1

Law on Succession
Laws and Case Doctrines
I.

General Principles
a. Definition and Concept of Succession
i. Art. 712
ii. Art. 774
iii. Art. 1311
b. Kinds of Succession
i. Art. 778 780
ii. Art. 960 in relation to Art. 84 of
the Family Code
iii. Art. 130
iv. Art. 752
v. Art. 1347
c. Opening of Succession
i. Art. 777 in relation to Art. 130,
132, 390-391, 533
ii. Art. 1347
iii. Art.1461
iv. Art. 2253
v. Art. 2263 NCC
vi. Art. 84
vii. Art. 86 of the Family Code
viii. Cases:

Uson v. Del Rosario

RENUNCIATION OF INHERITANCE MADE BY LAWFUL
WIFE FUTURE INHERITANCE, NOT SUBJECT TO
CONTRACT. Although the lawful wife has expressly
renounced her right to inherit any future property
that her husband may acquire and leave upon his
death, such renunciation cannot be entertained for
the simple reason that future inheritance cannot be
the subject of a contract nor can it be renounced (1
Manresa, 6th ed., 123 Osorio vs. Osorio, et al., 41
Phil., 531);
DESCENT AND DISTRIBUTION HUSBAND AND WIFE
RIGHTS OF LAWFUL WIFE AS AFFECTED BY THE NEW

CIVIL CODE. The right of ownership of the lawful

wife of a decedent who had died before the new Civil
Code took effect became vested in her upon his
death, and this is so because of the imperative
provision of the law which commands that the rights
of succession are transmitted from the moment of
death (Art. 657, old Civil Code Ilustre vs. Frondosa,
17 Phil., 321). The new right recognized by the new
Civil Code in favor of the illegitimate children of the
deceased cannot be asserted to the impairment of
the vested right of the lawful wife over the lands in
dispute. While article 2253 of the new Civil Code
provides that rights which are declared for the first
time shall have retroactive effect even though the
event which gave rise to them may have occurred
under the former legislation, yet this is so only when
the new rights do not prejudice any vested or
acquired right of the same origin.
De Borja v. De Borja
Civil law Wills Remedial law Testate and intestate
proceedings Rule of nullity of extrajudicial
settlement prior to probate of will inapplicable to
case at bar. The doctrine of Guevarra vs. Guevarra,
74 Phil. 479, which holds that the presentation of a
will for probate is mandatory and that the settlement
and distribution of an estate on the basis of intestacy
when the decedent left a will is against the law and
public policy, is not applicable where the clear abject
of the settlement was merely the conveyance by the
heir of any and all her individual share and interest,
actual or eventual, in the estate of the decedent and
not the distribution of the said estate among the
heirs before the probate of the will.
Remedial law Testate and intestate proceedings
Settlement entered into by heir in his individual
capacity does not need court approval. Where the
compromise agreement entered into by and between
the various heirs in the personal capacity, the same

is binding upon them as individuals, upon the

perfection of the contract, even without previous
authority of the Court to enter into such agreement.
The only difference between an extrajudicial
compromise and one that is submitted and approved
by the Court, is that the latter can be enforced by
execution proceedings.
Civil law Succession Heir may sell her hereditary
rights to coheir. As owner of her individual share,
an heir could dispose of it in favor of whomsoever
she chose, including another heir of the same
defendant. Such alienation is expressly recognized
and provided for by Article 1088 of the present Civil
Code.
Same Same Case at bar, agreement does not
compromise status of heir and her marriage. A
contract which describes one of the heirs as the heir
and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja,
in itself is a definite admission of such heirs civil
status in relation to the decedent. There is nothing in
the text of the agreement that would show that this
recognition of Ongsingcos status as the surviving
spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
Remedial law Compromise Inability of parties to
draw new agreement does not annul a prior one.
The inability among the heirs to reach a novatory
accord cannot invalidate the original compromise
among them and any of the latter is justified in finally
seeking a court order for the approval and
enforcement of such compromise.

Bonilla v. Barcena
Succession Rights to succession transmitted from
the moment of death of decedent. 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 vests in them even before
judicial declaration of their being heirs in the testate
or intestate proceedings.
Borromeo-Herrera v. Herrera
Civil Law Succession Heirs acquire a right to
succession from the moment of the death of the
deceased. The prevailing jurisprudence on waiver
of hereditary rights is that "the properties included in
an existing inheritance cannot be considered as
belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the
former. Nor do such properties have the character of
future property, because the heirs acquire a right to
succession from the moment of the death of the
deceased, by principle established in article 657 and
applied by article 661 of the Civil Code, according to
which the heirs succeed the deceased by the mere
fact of death. More or less, time may elapse from the
moment of the death of the deceased until the heirs
enter into possession of the hereditary property, but
the acceptance in any event retro acts to the
moment of the death, in accordance with article 989
of the Civil Code. The right is vested, although
conditioned
upon
the
adjudication
of
the
corresponding hereditary portion." (Osorio v. Osorio
and Ynchausti Steamship Co., 41 Phil., 531). The
heirs, therefore, could waive their hereditary rights in
1967 even if the order to partition the estate was
issued only in 1969.

Same Same Waiver of hereditary rights, requisites.

In this case, however, the purported "Waiver of
Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are
essential: (1) the existence of a right (2) the
knowledge of the existence thereof and (3) an
intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to
waive a right or advantage must be shown clearly
and convincingly, and when the only proof of
intention rests in what a party does, his act should be
so manifestly consistent with, and indicative of an
intent to, voluntarily relinquish the particular right or
advantage that no other reasonable explanation of
his conduct is possible.

Rioferio v. Court of Appeals

Remedial Law Actions Party-in-interest Pending the
filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in
behalf of the estate of the decedent in accordance
with the provision of Article 777 of the New Civil
Code. - Pending the filing of administration
proceedings, the heirs without doubt have legal
personality to bring suit in behalf of the estate of the
decedent in accordance with the provision of Article
777 of the New Civil Code that (t)he rights to
succession are transmitted from the moment of the
death of the decedent. The provision in turn is the
foundation of the principle that the property, rights
and obligations to the extent and value of the
inheritance of a person are transmitted through his
death to another or others by his will or by operation
of law.
Same Same Same Court recognized the legal
standing of the heirs to represent the rights and
properties of the decedent under administration
pending the appointment of an administrator. Even
if administration proceedings have already been

commenced, the heirs may still bring the suit if an

administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence
to the heirs in the rules on party representation,
namely Section 3, Rule 3 and Section 2, Rule 87 of
the Rules of Court. In fact, in the case of Gochan v.
Young, this Court recognized the legal standing of the
heirs to represent the rights and properties of the
decedent
under
administration
pending
the
appointment of an administrator.
d. Subject and Object of Succession
i. Art. 775-782
ii. Art. 887
iii. Art. 963-969
iv. Art. 1003
v. Art. 1014
vi. Art. 1024-1057 in relation to Art. 1178,
1311, 1347, 1429
vii. Cases:
Cayetano v. Leonides
Where circumstances demand that intrinsic validity
of testamentary provisions be passed upon even
before the extrinsic validity of will is resolved,
probate court should meet the issue. The third
issue raised deals with the validity of the provisions
of the will. As a general rule, the probate courts
authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testatrixs
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after
the court has declared that the will has been duly
authenticated.
However,
where
practical
considerations demand that the intrinsic validity of
the will bepassed upon, even before it is probated,
the court should meet the issue. (Maninang v. Court
of Appeals, 114 SCRA 478).

Same The U.S. law on succession in the state of

Pennsylvania applies to the intrinsic and extrinsic
validity of the last will and testament of a U.S.
national and resident of Pennsylvania under whose
laws a person may give his entire estate to a
complete stranger.Although on its face, the will
appeared to have preterited the petitioner and thus,
the respondent judge should have denied its
reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the
time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania,
U.S.A. Therefore, under Article 16 par. (2) and 1039
of the Civil Code which respectively provide: x x x x
the law which governs Adoracion Campos will is the
law of Pennsylvania, U.S.A., which is the national law
of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and
that all the estate may be given away by the
testatrix to a complete stranger, the petitioner
argues that such law should not apply because it
would be contrary to the sound and established
public policy and would run counter to the specific
provisions of Philippine Law.
Same Same. It is a settled rule that as regards the
intrinsic validity of the provisions of the will, as
provided for by Article 16 (2) and 1039 of the Civil
Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v.
Bellis (20 SCRA 358).

Parish Priest of Victoria v. Rigor

Settlement of Estate Will of Testator is the first and
principal law in the matter of Testaments. The will
of the testator is the first and principal law in the
matter of testaments. When his intention is clearly
and precisely expressed, any interpretation must be
in accord when it may certainly appear that his

intention was different from that literally expressed

(In re Estate of Caldero, 26 Phil. 2378).
Same Same. One canon in the interpretation of the
testamentary provisions is that the testators
intention is to be ascertained from the words of the
will, taking into consideration the circumstances as
this intention (Art. 789, Civil Code of the
Philippines).
Same A bequest of land to the nearest male relative
of the grantor who would study for the priesthood
construed to mean the grantors nearest male
relative living at the time of his death and not any
indefinite time thereafter. We hold that the said
bequest refers to the testators nearest male relative
living at the time of his death and not to any
indefinite time thereafter. In order to be capacitated
to inherit, the heir, devisee or legatee must be living
at the moment the succession opens, except in case
of representation, when it is proper. The said
testamentary provisions should be sensibly or
reasonably construed. To construe them as referring
to the testators nearest male relative at any time
after his death would render the provisions difficult to
apply and create uncertainty as to the disposition of
his estate. That could not have been his intention.

Reyes v. Court of Appeals

Wills Probate Finality of probate decree. A
probate decree finally and definitively settles all
questions concerning capacity of the testator and the
proper execution and witnessing of his last will and
testament, irrespectiveof whether its provisions are
valid and enforceable or otherwise. As such, the
probate order is final and appealable, and it is so
recognized by express provisions of Section 1 of Rule
109.
Samaniego-Celada v. Abena

Wills and Succession; While it is true that the

attestation clause is not a part of the will, the court,
after examining the totality of the will, is of the
considered opinion that error in the number of pages
of the will as states in the attestation clause is not
material to invalidate the subject will. Anent the
contestants submission that the will is fatally
defective for the reason that its attestation clause
states that the will is composed of three (3) pages
while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of
the notarial will, the same is not accurate. While it is
true the attestation clause is not a part of the will,
the court, after examining the totality of the will, is of
the considered opinion that error in the number of
pages of the will as stated in the attestation clause is
not material to invalidate the subject will. It must be
noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of some
of the pages. The error must have been brought of
an omission of some of the pages. The error must
have been brought about by the honest belief that
the will is the whole instrument consisting of three
(3) pages inclusive of the attestation clause and the
acknowledgement. The position of the court is in
consonance with the doctrine of liberation
enunciated in Art. 809 of the Civil Code which
reads: 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
there in 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.
Same; Petitioner and her siblings are not compulsory
heirs of the decedent under Art. 887 of the Civil Code
and as the decedent validly disposed of her

properties in a will duly executed and probated,

petitioner has no legal right to claim any part of the
decedents estate. We find no reason to disturb the
abovementioned findings of the RTC. Since,
petitioner and her siblings are not compulsory heirs
of the decedent under Art. 887 of the Civil Code and
as the decedent validly disposed of her properties in
a will duly executed and probated, petitioner has no
legal right to claim any part of the decedents estate.
e. Law governing form and content
i. Art. 16-17
ii. Art. 795
iii. Art. 810
iv. Art. 815-819
v. Art. 2263
vi. Cases:
Enriques v. Abadia
WILLS PROBATE OF WILL VALIDITY OF WILLS AS TO
FORM DEPENDS UPON LAW IN FORCE AT TlME OF
EXECUTION TlTLE OF LEGATEES AND DEVISEES
UNDER WILL VESTS FROM TIME OF ExECUTION.The
validity of a will as to form is to be judged not by the
law in force at the time of the testator's death or at
the time the supposed will is presented in court for
probate or when the petition is decided by the court
but at the time the instrument was executed. One
reason in support of the rule is that although the will
operates upon and after the death of the testator,
the wishes of the testator about the disposition of his
estate among his heirs and among the legatees is
given solemn expression at the time the will is
executed, and in reality, the legacy or bequest then
becomes a completed act.
ID.
EXECUTION
OF
WILLS
LAW
SUBSEQUENTLYPASSED,
ADDING
NEW
REQUIREMENTS AS TO EXECUTION OF WILLS
FAILURE TO OBSERVE FORMAL REQUIREMENTS AT
TIME OF EXECUTION INVALIDATES WlLLS HEIRS

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INHERIT BY INTESTATE SUCCESSION LEGISLATURE
CAN NOT VALIDATE VOID WILLS. From the day of
the death of the testator, if he leaves a will, the title
of the legatees and devisees under it becomes a
vested right, protected under the due process clause
of the Constitution against a subsequent change in
the statute adding new legal requirements of
execution of wills, which would invalidate such a will.
By parity of reasoning, when one executes a will
which is invalid for failure to observe and follow the
legal requirements at the time of its execution then
upon his death he should be regarded and declared
as having died intestate, and his heirs will then
inherit by intestate succession, and no subsequent
law with more liberal requirements or which
dispenses with such requirements as to execution
should be allowed to validate a defective will and
thereby divest the heirs of their vested rights in the
estate by intestate succession. The general rule is
that the Legislature cannot validate void wills (57
Am. Jur., Wills, Sec. 231, pp. 192193).
Fluemer v. His
WlLLS EXECUTORS AND ADMINISTRATORS CODE OF
ClVIL PROCEDURE, SECTION 781, AS AMENDED,
APPLIED RIGHT OF SPECIAL ADMINISTRATOR TO
APPEAL FROM DlSALLOWANCE OF A WlLL.The
special administrator of an estate is a "person
interested in the allowance or disallowance of a will
by a Court of First Instance," within the meaning of
section 781, as amended, of the Code of Civil
Procedure, and so may be permitted to appeal to the
Supreme Court from the disallowance of a will.
Dela Cerna v. Potot
Judgments Probate courts Error of law does not
affect jurisdiction, of probate court nor conclusive
effect of its decision. An error of law committed in
admitting a joint will to probate does not affect the

jurisdiction of the probate court nor the conclusive

effect of its final decision.
Same Same Probate decree of joint will affects only
share of deceased spouse. A final probate decree
of a joint will of husband and wife affects only the
share of the deceased spouse and cannot include the
disposition of said joint will, in so far as the estate of
the latter spouse is concerned, must be, on her
death, reexamined and adjudicated de novo.
Wills Effects of validity of joint will as to share of
wife who dies later than the husband.Where a
husband and wife executed a joint will and upon the
death of the husband said will was admitted to
probate by a final decree of the court although
erroneous, and the wife dies later, it is held that said
first decree of probate affects only the estate of the
husband but cannot affect the estate of the wife,
considering that a joint will is a separate will of each
testator and a joint will being prohibited by law, the
estate of the wife should pass upon her death to her
intestate heirs and not to the testamentary heir,
unless some other valid will is shown to exist in favor
of the latter or unless the testamentary heir is the
only heir of said wife.

Estate of Amos Bellis

Wills Succession Conflict of laws Renvoi doctrine.
The doctrine of renvoi is usually pertinent where the
decedent is a national of one country and is
domiciled in another. It does not apply to a case
where the decedent was a citizen of Texas and was
domiciled therein at the time of his death. So that,
even assuming that Texas has a conflicts rule
providing that the domiciliary law should govern
successional rights, the same would not result in a
reference back (renvoi) to Philippine law, but it would
still refer to Texas law. Nonetheless, if Texas has a
conflicts rule, adopting the rule of lex rei sitae, which
calls for the application of the law of the place where

the properties are situated, renvoi would arise, where

the properties involved are found in the Philippines.
Same Foreign laws.In the absence of proof as to
the conflicts rule of Texas, it would be presumed to
be the same as our local conflicts rule.
Same Applicability of national law to succession
Capacity to succeedThe decedent's national law
governs the order of succession, the amount of
successional rights, the intrinsic validity of the
provisions of the will and capacity to succeed.
Same Third paragraph of article 17 of New Civil
Code does not modify article 16. The third
paragraph of article 17 of the New Civil Code is not
an exception to the second paragraph of article 16.
Precisely,
Congress
deleted
the
phrase,
"notwithstanding the provisions of this and the next
preceding article," when it incorporated article 11 of
the old Civil Code as article 17, while reproducing
without substantial change the second paragraph of
article 10 of the old Civil Code, as article 16. The
legislative intent must have been to make the
second paragraph of article 176 a specific provision
in itself which must be applied in testate and
intestate succession. As a further indication of this
legislative intent, Congress added a new provision,
under article 1039, which decrees that capacity to
succeed is governed by the decedent's national law.
Same Legitimes Statutes Special and general
provisions. Whatever public policy and good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. It has specifically
chosen the decedent's national law to govern, inter
alia, the amount of successional rights. Specific
provisions must prevail over general ones.
Same Testamentary provision that successional right
to decedent's estate would be governed by law other
than his national law is void. A provision in a
foreigner's will that his properties should be

II.

distributed in accordance with Philippine law and not

in accordance with his national law is void, being
contrary to article 16 of the New Civil Code.
Same System of legitimes does not apply to estate
of a citizen of Texas. Where the decedent was a
citizen of Texas and under Texas laws there are no
forced heirs, the system of legitimes in Philippine law
cannot be applied to the succession to the
decedent's testate because the intrinsic validity of
the provisions of the decedent's will and the amount
of successional rights are to be determined under
Texas law.

Testamentary Succession
a. Concept of Wills; Testamentary Capacity
and Intent; Notarial Wills; Witnesses to
Wills
i. Art. 783 809
ii. Art. 820 824
iii. Art. 828
iv. Art. 839 (3) & (4)
v. Art. 930
vi. Cases
Suroza v. Honrado, 110 SCRA 388
Same Same Inasmuch as the will written in English
says that it was in a language understood and known
to the testatrix, but also states that it was
translated into the Filipino language, the probate
judge should have readily perceived that the
testatrix is illiterate and the will is void. In the
opening paragraph of the will, it was stated that
English was a language understood and known to
the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix and
translated into Filipino language. (p. 16, Record of
testate case). That could only mean that the will was
written in a language not known to the illiterate
testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code

8
that every will must be executed in a language or
dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator,
is void and was disallowed (Acop vs. Piraso, 52 Phil.
660).
Garcia v. Lacuesta, 90 Phil. 489
WILLS ATTESTATION CLAUSE SIGNING BY ANOTHER
OP TESTATOR'S NAMB AT LATTER'S DIRECTION.
When the testator expressly caused another to sign
the former's name, this fact must be recited in the
attestation clause. Otherwise, the will is fatally
defective.
ID. SIGNATURE OF TESTATOR CROSS. Where the
cross appearing on a will is not the usual signature of
the testator or even one of the ways by which he
signed his name, that cross cannot be considered a
valid signature
Matias v. Salud, L-10751, June 23, 1958
WILLS PROBATE DENIAL BY PROBATE COURT
APPEAL TAKEN BY UNIVERSAL HEIR EFFECT IN THE
INTEREST OF SAID HEIR. Although the probate of the
will and testament of the testatrix was denied by the
Probate Court, the order to this effect is not, as yet,
final and executory. It is pending review on appeal
taken by the universal heir. The probate of said
alleged will being still within the realm of legal
possibility, the universal heir, and executrix
designated in said instrument has a special interest
to protect during the pendency of said appeal. Thus,
in the case of Roxas vs. Pecson (46 Off. Gaz., 2058)
the Supreme Court held' that a widow, designated as
executrix in the alleged will and testament of her
deceased husband, the probate of which had been
denied in an order pending appeal, "has * * * the
same beneficial interest after the decision of the
court disapproving the will, which, is now pending

appeal, because the decision is not yet final and may

be reversed by the appellate Court."
EXECUTOR AND ADMINISTRATOR APPOINTMENT OF
TWO OR MORE SPECIAL ADMINISTRATORS. Where it
appears that there are, at least, two factions among
the heirs of the deceased, representing their
respective interest in the estate, and the probate
Court deems it best to appoint more than one special
administrator, justice and equity demands that both
factions be represented in the management of the
estate of the deceased.

Nera v. Rimando, 18 Phil. 450

EXECUTION OF WlLLS POSITION OF TESTATOR AND
WlTNESS WHEN WILL is SUBSCRIBED. The position
of testator and of the witnesses to a will, at the
moment of the subscription by each, must be such
that they may see each other sign if they choose to
do so.
ID. ID. SIGNING IN THE PRESENCE OF EACH OTHER.
The question whether the testator and the
subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not
depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its
subscription by each of them, but whether at that
moment existing conditions and the position of the
parties, with relation to each other, were such that
by merely casting their eyes in the proper direction
they could have seen each other sign.
ID. ID. ID. ONE WITNESS IN OUTER ROOM WHEN
WILL is SIGNED. If one subscribing witness to a will
is shown to have been in an outer room at the time
when the testator and the other witnesses attach
their signatures to the instrument in an inner room,
the will would be held invalidthe attaching of the
said signatures, under such circumstances, not being
done "in the presence" of the witness in the outer
room.

Icasiano v. Icasiano, 11 SCRA 422

Wills Probate Policy of Court against undue
curtailment of testamentary privileges. The
precedents cited in the case at bar exemplify the
Court's policy to require satisfaction of the legal
requirements in the probate of a will in order to
guard against fraud and bad faith but without undue
or unnecessary curtailment of the testamentary
privilege.
Same Same Handwriting expert must have
sufficient standards of comparison to prove forgery
of testatrix's signature. The opinion of a
handwriting expert trying to prove forgery of the
testatrix's signature fails to convince the court, not
only because it is directly contradicted by another
expert but principally because of the paucity of the
standards used by him (only three other signatures),
considering the advanced age of the testatrix, the
evident variability of her signatures, and the effect of
writing fatigue.
Same Same Variance in ink color not reliable when
writings affixed to different kinds of paper.The
slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable,
considering that the standard and challenged
writings were affixed to different kinds of paper.
Same Same Fraud or undue influence, diversity of
apportionment and prohibition against contest no
evidence of. Neither diversity of apportionment nor
prohibition against contest is evidence of fraud or
undue influence in the execution of a will.
Same Same Fraud and undue influence are
repugnant allegations. Allegations of fraud and
undue influence are mutually repugnant and exclude
each other their joining as grounds for opposing
probate shows absence of definite evidence against
the validity of the will.

Same Same Inadvertent failure of an attesting

witness to affix his signature to one page of a will not
fatal. The inadvertent failure of an attesting
witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient
to justify denial of probate.
Same Same Signed carbon duplicate of will needs
no publication. That the signed carbon duplicate of
a will was produced and admitted without a new
publication does not affect the jurisdiction of the
probate court, already conferred by the original
publication of the petition for probate, where the
amended petition did not substantially alter the first
one filed, but merely supplemented it by disclosing
the existence of said duplicate.

Cruz v. Villasor, 54 SCRA 31

Succession
Wills
Formal
requirements
Acknowledging officer cannot serve as witness at the
same time. The notary public before whom the will
was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge
before himself his having signed the will. To
acknowledge before means to avow to own as
genuine, to assent, to admit, and before means in
front or preceding in space or ahead of.
Consequently, if the third witness were the notary
public himself, he would have to avow, assent or
admit his having signed the will in front of himself.
This cannot be done because he cannot split his
personality into two so that one will appear before
the other to acknowledge his participation in the
making of the will.
Notary public Function of office of notary public.
The function of a notary public is, among others, to
guard against any illegal or immoral arrangements.
That function would be defeated if the notary public
were one of the attesting witnesses. For then he

10
would be interested in sustaining the validity of the
will as it directly involves himself and the validity of
his own act. It would place him in an inconsistent
position
and
the
very
purpose
of
the
acknowledgment, which is to minimize fraud would
be thwarted.
Javellana v. Ledesma, 97 Phil. 258
WILLS ACKNOWLEDGMENT CERTIFICATION OF
NOTARY
THAT
TESTAMENT
WAS
DULY
ACKNOWLEDGED
IS
NOT
PART
OF
ACKNOWLEDGMENT OR TESTAMENTARY ACT. The
subsequent signing and sealing by the notary of his
certification
that
the
testament
was
duly
acknowledged by the participants therein is no part
of the acknowledgment itself nor of the testamentary
act. Hence their separate execution out of the
presence of the testatrix and her witnesses cannot
be said to violate the rule that testaments should be
completed
without
interruption
(Andalis
vs.
Pulgueras, 59 Phil., 643), or, as the Roman maxim
puts it, "uno eodem die ac tempore in eodem loco".
Caneda v. Court of Appeals, 222 SCRA 781
Wills and Succession There are two (2) kinds of wills.
In addition, the ordinary will must be
acknowledged before a notary public by the testator
and the attesting witnesses, hence it is likewise
known as a notarial will. Where the testator is deaf or
a deafmute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise,
he should designate two persons who will read the
will and communicate its contents to him in a
practicable manner. On the other hand, if the testator
is blind, the will should be read to him twice once,
by anyone of the witnesses thereto, and then again,
by the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written,

dated, and signed by the hand of the testator

himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common
requirement in both kinds of wills is that they should
be in writing and must have been executed in a
language or dialect known to the testator.
Same Attestation clause valid even if in a language
not known to testator. However, in the case of an
ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the
testator since it does not form part of the
testamentary disposition. Furthermore, the language
used in the attestation clause likewise need not even
be known to the attesting witnesses. The last
paragraph of Article 805 merely requires that, in such
a case, the attestation clause shall be interpreted to
said witnesses.
Same Purposes of attestation clause. The purpose
of the law in requiring the clause to state the number
of pages on which the will is written is to safeguard
against possible interpolation or omission of one or
some of its pages and to prevent any increase or
decrease in the pages whereas the subscription of
the signatures of the testator and the attesting
witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is
the very same instrument executed by the testator
and attested to by the witnesses.
Same Same. Further, by attesting and subscribing
to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation
clause. The attestation clause, therefore, provides
strong legal guaranties for the due execution of a will
and to insure the authenticity thereof. As it
appertains only to the witnesses and not to the
testator, it need be signed only by them. Where it is
left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the

11

clause on a subsequent occasion in the absence of

the testator and the witnesses.
Same Words and Phrases Attestation and
Subscription distinguished. It will be noted that
Article 805 requires that the witnesses should both
attest and subscribe to the will in the presence of the
testator and of one another. Attestation and
subscription differ in meaning. Attestation is the
act of the senses, while subscription is the act of the
hand. The former is mental, the latter mechanical,
and to attest a will is to know that it was published as
such, and to certify the facts required to constitute
an actual and legal publication but to subscribe a
paper published as a will is only to write on the same
paper the names of the witnesses, for the sole
purpose of identification.
Same Attestation clause which does not state that
testament was signed by the witnesses in the
presence of one another and of the testator renders
the will null and void. What is fairly apparent upon
a careful reading of the attestation clause herein
assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states
as well the number of pages that were used, the
same does not expressly state therein the
circumstance that said witnesses subscribed their
respective signatures to the will in the presence of
the testator and of each other. The phrase and he
has signed the same and every page thereof, on the
spaces provided for his signature and on the left
hand margin, obviously refers to the testator and
not the instrumental witnesses as it is immediately
preceded by the words as his Last Will and
Testament. On the other hand, although the words
in the presence of the testator and in the presence
of each and all of us may, at first blush, appear to
likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the

testator signing in the presence of the witnesses

since said phrase immediately follows the words he
has signed the same and every page thereof, on the
spaces provided for his signature and on the left
hand margin. What is then clearly lacking, in the
final logical analysis, is the statement that the
witnesses signed the will and every page thereof in
the presence of the testator and of one another. It is
our considered view that the absence of that
statement required by law is a fatal defect or
imperfection which must necessarily result in the
disallowance of the will that is here sought to be
admitted to probate.
Same Mere defects in form in the attestation clause
do not render will void. We stress once more that
under Article 809, the defects or imperfections must
only be with respect to the form of the attestation or
the language employed therein. Such defects
orimperfections would not render a will invalid should
it be proved that the will was really executed and
attested in compliance with Article 805. In this
regard, however, the manner of proving the due
execution and attestation has been held to be limited
to merely an examination of the will itself without
resorting to evidence aliunde, whether oral or
written.
Same Same Defects in attestation clause which
require submission of parol evidence not mere
defects of form. In the case at bar, contrarily,
proof of the acts required to have been performed by
the attesting witnesses can be supplied only by
extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no
basis whatsoever from which such facts may be
plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by
the instrumental witnesses, oblivious of the fact that
he is thereby resorting to extrinsic evidence to prove

12

the same and would accordingly be doing by

indirection what in law he cannot do directly.
Same Same Same. It may thus be stated that the
rule, as it now stands, is that omission which can be
supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed.
However, those omissions which cannot be supplied
except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately,
of the will itself.

Garcia v. Vasquez, 32 SCRA 489

Succession Wills Execution of wills Where testator
is blind, will must be read to him twice Reasons.
Where the testator is blind, the will must be read to
him twice as required by Article 808 of the Civil Code.
The reason for this is to make the provisions thereof
known to him, so that he may be able to object if
they are not in accordance with his wishes. Failure to
comply with this requirement makes the will invalid.
Settlement of estate of deceased persons
Administrators Where administrator holds adverse
interest to estate, he may be removed. Where the
administrator hold interest adverse to the estate or
by his conduct, demonstrated his unfitness or
unsuitableness to discharge the trust, he should be
removed from the administration from the estate
Taboada v. Rosal
Words and Phrases Testamentary Succession Wills
The terms attestation and subscription, defined.
It must be noted that the law uses the terms
attested and subscribed. Attestation consists in
witnessing the testators execution of the will in order
to see and take note mentally that those things are
done which the statute requires for the execution of
a will and that the signature of the testator exists as

a fact. On the other hand, subscription is the signing

of the witnesses names upon the same paper for the
purpose of identification of such paper as the will
which was executed by the testator. (Ragsdale v. Hill,
269 SW 2d 911).
Same Same Same The attesting witnesses may
sign at the lefthand margin of the pages of a will
instead of at the end of the will. Insofar as the
requirement of subscription is concerned, it is our
considered view that the will in this case was
subscribed in a manner which fully satisfies the
purpose of identification. The signatures of the
instrumental witnesses on the left margin of the first
page of the will attested not only to the genuineness
of the signature of the testatrix but also the due
execution of the will as embodied in the attestation
clause.
Same Same Same The law on the formal
requirements of a Will should be liberally construed.
While
perfection
in
drafting
is
desirable,
unsubstantial departures should be ignored.While
perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should
be ignored, especially where the authenticity of the
will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449). The law is to be liberally construed, the
underlying and fundamental objective permeating
the provisions on the law on wills in this project
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.
This objective is in accord with the modern tendency
in respect to the formalities in the execution of a
will.
Same Same Same Failure of attestation clause to
state number of pages would have been fatal had

13
not the Will at bar consisted only of two pages and
the acknowledgment clause states that the Will has
only two pages.We have examined the will in
question and noticed that the attestation clause
failed to state the number of pages used in writing
the will. This would have been a fatal defect were it
not for the fact that, in this case, it is discernible from
the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and
her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as
Pagina dos comprises the attestation clause and
the acknowledgment. The acknowledgment itself
states that This Last Will and Testament consists of
two pages including this page.
Alvarado v. Gaviola, G.R. No. 74695, September
14, 1993
Civil Law Wills Article 808 applies not only to blind
testators but also, to those who, for one reason or
another, are incapable of reading their wills.Clear
from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason
or another, are incapable of reading the(ir) will(s).
Since Brigido Alvarado was incapable of reading the
final drafts of his will and codicil on the separate
occasions of their execution due to his poor,
defective, or blurred vision, there can be no
other course for us but to conclude that Brigido
Alvarado comes within the scope of the term blind
as it is used in Art. 808. Unless the contents were
read to him, he had no way of ascertaining whether
or not the lawyer who drafted the will and codicil did
so conformably with his instructions.
Same Same Same The purpose of reading the will
twice is to make known to the incapacitated testator

the contents of the document before signing and to

give him an opportunity to object if anything is
contrary to his instructions. Article 808 requires
that in case of testators like Brigido Alvarado, the will
shall be read twice once, by one of the instrumental
witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to
make known to the incapacitated testator the
contents of the document before signing and to give
him an opportunity to object if anything is contrary to
his instructions.
Same Same Same Same Court held in a number of
occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied.
This Court has held in a number of occasions that
substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution
of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to
be so rigid and inflexible as to destroy the
testamentary privilege.
Same Same Same Same Although there should be
strict compliance with the substantial requirements
of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed
aside when they do not affect its purpose and which,
when taken into account, may only defeat the
testators will. The spirit behind the law was
served though the letter was not. Although there
should be strict compliance with the substantial
requirements of the law in order to insure the
authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its
purpose and which, when taken into account, may
only defeat the testators will.

Gonzales v. Court of Appeals, 90 SCRA 183

14

Will Settlement of Estate It is presumed that a

witness to a will has the qualifications prescribed by
law, unless the contrary is established by the
oppositor. We reject petitioners contention that it
must first be established in the record the good
standing of the witness in the community, his
reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes
are presumed of the witness unless the contrary is
proved otherwise by the opposing party.
Same Same Same Words competent witness and
credible witness compared. In the strict sense,
the competency of a person to be an instrumental
witness to a will is determined by the statute, that is
Arts. 820 and 821, Civil Code, whereas his credibility
depends on the appreciation of his testimony and
arises from the belief and conclusion of the Court
that said witness is telling the truth. Thus, in the case
of Vda. de Aroyo v. El Beaterio del Santissimo Rosario
de Molo, No. L22005, May 3, 1968, the Supreme
Court held and ruled that: Competency as a witness
is one thing, and it is another to be a credible
witness, so credible that the Court must accept what
he says. Trial courts may allow a person to testify as
a witness upon a given matter because he is
competent, but may thereafter decide whether to
believe or not to believe his testimony.
Same Same To be considered a credible witness
to a will it is not mandatory that witness good
community standing and probity be first established.
In fine, We state the rule that the instrumental
witnesses in order to be competent must be shown
to have the qualifications under Article 820 of the
Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible,
that is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established on
record that the witnesses have a good standing in
the community or that they are honest and upright or

reputed to be trustworthy and reliable, for a person is

presumed to be such unless the contrary is
established
otherwise.
In other words,
the
instrumental witnesses must be competent and their
testimonies must be credible before the court allows
the probate of the will they have attested.
Same Same Same Attestation clause best evidence
of date the will was signed. The attestation clause
which Matilde Orobia signed is the best evidence as
to the date of signing because it preserves in
permanent form a recital of all the material facts
attending the execution of the will. This is the very
purpose of the attestation clause which is made for
the purpose of preserving in permanent form, a
record of the facts attending the execution of the will,
so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may
still be proved.
Same Same Same Fact that there was conflict of
testimony as to identity of photographer who took a
photograph of the signing and attestation of the will,
not a requirement of law, is of minor importance.
What matters most is the photograph itself. The
law does not require a photographer for the
execution and attestation of the will. The fact that
Miss Orobia mistakenly identified the photographer
as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was
signed because what matters here is not the
photographer but the photograph taken which clearly
portrays Matilde Orobia herself, her cowitnesses
Celso Gimpaya and Maria Gimpaya, Isabel Gabriel
and Atty. Paraiso.
Same Same It cannot be expected that the
testimony of all the witness will be identical in all
their
minutest
details.
These
are
indeed
unimportant details which could have been affected
by the lapse of time and the treachery of human
memory such that by themselves would not alter the

15

probative value of their testimonies on the true

execution of the will, (Pascua vs. de la Cruz, 28 SCRA
421, 424) for it cannot be expected that the
testimony of every person will be identical and
coinciding with each other with regard to details of
an incident and that witnesses are not expected to
remember all details. Human experience teach us
that contradictions of witnesses generally occur in
the details of certain incidents, after a long series of
questionings, and far from being an evidence.
Same Same The three instrumental witnesses to
the will constitute the best evidence to the making of
the will. Petitioners exacerbation centers on the
supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged
evasions, inconsistencies and contradictions. But in
the case at bar, the three instrumental witnesses
who constitute the best evidence of the willmaking
have testified in favor of the probate of the will. So
has the lawyer who prepared it, one learned in the
law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament.
The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim
whatsoever and by anyone, much less the petitioner,
that they were not genuine. In the last and final
analysis, the herein conflict is factual and We go back
to the rule that the Supreme Court cannot review and
revise the findings of fact of the respondent Court of
Appeals.

Guerrero v. Bihis, G.R. No. 174144, April 17, 2007

Wills and Succession Notarial Law Words and
Phrases A notarial will that is not acknowledged
before a notary public by the testator and the
instrumental witnesses is void and cannot be
accepted for probate An acknowledgment is the act
of one who has executed a deed in going before

some competent officer and declaring it to be his act

or deed, and in the case of a notarial will, that
competent officer is the notary public. One of the
formalities required by law in connection with the
execution of a notarial will is that it must be
acknowledged before a notary public by the testator
and the witnesses. This formal requirement is one of
the indispensable requisites for the validity of a will.
In other words, a notarial will that is not
acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be
accepted for probate. An acknowledgment is the act
of one who has executed a deed in going before
some competent officer and declaring it to be his act
or deed. In the case of a notarial will, that competent
officer is the notary public.
Same Same The acknowledgment of a notarial will
coerces the testator and the instrumental witnesses
to declare before an officer of the law, the notary
public, that they executed and subscribed to the will
as their own free act or deed Acknowledgment can
only be made before a competent officer, that is, a
lawyer duly commissioned as a notary public. The
acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that
they executed and subscribed to the will as their own
free act or deed. Such declaration is under oath and
under pain of perjury, thus paving the way for the
criminal prosecution of persons who participate in
the execution of spurious wills, or those executed
without the free consent of the testator. It also
provides a further degree of assurance that the
testator is of a certain mindset in making the
testamentary dispositions to the persons instituted
as heirs or designated as devisees or legatees in the
will. Acknowledgment can only be made before a
competent officer, that is, a lawyer duly
commissioned as a notary public.

16

Same Same Outside the place of his commission, a

notary public is bereft of power to perform any
notarial acthe is not a notary public An
acknowledgment taken outside the territorial limits
of the officers jurisdiction is void as if the person
taking itwere wholly without official character. A
notary publics commission is the grant of authority
in his favor to perform notarial acts. It is issued
within and for a particular territorial jurisdiction
and the notary publics authority is coextensive with
it. In other words, a notary public is authorized to
perform notarial acts, including the taking of
acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is
bereft of power to perform any notarial act he, is not
a notary public. Any notarial act outside the limits of
his jurisdiction has no force and effect. As this Court
categorically pronounced in Tecson v. Tecson, 61 Phil.
781 (1935): An acknowledgment taken outside the
territorial limits of the officers jurisdiction is void as
if the person taking it were wholly without official
character.
Same Same The violation of a mandatory or a
prohibitory statute renders the act illegal and void
unless the law itself declares its continuing validity.
Article 5 of the Civil Code provides: ART. 5. Acts
executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law
itself authorizes their validity. The violation of a
mandatory or a prohibitory statute renders the act
illegal and void unless the law itself declares its
continuing validity. Here, mandatory and prohibitory
statutes were transgressed in the execution of the
alleged
acknowledgment.
The
compulsory
language of Article 806 of the Civil Code was not
complied with and the interdiction of Article 240 of
the Notarial Law was breached. Ineluctably, the acts
of the testatrix, her witnesses and Atty. Directo were
all completely void.

Lee v. Tambago, A.C. No. 5281, February 12, 2008

Succession Wills Words and Phrases A will is an act
whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate. A will is an act whereby a
person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition
of his estate, to take effect after his death. A will may
either be notarial or holographic.
Same Same Notarial Law The object of solemnities
surrounding the execution of wills is to close the door
on bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and
authenticity. The law provides for certain
formalities that must be followed in the execution of
wills. The object of solemnities surrounding the
execution of wills is to close the door on bad faith
and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and
authenticity. A notarial will, as the contested will in
this case, is required by law to be subscribed at the
end thereof by the testator himself. In addition, it
should be attested and subscribed by three or more
credible witnesses in the presence of the testator
and of one another.
Same Same Same A notarial will attested by only
two witnesses is void.The will in question was
attested by only two witnesses, Noynay and Grajo.
On this circumstance alone, the will must be
considered void. This is in consonance with the rule
that acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
Same Same Same Words and Phrases An
acknowledgment is the act of one who has executed
a deed in going before some competent officer or
court and declaring it to be his act or deed The
acknowledgment in a notarial will has a twofold

17

purpose (1) to safeguard the testators wishes long

after his demise, and (2) to assure that his estate is
administered in the manner that he intends it to be
done. The Civil Code likewise requires that a will
must be acknowledged before a notary public by the
testator and the witnesses. The importance of this
requirement is highlighted by the fact that it was
segregated from the other requirements under
Article 805 and embodied in a distinct and separate
provision. An acknowledgment is the act of one who
has executed a deed in going before some
competent officer or court and declaring it to be his
act or deed. It involves an extra step undertaken
whereby the signatory actually declares to the notary
public that the same is his or her own free act and
deed. The acknowledgment in a notarial will has a
twofold purpose: (1) to safeguard the testators
wishes long after his demise and (2) to assure that
his estate is administered in the manner that he
intends it to be done.
Same Same Same Notaries public are required to
certify that the party to every document
acknowledged before him had presented the proper
residence certificate (or exemption from the
residence tax), and to enter its number, place of
issue and date as part of such certification,
formalities which are mandatory and cannot be
disregarded.As the acknowledging officer of the
contested will, respondent was required to faithfully
observe the formalities of a will and those of
notarization. As we held in Santiago v. Rafanan, 440
SCRA 98 (2004): The Notarial Law is explicit on the
obligations and duties of notaries public. They are
required to certify that the party to every document
acknowledged before him had presented the proper
residence certificate (or exemption from the
residence tax) and to enter its number, place of
issue and date as part of such certification. These
formalities
are
mandatory
and
cannot
be
disregarded, considering the degree of importance

and evidentiary weight attached to notarized

documents. A notary public, especially a lawyer, is
bound to strictly observe these elementary
requirements.
Same Same Same A notary public, by having
allowed the decedent to exhibit an expired residence
certificate, failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act.
In the issuance of a residence certificate, the law
seeks to establish the true and correct identity of the
person to whom it is issued, as well as the payment
of residence taxes for the current year. By having
allowed decedent to exhibit an expired residence
certificate, respondent failed to comply with the
requirements of both the old Notarial Law and the
Residence Tax Act. As much could be said of his
failure to demand the exhibition of the residence
certificates of Noynay and Grajo.
Same Same Same While a notary publics failure to
file in the archives division a copy of the notarized
will is not a cause for disciplinary action, he could be
faulted for failure to make the necessary entries
pertaining to the will in his notarial register. On the
issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to
the archives division, Article 806 provides: Art. 806.
Every will must be acknowledged before a notary
public by the testator and the witness. 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. (emphasis supplied) Respondents failure,
inadvertent or not, to file in the archives division a
copy of the notarized will was therefore not a cause
for disciplinary action. Nevertheless, respondent
should be faulted for having failed to make the
necessary entries pertaining to the will in his notarial
register. The old Notarial Law required the entry of
the following matters in the notarial register, in
chronological order: 1. nature of each instrument

18

executed, sworn to, or acknowledged before him 2.

person executing, swearing to, or acknowledging the
instrument 3. witnesses, if any, to the signature 4.
date of execution, oath, or acknowledgment of the
instrument 5. fees collected by him for his services
as notary 6. give each entry a consecutive number
and 7. if the instrument is a contract, a brief
description of the substance of the instrument.
Same Same Same Evidence Secondary Evidence
A photocopy of a notary publics register is not
admissible as evidence of the entry of the execution
of the will where he failed to comply with the
requirements for the admissibility of secondary
evidence. A photocopy is a mere secondary
evidence. It is not admissible unless it is shown that
the original is unavailable. The proponent must first
prove the existence and cause of the unavailability of
the original, otherwise, the evidence presented will
not be admitted. Thus, the photocopy of
respondents notarial register was not admissible as
evidence of the entry of the execution of the will
because it failed to comply with the requirements for
the admissibility of secondary evidence.
Same Same Same Defects in the observance of the
solemnities prescribed by law render the entire will
invalid. Notaries public must observe with utmost
care and utmost fidelity the basic requirements in
the performance of their duties, otherwise, the
confidence of the public in the integrity of notarized
deeds will be undermined. Defects in the observance
of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly
in view of the importance and delicate nature of a
will, considering that the testator and the witnesses,
as in this case, are no longer alive to identify the
instrument and to confirm its contents. Accordingly,
respondent must be held accountable for his acts.
The validity of the will was seriously compromised as
a consequence of his breach of duty.

Samaniego-Celada v. Abena, G.R. No. 145545, June

30, 2008
Wills and Succession While it is true that the
attestation clause is not a part of the will, the court,
after examining the totality of the will, is of the
considered opinion that error in the number of pages
of the will as stated in the attestation clause is not
material to invalidate the subject will. Anent the
contestants submission that the will is fatally
defective for the reason that its attestation clause
states that the will is composed of three (3) pages
while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of
the notarial will, the same is not accurate. While it is
true that the attestation clause is not a part of the
will, the court, after examining the totality of the will,
is of the considered opinion that error in the number
of pages of the will as stated in the attestation clause
is not material to invalidate the subject will. It must
be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of some
of the pages. The error must have been brought
about by the honest belief that the will is the whole
instrument consisting of three (3) pages inclusive of
the attestation clause and the acknowledgement.
The position of the court is in consonance with the
doctrine of liberal interpretation enunciated in
Article 809 of the Civil Code which reads: 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.
Same Petitioner and her siblings are not compulsory
heirs of the decedent under Article 887 of the Civil

19
Code and as the decedent validly disposed of her
properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the
decedents estate. We find no reason to disturb
the abovementioned findings of the RTC. Since,
petitioner and her siblings are not compulsory heirs
of the decedent under Article 887 of the Civil Code
and as the decedent validly disposed of her
properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the
decedents estate.
B. Holographic Wills; Incorporation of Document by
Reference; Codicils; Revocation of
Wills
and
Testamentary Dispositions; Republication and Revival
of Wills
1. Art. 804
2. Art. 810-813
3. Art. 825-839
4. Art. 1335
5. Art. 1337-1338
6. Cases:
Casiano v. Court of Appeals, 158 SCRA 451
Civil Law Wills Revocation of Will To constitute an
effective revocation, the physical act of destruction of a
will must be coupled with animus revocandi on the part
of the testator. It is clear that 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.
Same Same Same Same Intention to revoke must be
accompanied by overt physical act of burning, tearing,

obliterating or cancelling the will by the testator or by

another person in his presence and under his express
direction.In this case, while animus revocandi, or the
intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice.
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 proferred as a
will were burned.
Molo v. Molo, 90 Phil. 37
WILLS REVOCATION BY SUBSEQUENT WILL EFFECT
OF VOID REVOCATORY CLAUSE. A subsequent will
containing a clause revoking a previous will, having
been disallowed for the reason that it was not
executed in conformity with the provisions of section
618 of the Code of Civil Procedure as to the making
of wills, cannot produce the effect of annuling the
previous will, inasmuch as said revocatory clause is
void (Samson vs. Naval, 41 Phil., 838).
ID. PROBATE DEPENDENT RELATIVE REVOCATION.
Even in the supposition that the destruction of the
original will by the testator could be presumed from
the failure of the petitioner to produce it in court,
such destruction cannot have the effect of defeating

20
the prior will where it is founded on the mistaken
belief that the later will has been validly executed
and would be given due effect. The earlier will can
still be admitted to probate under the principle of
"dependent relative revocation". The theory on which
this principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly
manifest where he executed two wills on two
different occasions and instituted his wife as his
universal heir.
Rodelas v. Aranza, 119 SCRA 16
Civil Law Wills Holographic Will Admissibility of
photos tatic or xerox copy of a lost or destroyed will.
However, 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 with the
standard writings of the testator. In the case of Gan
vs. Yap, 104 Phil 509, the Court ruled 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. The will itself must be presented
otherwise, it shall produce no effect. The law regards
the
document
itself as
material
proof
of
authenticity. But, in Footnote 8 of said decision, it
says that Perhaps it may be proved by a
photographic
or
photostatic
copy.
Even
a
mimeographed or carbon copy or by other similar
means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and
tested before the probate court. Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the

authenticity of the handwriting of the deceased can

be determined by the probate court.
Azaola v. Singson, 109 Phil. 102
WILLS AND LAST TESTAMENT HOLOGRAPHIC WILL
PROBATE OF REQUISITE AS TO NUMBER OF
WITNESSES. Since the authenticity of the
holographic will was not contested, proponent was
not required to produce more than one witness but
even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code
cannot be interpreted as 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, it becomes obvious that the
existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the
proponent
ID. ID. ID. PRODUCTION OF WITNESSES MERELY
PREREQUISITE. Where the will is holographic, no
witness need be present and the rule requiring
production of three witnesses must be deemed
merely permissive if absurd results are to be
avoided'.
ID. RESORT TO EXPERT EVIDENCE. Under Article
811, the resort to expert evidence is conditioned by
the words "if the Court deem it necessary", which
reveals that what the law deems essential is that the
Court should be convinced of the will's authenticity.
Cuenco v. Court of Appeals, L-24742, October 26,
1973
Settlement of estates Jurisdiction Venue Residence
of deceased not element of jurisdiction, but of venue.
For purposes of determining what court has
jurisdiction in the settlement of a deceaseds estate,
the residence of the deceased or the location of his

21

estate is not an element of jurisdiction over the

subject matter but merely of venue.
Same Same Court first taking cognizance of
settlement of the estate of a decedent. Section 1,
Rule 73 on venue does not state that the court with
whom the testate or intestate petition is first filed
acquires exclusive jurisdiction. The Rule precisely and
deliberately provides that the court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts. A fair reading of the Rule since
it deals with venue and comity between courts of
equal and coordinate jurisdictionindicates that the
court with whom the petition is first filed, must also
first take cognizance of the settlement of the estate
in order to exercise jurisdiction over it to the
exclusion of all other courts. Conversely such court,
may upon learning that a petition for probate of the
decedents last will has been presented in another
court where the decedent obviously had his conjugal
domicile and resided with his surviving widow and
their minor children, and that the allegation of the
intestate petition before it stating that the decedent
died intestate may actually be false, may decline to
take cognizance of the petition and hold the petition
before it in abeyance, and instead defer to the
second court which has before it the petition for
probate of the decedents alleged last will. This is
exactly what the Cebu court did. Upon petitioner
widows filing with it a motion to dismiss Lourdes
intestate petition, it issued its order holding in
abeyance its action on the dismissal motion and
deferred to the Quezon City court, awaiting its action
on the petition for probate before that court. Implicit
in the Cebu courts order was that if the will was
duly admitted to probate by the Quezon City court,
then it would definitely decline to take cognizance of
Lourdes intestate petition which would thereby be
shown to be false and improper, and leave the

exercise of jurisdiction to the Quezon City court, to

the exclusion of all other courts.
Same Where Quezon City court did not act without
jurisdiction in admitting to probate will of decedent.
Under the facts of the case and where respondents
submitted to the Quezon City court their opposition
to probate of the will, but failed to appear at the
scheduled hearing despite due notice, the said court
cannot be declared, as the appellate court did, to
have acted without jurisdiction in admitting to
probate the decedents will and appointing petitioner
widow as executrix thereof in accordance with the
testators testamentary disposition.
Same Testate proceedings take precedence over
intestate proceedings. ln accordance with settled
jurisprudence in this jurisdiction, testate proceedings
for the settlement of the estate of a deceased person
take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that,
if in the course of intestate proceedings pending
before a court of first instance it is found that the
decedent had left a last will, proceedings for the
probate of the latter should replace the intestate
proceedings even it at that stage an administrator
had already been appointed x x x. This, however, is
understood to be without prejudice that should the
alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
Same Jurisdiction Opposition to jurisdiction of trial
court in settlement proceedings should be by appeal.
Under section 1, Rule 73, the Quezon City courts
assumption of jurisdiction over the decedents estate
on the basis of the will duly presented for probate by
petitioner widow and finding that Quezon City was
the first choice of residence of the decedent, who
had his conjugal home and domicile thereinwith
the deference in comity duly given by the Cebu court
could not be contested except by appeal from said

22

court in the original case, except when want of

jurisdiction appears on the record.
Same Jurisdictional facts in probate proceedings.
The jurisdictional facts in probate proceedings
under section 2, Rule 76 of the Rules of Court are the
death of the decedent, his residence at the time of
his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country,
his having left his estate in such province.
Same When proceedings for settlement of estate
will not be annulled even if court had improper
venue.
The
mischievous
effect
in
the
administration of justice of considering the question
of residence as affecting the jurisdiction of the trial
court and annulling the whole proceedings only to
start all over again the same proceedings before
another court of the same rank in another province is
too obvious to require comment.
Same Same. lt would be unfair imposition upon
petitioner as the one named and entitled to be
executrix of the decedents last will and settle his
estate in accordance therewith, and a disregard of
her rights under the rule on venue and the law on
jurisdiction to require her to spend much more time,
money and effort to have to go from Quezon City to
the Cebu court every time she has an important
matter of the estate to take up with the probate
court.

Codoy v. Calugay, 312 SCRA 333

Wills and Succession Holographic Wills Statutory
Construction Words and Phrases Article 811 of the
Civil Code is mandatory Shall in a statute
commonly denotes 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.We are convinced, based on
the language used, that Article 811 of the Civil Code
is mandatory. The word shall connotes a mandatory

order. We have ruled that shall in a statute

commonly denotes 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.
Same Same Same The goal to be achieved by
Article 811 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. Laws are enacted to achieve a goal
intended and to guide against an evil or mischief that
aims to prevent. In the case at bar, the goal to
achieve 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.
Same Same Same The possibility of a false
document being adjudged as the will of the testator
cannot be eliminated, 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. In the case of Ajero vs. Court of Appeals,
we said that the object of the 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
of 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, that law requires
three witnesses to declare that the will was in the
handwriting of the deceased.

23

Roberts v. Leonides, 129 SCRA 33

Civil Law Wills Testate proceeding, proper where
decedent died with two wills. 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 (Art. 838,
Civil Code sec. 1, Rule 75, Rules of Court).
Same Same Probate of will mandatory Settlement
in an intestate proceeding of an estate of a person
who died testate, anomalous Consolidation of
intestate case with testate proceeding, proper Case
at bar. The probate of the will is mandatory
(Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249
Baluyot vs. Pao, L42088. May 7, 1976, 71 SCRA 86).
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. Court of Appeals, 139 SCRA 206
Succession Wills Jurisdiction The fact that the
probate court declared a devise made in a will null
and void will be sustained where no useful purpose
will be served by requiring the filing of a separate
civil action and restricting the court only to the issue
of extrinsic validity of the will. We are of the
opinion that in view of certain unusual provisions of
the will, which are of dubious legality, and because of
the motion to withdraw the petition f or probate
(which the lower court assumed to have been filed
with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been
established. 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, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang v.
Ramagosa, L23135, December 26, 1967, 21 SCRA
1369 Cacho v. Udan, L19996, April 30, 1965, 13
SCRA 693). Same Same Same Same. We pause
to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of
probate or if the court rejects the will, probability
exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet
head on the issue of the validity 01 the provisions of
the will in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all,
there exists a justiciable controversy crying f or
solution.
Same Same A devise given by a married man
estranged from his wife for 22 years prior to his
death, to a woman with whom he has been living for
said period of time is void. Moreover, the
prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are
living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even
assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because
the testator admitted he was disposing the
properties to a person with whom he had been living
in concubinage.

Nuguid v. Nuguid, L-23445, June 23, 1966

Wills Succession Probate of will Courts area of
inquiry is limited to extrinsic validity of will When

24

Court may rule on intrinsic validity. In a proceeding

for the probate of a will, the courts area of inquiry is
limited to an examination of, and resolution on, the
extrinsic validity of the will, the due execution
thereof, the testatrixs testamentary capacity and
the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared
that the will has been duly authenticated. However,
where practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the Court should meet that
issue.
Same Preterition Omission of forced heirs in the
will. Where the deceased left no descendants,
legitimate or illegitimate, but she left forced heirs in
the direct ascending line her parents, and her
holographic will does not explicitly disinherit them
but simply omits their names altogether, the case is
one of preterition of the parents, not a case of
ineffective disinheritance
Same Preterition distinguished from disinheritance.
Preterition consists in the omission in the
testators will of the forced heirs or anyone of them,
either because they are not mentioned therein, or,
though mentioned, they are neither instituted as
heirs nor are expressly disinherited. (Neri vs. Akutin,
72 Phil., 325). Disinheritance, in turn, is a
testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause
authorized by law. (Justice J.B.L. Reyes and R.C.
Puno, An Outline of Philippine Civil Law, 1966 ed.,
Vol. III, p. 8, citing cases.) Disinheritance is always
voluntary preterition, upon the other hand, is
presumed to be involuntary (Snchez Romn,
Estudios de Derecho Civil, 2nd edition, Volume n. 2.o,
p. 1131).
Same Effects flowing from preterition and
disinheritance. The effects flowing from preterition

are totally different from those of disinheritance.

Preterition under Article 854 of the New Civil Code
shall annul the institution of heir. This annulment is
in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also
annul the institution of heirs, but only insofar as it
may prejudice the person disinherited, which last
phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961 Edition,
p. 172). Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which
the disinherited heirs have been illegally deprived.
Same When institution of heirs is void.Where the
One sentence will institutes the petitioner as the
sole, universal heir and preterits the parents of the
testatrix, and it contains no specific legacies or
bequests, such universal institution of petitioner, by
itself, is void. And intestate succession ensues.
Same
When
legacies
and
devises
merit
consideration. Legacies and devises merit
consideration only when they are so expressly given
as such in a will. Nothing in Article 854 of the New
Civil Code suggests that the mere institution of a
universal heir in a willvoid because of preterition
would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There
must be, in addition to such institution, a
testamentary disposition granting him bequests or
legacies apart and separate from the nullified
institution of heir.
Same Institution of heirs cannot be considered a
legacy. If every case of institution of heirs may be
made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then
the provisions of Articles 814 and 851 of the old Civil
Code, regarding total or partial nullity of the
institution, would be absolutely meaningless and will

25
never have any application at all. And the remaining
provisions contained in said articles concerning the
reduction of inofficious legacies or betterments would
be a surplusage because they would be absorbed by
Article 817 of the same Code.
Kalaw v. Relova, L-40207, September 28, 1984
Settlement of Estate Ordinarily erasures or
alterations in a holographic will does not invalidate
the will itselfOrdinarily, when a number of erasures,
corrections, and interlineations made by the testator
in a holographic Will have not been noted under his
signature, x x x the Will is not thereby invalidated as
a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave
an identical commentary when he said la omision de
la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de
Abril de 1895.
Same Where a holographic will has designate only
one heir to the entire estate and the designation was
cancelled and another sole heir designated, without
the cancellation being authenticated by full signature
of testator, entire will is void. 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.

Same Same. 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.

In the Matter of the Instestate Estate of Andres de

Jesus v. Roxas
Civil Law Wills Execution of Wills Purpose of liberal
trend of the Civil Code in the manner of execution of
wills in case of doubt is to prevent intestacy. This
will not be the first time that this Court departs from
a strict and literal application of the statutory
requirements regarding the due execution of Wills.
We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose
of which, in case of doubt is to prevent intestacy.
Same Same Same Admission to probate of the will
which has been executed in substantial compliance
with the formalities of the law, and the possibility of
bad faith and fraud is obviated. Thus, the
prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment
of testamentary privilege (Icasiano v. Icasiano, 11
SCRA 422). 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).
Same Same Same Purpose of the solemnities
surrounding the execution of wills. The purpose of
the solemnities surrounding the execution of Wills
has been expounded by this Court in Abangan v.
Abangan, 40 Phil. 476) where we ruled that: The
object of the solemnities surrounding the execution

26

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. x x x
Same Same Same Holographic Will Absence of
evidence of bad faith and fraud in the execution of a
holographic will and absence of any substitution of
wills and testaments Finding that the will was
entirely written, dated and signed and no question of
its genuineness and due execution, correct.We
have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wills and
Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de
Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her.
There is also no question as to its genuineness and
due execution. All the children of the testatrix agree
on the genuineness of the holographic Will of their
mother and that she had the testamentary capacity
at the time of the execution of said Will.
Same Same Same General rule that the date in a
holographic will should include the day, month and
year of execution Exception, is the absence of
appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the will Date
Feb./61 appearing in a holographic will, valid,
under the principle of substantial compliance. 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.

Ajero v. Court of Appeals, G.R. No. 106720,

September 15, 1994
Succession Wills Holographic Wills Probate
Proceedings The grounds enumerated in the Civil
Code and Rules of Court for the disallowance of wills
are exclusive Issues in a petition to admit a
holographic will to probate.Section 9, Rule 76 of
the Rules of Court provides the cases in which wills
shall be disallowed. In the same vein, Article 839 of
the New Civil Code enumerates the grounds for
disallowance of wills. These lists are exclusive no
other grounds can serve to disallow a will. Thus, in a
petition to admit a holographic will to probate, 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 bylaw (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.
Same Same Same Same Statutory Construction
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.
We reiterate what we held in Abangan vs.
Abangan, 40 Phil. 476, 479 (1919), that: The object
of the 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 of the right to make a will. So
when an interpretation already given assures such

27

ends, any other interpretation whatsoever, that adds

nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators
last will, must be disregarded. For purposes of
probating nonholographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805
and 806 of the New Civil Code
Same Same Same Same Failure to strictly observe
other formalities will not result in the disallowance of
a holographic will that is unquestionably handwritten
by the testator.In the case of holographic wills, on
the other hand, what assures authenticity is the
requirement that they be totally autographic or
handwritten by the testator himself, as provided
under Article 810 of the New Civil Code. Failure to
strictly observe other formalities will not result in the
disallowance of a holographic will that is
unquestionably handwritten by the testator.
Same Same Same Same The requirement of
Article 813 of the New Civil Code affects the validity
of the dispositions contained in the holographic will,
but not its probate.A reading of Article 813 of the
New Civil Code 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.
Same Same Same Same Unauthenticated
alterations, cancellations or insertions do not
invalidate a holographic will, unless they were made
on the date or on testators signature. Likewise, a
holographic will can still be admitted to probate,
notwithstanding noncompliance with the provisions
of Article 814. Thus, unless the unauthenticated
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.
Same Same Same Same Only the requirements of
Article 810 of the New Civil Codeand not those
found in Articles 813 and 814are essential to the
probate of a holographic will.It is also proper to
note that the requirements of authentication of
changes and signing and dating of dispositions
appear in provisions (Articles 813 and 814) separate
from that which provides for the necessary conditions
for the validity of the holographic will (Article 810).
The distinction can be traced to Articles 678 and 688
of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. This
separation and distinction adds support to the
interpretation that only the requirements of Article
810 of the New Civil Codeand not those found in
Article 813 and 814 of the same Codeare essential
to the probate of a holographic will.
Same Same Same Same Probate Courts While
courts in probate proceedings are generally limited
to pass only upon the extrinsic validity of the will
sought to be probated, in exceptional cases, courts
are not powerless to do what the situation constrains
them to do, and pass upon certain provisions of the
will.As a general rule, courts in probate
proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not
powerless to do what the situation constrains them
to do, and pass upon certain provisions of the will. In
the case at bench, decedent herself indubitably
stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question
her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot

28
validly dispose of the whole property, which she
shares with her fathers other heirs.
Dorotheo v. Court of Appeals, G.R. No. 108581,
December 8, 1999
Same Same Probate proceedings deals generally
with the extrinsic validity of the will sought to be
probated. It should be noted that probate
proceedings deals generally with the extrinsic
validity of the will sought to be probated, particularly
on three aspects: whether the will submitted is
indeed, the decedents last will and testament
compliance with the prescribed formalities for the
execution of wills the testamentary capacity of the
testator and the due execution of the last will and
testament.
Same Same What includes due execution of a will.
Under the Civil Code, due execution includes a
determination of whether the testator was of sound
and disposing mind at the time of its execution, that
he had freely executed the will and was not acting
under duress, fraud, menace or undue influence and
that the will is genuine and not a forgery, that he was
of the proper testamentary age and that he is a
person not expressly prohibited by law from making
a will.
Same Same 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 thetestator 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 given
effect.The intrinsic validity is another matter and
questions regarding the same may still be raised
even after the will has been authenticated. Thus, it
does notnecessarily follow that an extrinsically valid
last will and testament is always intrinsically valid.

Even if the will was validly executed, if the testator

provides for dispositions that deprives or impairs the
lawful heirs of their legitime orrightful inheritance
according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be given
effect. This is specially so when the courts had
already determined in a final and executory decision
that the will is intrinsically void. Such determination
having attained that character of finality is binding
on this Court which will no longer be disturbed. Not
that this Court finds the will to be intrinsically valid,
but that a final and executory decision of which the
party had the opportunity to challenge before the
higher tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies provided
by law constitutes waiver. And if the party does not
avail of other remedies despite its belief that it was
aggrieved by a decision or court action, then it is
deemed to have fully agreed and is satisfied with the
decision or order.
Maloles II v. Phillips, G.R. No. 129505, January 31,
2000
Remedial Law Courts Wills In cases for the probate
of wills, it is well settled that the authority of the
court is limited to ascertaining the extrinsic validity
of the will.In cases for the probate of wills, it is
wellsettled that the authority of the court is limited to
ascertaining the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely
executed the will in accordance with the formalities
prescribed by law. Ordinarily, probate proceedings
are instituted only after the death of the testator, so
much so that, after approving and allowing the will,
the court proceeds to issue letters testamentary and
settle the estate of the testator. The cases cited by
petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for
probate of the will of a living testator under the
principle of ambulatory nature of wills.

29

III.

Same Same Same Jurisdiction The different

branches comprising each court in one judicial region
do not possess jurisdictions independent of and
incompatible with each other. Indeed, the
jurisdiction over probate proceedings and settlement
of estates with approximate value of over
P100,000.00 (outside Metro Manila) or P200,000.00
(in Metro Manila) belongs to the regional trial courts
under B.P. Blg. 129, as amended. The different
branches comprising each court in one judicial region
do not possess jurisdictions independent of and
incompatible witheach other. It is noteworthy that,
although Rule 73, 1 applies insofar as the venue of
the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the
same court from taking cognizance of the settlement
of the estate of the testator after his death.
Necessarily, therefore, Branch 65 of the RTC of
Makati City has jurisdiction over Sp. Proc. No. M4343.
Same Same Same Only if the appointed executor is
incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer
the estate.Petitioner, as nephew of the testator, is
not a compulsory heir who may have been preterited
in the testators will. Nor does he have any right to
intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since
the testator instituted or named an executor in his
will, it is incumbent upon the Court to respect the
desires of the testator. Only if the appointed executor
is incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer
the estate. None of these circumstances is present in
this case.
Legitime and Collation
A. Legitime
a. Art. 872
b. Art. 886-913 (excluding Art. 891)

c. Art.
d. Art.
B. Collation
a. Art.
b. Art.
C. Cases

1347
39 of PD 603
914
1061-1077

Rosales v. Rosales, 148 SCRA 69

Civil Law Succession A surviving spouse is not an
intestate heir of his or her parentinlaw. There is no
provision in the Civil Code which states that a widow
(surviving spouse) is an intestate heir of her
motherinlaw. The entire code is devoid of any
provision which entitles her to inherit from her
motherinlaw either by her own right or by the right of
representation. The provisions of the Code which
relate to the order of intestate succession (Articles
978 to 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the State as
the final intestate heir. The conspicuous absence of a
provision which makes a daughterinlaw an intestate
heir of the deceased all the more confirms our
observation. If the legislature intended to make the
surviving spouse an intestate heir of the parentinlaw,
it would have so provided in the Code.
Same Same Neither is a widow (surviving spouse) a
compulsory heir of her parentinlaw in accordance
with the provisions of Article 887 of the Civil Code.
The aforesaid provision of law refers to theestate of
the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It
does not apply to the estate of a parent in law.
Indeed, the surviving spouse is considered a third
person as regards the estate of the parentinlaw. We
had occasion to make this observation in Lachenal v.
Salas, 71 SCRA 262 265, L42257, June 14, 1976, to
wit: "We hold that the title to the fishing boat should
be determined in Civil Case No. 3597 (not in the
intestate proceeding) because it affects the lessee

30
thereof, Lope L. Leoncio, the decedent's soninlaw,
who, although married to his daughter or compulsory
heir, is nevertheless a third person with respect to
his estate. x x x."
Dizon-Rivera v. Dizon, 33 SCRA 554
Succession
Testamentary
succession
Wills
Interpretation of provisions of wills Intention of
testator paramount.The testator's wishes and
intention constitute the first and principal law in the
matter of testaments, and to paraphrase an early
decision of the Supreme Court of Spain, when
expressed clearly and precisely in his last will
amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with
by his executors, heirs and devisees and legatees,
and neither these interested parties nor the courts
may substitute their own criterion for the testator's
wiIl.
Same Same Same Partition of estate in will is valid.
Where the testator in her will specified each real
property in her estate and designated the particular
heir among her compulsory heirs and grandchildren
to whom she bequeathed the same, the
testamentary disposition was in the nature of a
partition of her estate by will. This is a valid partition
of her estate, as contemplated and authorized in the
first paragraph of Article 1080 of the Civil Code. This
right of a testator to partition his estate is subject
only to the right of compulsory heirs to their legitime.
Same Same Same Interpretation of wills Effect of
use of words "I bequeath" in testament.The
repeated use of the words "I bequeath" in the
testamentary
dispositions
acquire
no
legal
significance, such as to convert the same into
devises to be taken solely from the free one half
disposable portion of the estate where the testator's
intent that his testamentary dispositions were by way
of adjudications to the beneficiaries as heirs and not

as mere devisees, is clear and that said dispositions

were borne out by the use of phrase "my heirs in this
testament" referring to the "devisees."
Same Same Collation Does not apply where no
donations were made by testator during her lifetime.
Articles 1061 and 1063 of the Civil Code on
collation do not apply to a case of a distribution and
partition of the entire estate by the testatrix, without
her having made any previous donations during her
lifetime which would require collation to determine
the legitime of each heir nor having left merely some
properties by will which would call for collation.
Same Same Partition of estate in will Heirs cannot
compel payment of their legitime in real estate
instead of money as specified in the will. The
forced heirs may not legally insist on their legitime
being completed with real properties of the estate
instead of being paid in cash as provided in the will.
The properties are not available for the purpose
where the testatrix had specifically partitioned and
distributed them to her heirs, and the heirs are called
upon, as far as feasible to comply with and give
effect to the intention of the testatrix as solemnized
in her will by implementing her manifest wish of
transmitting the real properties intact to her named
beneficiaries under the will. That the purchasing
value of the Philippine peso has greatly declined
since the testatrix' death provides no legal basis or
justification for overturning the wishes and intent of
the testatrix. The transmission of rights to the
succession are transmitted from the moment of
death of the decedent and accordingly, the value
thereof must be reckoned as of then, as otherwise,
estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the
values of the currency and properties of the estate.

De Roma v. Court of Appeals, 152 SCRA 205

31

Civil Law Succession Intestacy Collation Fact that

a donation is irrevocable does not necessarily
exempt the donated properties from collation as
required under Art. 1061, Civil Code Given the
precise language of the deed of donation the
decedentdonor would have included an express
prohibition to collate if that had been the donor's
intention. We agree with the respondent court that
there is nothing in the above provisions expressly
prohibiting the collation of the donated properties. As
the said court correctly observed, the phrase "sa
pamamagitan ng pagbibigay na di na mababawing
muli" merely described the donation as "irrevocable"
and should not be construed as an express
prohibition against collation. The fact that a donation
isirrevocable does not necessarily exempt the subject
thereof from the collation required under Article
1061. We surmise from the use of such terms as
"legitime" and "free portion" in the deed of donation
that it was prepared by a lawyer, and we may also
presume he understood the legal consequences of
the donation being made. It is reasonable to
suppose, given the precise language of the
document, that he would have included therein an
express prohibition to collate if that had been the
donor's intention. Anything less than such express
prohibition will not suffice under the clear language
of Article 1062
Same Same Same Same Intention to exempt
donated properties from collation should be
expressed plainly and unequivocally as an exception
to the general rule in Art. 1062, Civil Code Absent
such a clear indication of that intention, the rule not
the exception should be applied. The intention to
exempt from collation should be expressed plainly
and unequivocally as an exception to the general
rule announced in Article 1062. Absent such a clear
indication of that intention, we apply not the
exception but the rule, which is categorical enough.

Locsin v. Court of Appeals, 206 SCRA 383

Civil Law Succession The rights to a persons
succession are transmitted from the moment of his
death and do not vest in his heirs until such time.
The trial court and the Court of Appeals erred in
declaring the private respondents, nephews and
nieces of Doa Catalina J. Vda. de Locsin, entitled to
inherit the properties which she had already disposed
of more than ten (10) years before her death. For
those properties did not form part of her hereditary
estate, i.e., the property and transmissible rights
and obligations existing at the time of (the
decedents), death and those which have accrued
thereto since the opening of the succession. The
rights to a persons succession are transmitted from
the moment of his death, and do not vest in his heirs
until such time. Property which Doa Catalina had
transferred or conveyed to other persons during her
lifetime no longer formed part of her estate at the
time of her death to which her heirs may lay claim.
Same Same Prescription Trial court and the Court
of Appeals erred in not dismissing the action for
annulment and reconveyance on the ground of
prescription.Apart
from
the
foregoing
considerations, the trial court and the Court of
Appeals erred in not dismissing this action for
annulment and reconveyance on the ground of
prescription.
Commenced
decades
after
the
transactions had been consummated, and six (6)
years after Doa Catalinas death, it prescribed four
(4) years after the subject transactions were
recorded in the Registry of Property, whether
considered an action based on fraud, or one to
redress an injury to the rights of the plaintiffs. The
private respondents maynot feign ignorance of said
transactions because the registration of the deeds
was constructive notice thereof to them and the
whole world.

32

Manongsong v. Estimo, 404 SCRA 683

(facts)
She is entitled to her legitime. The Deed of Sale
[Exhs 4 & 41 (sic)] did not at all provide for the
reserved legitime or the heirs, and, therefore it has
no force and effect against Agatona Guevarra and
her six (6) legitimate children including the
grandchildren, by right of representation, as
described in the order of intestate succession. The
same Deed of Sale should be declared a nullity ab
initio. The law on the matter is clear. The compulsory
heirs cannot be deprived of their legitime, except on
(sic) cases expressly specified by law like for instance
disinheritance for cause. x x x (Emphasis supplied)
Spouses Joaquin v. Court of Appeals, 416 SCRA 263
(Ruling)
Petitioners do not have any legal interest over the
properties subject of the Deeds of Sale. As the
appellate court stated, petitioners right to their
parents properties is merely inchoate and vests only
upon their parents death. While still living, the
parents of petitioners are free to dispose of their
properties. In their overzealousness to safeguard
their future legitime, petitioners forget that
theoretically, the sale of the lots to their siblings does
not affect the value of their parents estate. While
the sale of the lots reduced the estate, cash of
equivalent value replaced the lots taken from the
estate.
Arellano v. Pascual, 638 SCRA 826
Succession Collation Words and Phrases The term
collation has two distinct concepts: first, it is a mere
mathematical operation by the addition of the value
of donations made by the testator to the value of the
hereditary estate and second, it is the return to the
hereditary estate of property disposed of by lucrative

title by the testator during his lifetime.The term

collation has two distinct concepts: first, it is a mere
mathematical operation by the addition of the value
of donations made by the testator to the value of the
hereditary estate and second, it is the return to the
hereditary estate of property disposed of by lucrative
title by the testator during his lifetime. The purposes
of collation are to secure equality among the
compulsory heirs in so far as is possible, and to
determine the free portion, after finding the legitime,
so that inofficious donations may be reduced.
Collation takes place when there are compulsory
heirs, one of its purposes being to determine the
legitime and the free portion. If there is no
compulsory heir, there is no legitime to be
safeguarded.
Same Same Siblings are collateral relatives and,
therefore, are not entitled to any legitimethat part
of the testators property which he cannot dispose of
because the law has reserved it for compulsory heirs.
The records do not show that the decedent left any
primary, secondary, or concurring compulsory heirs.
He was only survived by his siblings, who are his
collateral relatives and, therefore, are not entitled to
any legitimethat part of the testators property
which he cannot dispose of because the law has
reserved it for compulsory heirs. The compulsory
heirs may be classified into (1) primary, (2)
secondary, and (3) concurring. The primary
compulsory heirs are those who have precedence
over and exclude other compulsory heirs legitimate
children and descendants are primary compulsory
heirs. The secondary compulsory heirs are those who
succeed only in the absence of the primary heirs the
legitimate parents and ascendants are secondary
compulsory heirs. The concurring compulsory heirs
are those who succeed together with the primary or
the secondary compulsory heirs the illegitimate
children, and the surviving spouse are concurring
compulsory heirs.

33

Same Same Where a person does not have any

compulsory heirs entitled to legitime, he is at liberty
to donate all his properties, even if nothing is left for
his siblings collateral relatives to inherit.The
decedent not having left any compulsory heir who is
entitled to any legitime, he was at liberty to donate

all his properties, even if nothing was left for his

siblings collateral relatives to inherit. His donation to
petitioner, assuming that it was valid, is deemed as
donation made to a stranger, chargeable against
the free portion of the estate. There being no
compulsory heir, however, the donated property is
not subject to collation.