible that in the first
paragraph, the testator used French. In the second
paragraph, Spanish. In the third paragraph, Bisaya. As long as
he understood the language or dialect used in the will.
Here, why was the presumption that the will is not in the
language or dialect known to the testator not applied?
First, the testator does not have to state in the will that it is in
a language or dialect known to the testator although in some
wills, just to be safe, especially in notarial wills, it is provided
that this will, which is written in English, a language known
to the testator. This, however, is not a requirement.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Those are the things that you have to remember insofar as
the language requirement is concerned. Again, you have the
presumption. As a consequence of the presumption, there is
no need to state in the will or in the attestation clause that
the will is written in the language or dialect known to the
testator, and you can present extrinsic evidence or evidence
alliunde to prove that the testator knew the language or
dialect.
But as the cases would show, even if you have the
presumption but you cannot find anything in the facts that
would atleast connect to the circumstances of the testator,
then, it is either the presumption did not arise, or even if it did
arise, it was wholly contradicted or destroyed.
The will, if it is a notarial will, contains the dispositions. After
the dispositions, you have the attestation clause and then
you have the acknowledgement. Is it required for the
testator to know the language used in the attestation clause?
There is no requirement. Why? Because, basically, the
attestation clause is the act of the witnesses, so the testator is
not concerned with the recitals in the attestation clause. He
only has to be knowledgeable of the language in the will.
In notarial wills, at least three witnesses are required. Are
the witnesses required to know the language used in the will?
No. They are only concerned with the attestation clause. The
will is the act of the testator. The attestation clause is the act
of the witnesses. The acknowledgement is the act of the
notary public. Given that the attestation clause is the act of
the witnesses, is there a requirement that the witnesses
should know the language used in the attestation clause?
Ideally, they have to know. What if they cannot understand?
What if the attestation clause is in English and it was merely
explained to the witnesses? Well, an explanation of the
language used in the attestation clause to the witnesses
would be sufficient. That would be insofar as the language
requirement.
When we discussed Article 805, it applies to notarial wills
while Article 804 applies to both notarial and holographic wills.
Is there a requirement that the will should be dated? When it
comes to notarial wills, there is no requirement under the NCC
that the notarial will should be dated because the date can
simply be determined. Even if the testator already died, there
are still witness and the notary public who can testify as to
the date of the will. So, it is easy to know the date of the
execution of the notarial will.
But if it is a holographic will, date is a major part of the
formula. There are only three requirements. The will must be
(1) written, (2) dated, and (3) signed all in the hand of
the testator. So, if there is no date in a holographic will, the
will would be void. Remember, when it comes to the date, in
notarial will, it does not matter, but in holographic will, it is
very important.
Article 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.
Article 805 is a very important provision. It gives us the
formalities of a notarial will. These matters mentioned in
Article 805 refer to the extrinsic validity of the will- the forms
and solemnities of a notarial will. It is very clear under Article
805 which says, Every will except holographic will, that this
article does not apply to holographic wills, only to notarial
wills.
You have to know by heart the requirements for the execution
of notarial wills. No need to memorize. Just summarize. There
are several requirements and all of these requirements have
equal importance. The common underlying reason for the
imposition of these requirements is to prevent fraud in the
execution of wills to assure that that testator really executed
the will intelligently and voluntarily. So, we have these
requirements to close the door against fraud and bad faith, to
avoid substitution of wills, and to guarantee the authenticity
of the wills. Failure to comply with any of the requirements
under Article 805, as a general rule, would result to the
inadmissibility of the will. So, the will cannot be admitted to
probate.
What are these requirements?
1st requisite The will must be subscribed by the
testator himself or the testator's name is written by
some other person at the end, in his presence, and by
his express direction.
Here, we have the requirement of subscription. What do we
mean by subscription? We are talking here of the subscription
by the testator. Meaning, the signing of the will by the
testator. Subscription here means signing. The mechanical act
of the signing the will.
Where should the testator sign the will? The law says at the
end. What do we mean by that? The law here means the
logical end, not the physical end. The logical end refers to the
portion after the dispositions but before the attestation clause.
So, it is in the middle. After the last wishes of the testator, his
name follows. It is where he should sign. What is the reason
why it should be the logical end of the will? To prevent
unauthorized insertions. So, even if the dispositions only
reaches the middle portion of the paper signed by the
testator, such is still the logical end being referred to by the
law. It is not the physical end, but it is the logical end of the
will.
What if after reading and signing his notarial will, he realized
that he forgot to include his nephew, and so he made
additional dispositions after his signature, what is the effect of
those additional dispositions in a notarial will? The entire will
is void. Why? Because, there is now a violation of the
requirement that the notarial will must be signed at the logical
end. As I have said, the logical end is that portion after all the
dispositions but before the attestation clause. If you have
provisions after the signature, the signature now ceases to be
located at the logical end. It is now at the middle of the
provisions. Again, in a notarial will, the observance of the
requirements in Article 805 is very important. This merely
refers to the form, not yet to the substance of the will. So, the
will is void in its entirety. Please remember that because this
is not the case in terms of holographic wills.
In holographic wills, you can actually add provisions after the
signature. We will go that later. Just remember that for
notarial wills, the testator should sign at the logical end of the
will. Therefore, he is not allowed to add provisions after his
signature.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
What if the testator really wants to include his nephew in the
will? What should he do? The proper way is to insert or add.
He can either execute a new will or a codicil. That would be
the proper procedure. That is for notarial wills.
Garcia v. Lacuesta
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The law says left margin. Why? The only possible explanation
would be that the margin on the left side is wider. This was
not explained by the authorities. What if you signed not on
the left margin but on the right, top, or bottom? Jurisprudence
says that it does not matter. The will would still be valid. As
signatures would appear at the left, right, top, or bottom
margins, it does not matter because it would still serve the
purpose of identification. You can still identify the will based
on the presence of the signature [regardless of position].
The requirement of marginal signatures is not only limited to
the testator. It extends to the credible witnesses. They should
also sign in the margins. What if there is only one sheet of
paper but it is back-to-back? The back portion contains the
signature of the testator. Is there a need for him to sign at
the front page? Yes. A page is different from a sheet. One
sheet of paper consists of two pages-front and back. All pages
should be signed.
What if the will consists of 4 pages? The first three pages
contains all the dispositions of the testator as well as his
signature. The fourth page contains the attestation clause and
acknowledgment? In this case:
Fernandez v. de Dios
The testator failed to sign the fourth page. Is the will valid?
Yes. Based on the basic principle that the will is the act of the
testator; the attestation clause is the act of the witness; and,
the acknowledgement is the act of the notary public.
Gonzales vs. CA
There are two components of being a CREDIBLE witness:
1.
Those who have all the qualifications under article 820 and
none of the disqualifications under 821. This is determined by
law or statute
2.
Credible
What the law requires for the testator to sign in the margins is
the will. Thus, when the third page only contains the
attestation clause, strictly speaking, the same is no longer
part of the will. The testator need not sign the page, only the
attestation clause. But the witnesses must sign the pages
containing the will and the attestation clause.
First page contains the entire disposition and the second page
contains
only
the
attestation
clause
and
the
acknowledgement. The second page was signed at the bottom
by the attesting witnesses and the testator on the left margin.
The law says the credible witnesses of the will shall sign each
and every page of the will on the left margin except the last.
2.
3.
4.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
As to the second page, if it only contains the attestation
clause and signature there is even no need for the testator to
sign. If she signs doesnt matter even if she did not sign the
will would still be valid because the attestation clause, strictly
speaking is not part of the will.
If the will contains only one page, all the testamentary
dispositions,
the
attestation
clause
and
acknowledgement of course in one page, there is no
need for marginal signatures because the purpose of
marginal signature is already served by the presence of
all the signatures.
Here, if later on the witnesses would be asked to testify as to
the will, if this is the will which you attested 20 years ago they
could already identify the will by the presence of the
signatures.
2.
3.
4.
These are allowed as long as you can identify which is the first
page and so on and do forth. This is because we need a
means to detect the increase or decrease of the pages, the
loss of the pages, the suppression or substitution of pages.
That is why numbering is required.
The law says on the upper part of each page. What if you
placed it at the bottom? It doesnt matter. The location of the
page number will not affect the validity of the will as long as
you have the page number. In fact it can even appear in the
body of the will.
Fernandez vs. de Dios
The page containing the attestation clause was not numbered.
However it does appear in the text of the attestation clause
the words having reference to the number of sheets of the will
including the page number of the attestation. So obviously the
page containing the attestation clause is the fourth page and
hence the SC held that there is substantial compliance.
Here you can still determine the page number even of there
was no clear page number at the top or bottom but it can be
gathered from the statement in the attestation clause so it
appears at the body of the attestation clause. Here again, the
will is valid.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
o
2.
Test of vision
The signing is within the reach of the vision.
2.
Test of position
Jaboneta vs Gustilo
SUBSCRIPTION
1.
4.
Test of apprehension
Even if you did not see but at the back of your mind you
already know that the will is being signed.
Gabriel vs. Mateo
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Reason for the requirement that the signing should be done in
the presence of the testator and in each and every of them: to
avoid fraudulent substitution of the will and to make it more
difficult the invention of false testimonies by the witnesses
since they may be the witness of one another. It would be
difficult to introduce false or perjured testimony.
ATTESTATION CLAUSE
In relation to this, we discussed that the will must be attested
and subscribed by the witnesses in the presence of the
testator and of each and every one of them. We also
discussed and defined the meaning to attest.
Aside from the fact that the will should be attested because
attestation is a mental act, we also need the attestation
clause. Even if in reality the witnesses really attested the will
but without the attestation clause, the will is not valid. Aside
from the ACT there should be that WRITTEN STATEMENT and
that is the attestation clause.
An attestation clause is the declaration made by the
witnesses. It is that clause of an ordinary or notarial where
the witnesses certify that the instrument has been executed
before them and the manner of the execution of the same. It
is a separate memorandum or records of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed.
The purpose here is to preserve in a permanent form a record
of the fact attending the execution of the will. So that in case
of death, absence or failure of memory of the subscribing
witnesses or casualties, the due execution of the will may still
be proved.
This is because usually in testifying to the will it is during
probate and it happens long after the execution of the will.
What if at that time all the witnesses forgot about the will or
all of them died or all of them left the Philippines. So who will
testify? So how do we prove the due execution of the will? We
have the attestation clause which preserves in a permanent
form the facts attendant to the execution of the will. So that is
the purpose why aside from the fact of attesting, we need the
attestation clause.
As we discussed, the witnesses attest to the genuineness of
the signature of the testator and they attest to the due
execution of the will as embodied in the attestation clause.
The attestation clause is the act of the witnesses. It is their
declaration regarding the facts attendant to the execution of
the will. That is why the signatures of the witnesses are
required in the attestation clause.
still serve a double purpose. They can serve tio avow or won
the recitals in the attestation clause and they could also serve
to identify the page.
The case of Azuela is the same as the case of Cagro vs.
Cagro. SC made the same pronouncement that the will was
void because it was not signed at the bottom.
When we say attestation clause it is the act of the witnesses.
They should sign at the end of the attestation clause. SC
pointed out that it would be dangerous if they would just
accept that attestation clause was being signed at the margins
because it would be very easy to just insert an attestation
clause if you just allow signatures in the margins. This is
another safeguard to prevent the future insertion of an
attestation clause in a will that does not otherwise contain an
attestation clause.
Azuela vs. CA
The page containing the attestation clause was signed in the
margins by the witnesses. But they did not sign at the bottom
of the attestation clause. The signatures on the margins were
not considered as substantial compliance.
Marginal signatures purpose is for identification and it does
not matter where they are located. But when we speak of the
attesting signatures, they must be at the bottom to signify
that, those persons who signed, that they own or they avow
the truth of the recitals contained din the attestation clause.
You cannot consider the signatures n the margins as being
directed towards the avowals or recitals contained in the
attestation clause. SC said those marginal signatures are
directed towards a wholly different avowal. They are merely
for identification.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
The difference with the previous case is that the statement of
the number of pages was wrong. It stated 7 but in reality the
will had 8 pages.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
and deed. What is a jurat? It is a statement under oath. There
is nothing in the jurat that complies with Art 806 that the
witnesses should declare that the will is for the testator and
the attestation clause is for the witnesses and was signed by
them voluntarily and intelligently. So, a jurat is not a sufficient
compliance of acknowledgement required under Art 806.
Again, take note, that there has to be a statement where the
Notary Public coerces the testator and the witnesses to
declare before him under pain of perjury that they really
voluntarily and intelligently executed the document. That is
the importance of acknowledgement.
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)
Okay so it is very clear that a blind person can be a testator.
Although there is an additional requirement to read once by
one of the subscribing witnesses and another by the notary
public before whom the will is acknowledged. Now, when do
we consider a person as blind? Does it mean that a blind
person be in total blindness.
Garcia v. Vasquez
Considering the appearance of the will, the acknowledgement
and attestation clause were crammed together into a single
sheet of paper as to save space, then they were typographical
errors. The SC said that it is difficult to understand that so
important a document containing the final disposition of once
worldly possession should be embodied in an informal
instrument. So base on these, the testatrix was not able to
read the will and Art 808 was not complied with. It should
have been complied with because of the condition of her
eyesight, she could only view distant objects but she could not
read print. It is not required that the testator will be totally
blind for you to be considered blind under Art 808.
Again, the reading should be done once by the subscribing
witness and another by the notary public who acknowledged
the same.
Alvarado v. Gaviola
So the will was read allowed by the lawyer who drafted the
will and then the testator had his own copy, he was following
the reading silently, also, the subscribing witness have their
own copies. After the reading, the testator affirmed the
contents of the will. That was the procedure taken in this case
but note that it is not the procedure required under Article
808 because it should have been read once by the subscribing
witness and another by the Notary Public who acknowledged
the same.
In this case, the testator is blind since she cannot read; she
can only see objects at 3 ft. and count fingers but not read. In
here, the law was not followed by letter but in spirit it was. So
here, the SC said as long as the purpose of the law is
complied with which is to ensure the authenticity of the will
then the formal procedure should be brushed aside, also,
when they do not affect its purpose and which taken into
account would only defeat the testators will.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Defects excused under 809
(1) Defects and imperfections in the form of attestation
and
(2) Defects and imperfections in the language used in
the attestation.
Requisites for the application of 809
(1) There are defects and imperfection in the form of the
attestation clause or in the language used therein;
(2) There is absence of bad faith, perjury or fraud or
undue improper pressure or influence;
(3) The will was executed and attested in substantial
compliance with the requirements and
(4) The fact of such execution and attestation is proved.
Now using these four requisites as guidelines can you now
readily ascertain or determine which defects can be excused
on the ground of substantial compliance and which defects
are not excusable? It is not clear when you follow these
requisites. That was observed by Justice Reyes, that the law
doesnt seem to distinguish. It appears that these defects can
cover those intrinsic and extrinsic evidence. Reyes said, if the
rule was so broad that the attestation clause can be cured by
evidence aliunde or extrinsic evidence, the attestation would
of no value in protecting against fraud for really defective
execution. This was also discussed in the case of Caneda v.
CA.
So how do we know which defects are excusable and which
are not excusable?
Abada v. Abaja
still appear although on the margins and they invoke the rule
on substantial compliance.
However, the SC did not allow the will because even the Rule
on Substantial compliance will not cure the defect, the
signatures on the margin avow as to the fact that the
witnesses signed on the margins for the purpose of
identification but they cannot be taken also to avow the
recitals in the attestation clause because the purpose of the
marginal signature is different and lahi pud ang purpose sa
attestation clause.
Now we cannot ask the witnesses, unsa man pirma na ninyo
sa silong og sa kilid? That is not allowed because it is already
introducing extrinsic evidence and it is no longer allowed. You
just limit your examination on the will itself.
Uy Coque v. Sioca
There was failure to state that the will was signed in the
presence of each other. It was not stated in the attestation
clause. But even if in fact the will was really signed by the
witnesses
in
the
presence
of
each
other,
tinuodgyudperowalanka-sulatsa attestation clause. Is that
defect excusable? How do we cure that defect, we would need
the witnesses to testify. That again will be introducing
extrinsic evidence or evidence aliunde. That is not allowed.
The case of Sano
Failure to state that the will was signed on every page thereof
on the left margin in the presence of the testator, you need
again extrinsic evidence.
Taboada v. Rosal
The allegation was that the witnesses did not sign at the
bottom aside from the margins dapatnaa pa dawsa bottom.
According to the SC, aside from the fact that it is not
mentioned under the law, the signatures on the margins
already attests to the genuineness of the will and the due
execution of the will as embodied in the attestation clause. So
there is no need for the witnesses to sign at the bottom of the
page. In that case, the attestation clause did not mention the
number of pages used in the will. The acknowledgement
portion stated that this will consists of two pages including the
page where the disposition is written. So that omission was
supplied by that statement in the acknowledgement, so here
that statement in the acknowledgement can be used to clarify
or cure the defect in the attestation clause. So you dont have
to go out of the will to supply the omission in the attestation
clause. That statement in the acknowledgement is what we
call intrinsic evidence so that is curable.
Cagro v. Cagro
If you remember the attestation clause was signed on the
margins and the bottom was not signed. So the proponents of
the will insists that the will is still valid because the signatures
Villaflor v. Tobias
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
[HOLOGRAPHIC WILLS]
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)
We only have two wills allowed and recognized in our
jurisdiction: (1) Ordinary or Notarial Wills and (2) Holographic
or Holograph wills.
So based on Art 810, it is entirely written, dated and
signed by the hands of the testator.
It is subject to no other form and does not require
acknowledgement, attestation, marginal signatures,
paging, etc., subject also to no other form and may be made
in and out of the Philippines and again need not be
witnessed.
Advantages of executing holographic wills:
It is easier to make
Disadvantages:
It is easier to misunderstand
Code,
DATE
IN WRITING
1.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
testator was of sound mind is the date of the
execution of the will. Without a date, we will not
know that. When did he execute the will.
2.
3.
SIGNATURE
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
declare that the will and the signature are in the handwriting
of the testator.
Take note of the testimony. He should explicitly declare,
meaning he should positively, categorically declare and
identify that this signature is that of the testator.
Maravilla vs. Maravilla
We discussed this before in relation to NOTARIAL WILLS. If
you remember in that case, the witness was asked to identify
the signature of the testator. But the witness could not
declare, could not commit that it is really the signature of the
testator. One reason was that when the will was executed, it
was the first time that he saw the signature of the testator,
and the execution of the will happened around 14 years ago
from the time when he was called to testify. So the SC said
that it is enough that he testifies that at the time when the
will was executed, he was in a position to see. So the test of
position was used. But again, that is a notarial will.
Now were talking of HOLOGRAPHIC WILLS. We have to be
sure that the will presented before the court is really the same
will executed by the testator how many years ago. And the
only way to know, to be sure that it is really the same will, is
to be sure about the signature, the handwriting of the
testator. Because again in holographic wills there are no
witnesses, no notary public, even the testator most of the
time is no longer around. So the only way to know if this is
genuine is to positively and explicitly declare that this is in the
handwriting of the testator. That is the requirement in
holographic wills.
How does the witness explicitly and positively declare that it is
the handwriting of the testator? In your Evidence, you can
identify maybe you saw that it was signed by the testator,
or you can testify that you are familiar with the signature of
the testator. Maybe secretary ka sa testator, so every day you
are confronted with documents bearing his signature, etc. You
are really familiar. That will be the tenor of the testimony of
the witness.
Now the law says probate of holographic wills. What do we
understand by probate?
Probate is the allowance of the will by the court after its due
execution has been proved. Although we will discuss probate
more exhaustively when we go to Article 838. But if there is a
will left by the testator, whether it is a notarial will or a
holographic will, once the testator dies it is not automatic that
the will is given effect, na you are given one hectare under
the will so ipakita na nimo siya sa RoD, okay, mao ni ang will,
gihatag asa akoa ang one hectare, itransfer na sa akoa ng
pangalan. No. The will has to be probated first.
When you say probate, you file a petition in court. The court
will determine whether or not it is the will executed by the
testator. We have here question of identity, WON this is
the same will executed by the testator in his lifetime.
Question of testamentary capacity, WON at the time
when the will was executed, the testator was of sound mind
and he was at least 18 years old. And third, question of due
execution, WON this will was executed by the testator
intelligently, voluntarily without mistake, undue influence,
fraud, violence etc. Those are the matters taken up by the
court during a probate proceeding.
Again, this is how the probate of a holographic will is done.
At least one witness if the will is not contested.
If the will is contested, the law says at least 3 of such
witnesses. Meaning, witnesses who will explicitly declare that
the signature and handwriting are that of the testator.
In the absence of any competent witnesses because again,
holographic wills need not be witnessed, so there might be
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
But in the case of Codoy vs. Calugay, it was really the issue.
The genuineness of the handwriting of the testatrix. The
Supreme Court even said that there were really discrepancies
in the handwriting of the testator in the other documents
compared with the will. There were erasures, the strokes were
different, that was really the major issue that confronted the
Supreme Court. So here the Supreme Court said that it is
mandatory to present the 3 witnesses.
How do we reconcile?
If the issue really, if you are confronted with a case where the
issue is similar to the case of Codoy, na naa gyud didto sa
authenticity and genuineness of the will ang question whether
or not it is the handwriting of the testator, then you answer in
accordance with the ruling of the Supreme Court in the case
of Codoy vs. Calugay. And this is also the later ruling of the
Supreme Court.
But if for example you are given a problem na similar gyud
kayo sa facts sa Azaola case, then most probably the
examiner is referring to the case of Azaola vs. Singson.
But if you really want to top the bar the exam, if the facts are
similar to the case in Azaola, you answer the ruling in Azaola
vs. Singson but you can add, however in the case of Codoy
vs. Calugay, etc. etc.
Again, kung kalimot namo, then the later ruling. (Which is the
Codoy case)
Is there a need to present a copy of the will in court? Of
course it is required. How about if the copy is just a
photocopy or carbon copy, scanned, photostatic copy, picture
sa holographic will? Would that be allowed? Diba you have
already discussed the Best Evidence Rule? Under Rule 130,
Section 3 of the Rules of Court, diba it should be the original
that should be presented. Mao na siya ang general rule, that
the original should be presented. But if the original has been
lost, destroyed, cannot be found, you can present the
photocopy. But of course, if for example you are alleging that
the original is destroyed, you should also prove na it was
destroyed not because it was revoked by the testator,
because if it was destroyed by the testator him with the intent
to revoke, then that will cannot be admitted to probate
because it is already revoked.
Rodelas vs. Aransa
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy.
SC: A photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator
What if wala na gyud copy na nabilin sa holographic will? It
was destroyed, it was burned completely, but without intent
to revoke on the part of the testator. Wala gyuy nabilin at all.
But one person was able to read the will and he memorized
the contents of the will. Well, theres only one disposition in
the will, so he memorized. All of the properties to A. And hes
willing to testify. Could that be possible? Would that testimony
be admitted to prove the execution of the holographic will?
As discussed in the case of:
Gam vs. Yap, 104 Phil 509
This was also discussed in the case of Rodelas vs. Aransa.
The holographic will cannot be admitted into probate. Why?
Because in a holographic will, the best and the only safeguard
as to its authenticity would be the will itself.
How do you determine whether the will is really in the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Is it really required that every additional provision should be
dated and signed? According to Article 813, pwede na, you
add, I also give my land to A, signed, walay date; then later
on nakalimot pud siya, I also give my car to X, signed
napud, walay date. And then ang ika-third, I also want to
give my jewelry to M, dated na and signed. So okay lang
nakadtong uban sa ibabaw, after the testamentary
dispositions, walay date basta nay signature, as long as the
last addition is dated and signed. What is the consequence of
that kind of disposition? All those preceding dispositions which
are not dated are considered to have been executed as of the
date of the last disposition. That is the interpretation.
Pero kung date lang walay signature, then dili siya valid.
Disregard those provisions which are not signed although
dated. Again ha minimum requirement, signed, although not
dated. Basta ang last is dated and signed. That is under
Article 813.
A813. Validated
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
will, you cancel a provision. In that kind of revocation
what the law requires would be:
1. The overt act
2. Intent to revoke or animus revocandi
There is no need for the testator to sign the
cancellation, as long as he cancels with intent to
revoke there is already revocation. So in this case of
Kalaw vs. Relova, the cancellation of the name of
Rosa, diba the Supreme Court said it evinces a
change of mind on the part of the testator so
meaning, there was animus revocandi. And he
cancelled that, so that was an overt act. It was
immediately effective. There is no need for an
authentication for that change of mind to be
effective, because it was actually in the nature of a
revocation. When you revoke, you dont need to
authenticate that with a signature. That is in the case
of Kalaw.
2)
2.
3.
the probate
proceedings
4.
5.
court
has
jurisdiction
over
the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
direct probate in the Philippines of that kind of will. Dili
kinahanglan na naa gyud probate abroad and then reprobate
in the Philippines. What is important is that the petition for the
allowance of the will must show the jurisdictional facts, the
names, ages and residences of the heirs, legatees and
devisees of the testator or decedent, the probable value and
character of the property of the estate, the name of the
person from whom letters were prayed, and if the will has not
been delivered to the court, the name of the person having
custody of it. So the jurisdictional facts also. This will be
discussed in your Special Proceedings.
Just take note that the will can be probated directly in the
Philippines without having to undergo prior probate before a
foreign court.
2.
3.
4.
5.
2.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
3.
2.
3.
4.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Article 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)
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