Succession First Exam
del Rosario
Succession in General
The subject is actually divided in two parts: (1) Wills and (2) Succession.
The first part deals with wills or what we call testate or testamentary succession. The
second part deals with succession in general which covers intestate succession and
the other concepts related to succession.
Why do we have the law on succession?
When you say succession, what is the first thing that comes to mind?
Succession in Political law:
LGC - when the mayor becomes incapacitated
Constitution - when the President dies, or becomes permanently
incapacitated, he is succeeded by the VP.
Matters discussed in Succession: What will happen when a person dies. How can a
person dispose of his properties after death. What are the formalities when it comes
to executing a will. How is his estate divided. To whom shall the estate be given. How
to partition the estate.
What are bases of succession? Why do we have a law on succession? Do we have an
inherit right to succeed to the properties of our predecessors?
1) Natural Law — It is in the nature of man to provide for those who he will
leave behind.
2) Socio-Economic Postulate — To prevent properties from becoming idle. If
nobody succeeds to the parcels of land of a certain person, the parcels of
land will just remain unused and idle. So, this is to the effect that even if
the owner of the property is gone, the property is still there and can be
utilized for productive purposes.
3) Attribute of Ownership — If you remember your law on property, we have
Art. 428:
The owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover it.
A person has the right to enjoy and dispose of a thing. That is part of his
ownership. He may dispose of the thing. This right is not only limited
during his lifetime. As part of his ownership, he can also determine how
his properties will be disposed of after his death. But the law says, without
other limitations, than those established by law. So even though he may
dispose of his properties as an attribute of ownership even after his death,
this is subject to limitations provided for by law.
Provision on succession in Constitutional Law.
Sec. 7, Art. XII of the 1987 Constitution.
Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.
GR: Foreigners cannot acquire private lands in the Philippines.
What is the kind of succession is being referred to here which allows foreigners to
inherit/acquire private lands in the Philippines?
E: Foreigners may inherit through intestate succession or legal succession or
succession by operation of law or succession to the legitime in testamentary
succession.
Why?
It would be very easy to circumvent the prohibition if the same allows
testamentary succession. Foreigners would just pay a dying person to include
him in his will. There would be a time that no land will belong to any Filipino.
Remember that this can also apply to testamentary succession in the sense that the
legitimes (portion of a person’s estate which is reserved by law to his compulsory
heirs.) If a person has a will, it does not mean that that person’s foreigner child will
not be able to inherit. He can still inherit if that is his legitime. Because legitimes is
also forced succession. It is provided for by law.
So the constitutional provision refers to legal succession or succession to the
legitime in testamentary succession.
RAMIREZ VS. RAMIREZ
111 SCRA 82
FACTS: Jose Eugenio Ramirez, a Filipino national died in Spain. His widow, Marcelle
is French who lives in Paris. His companion, Wanda is Austrian who lives in Spain.
Jorge and Roberto (heirs in the will) opposed the project of partition on the ground
that the grant of a usufruct over real property in the Philippines in favor of Wanda
Wrobleski, who is an alien, violates Section 5, Article III of the Philippine
Constitution.
ISSUE: Whether the usufruct over the real properties of the estate in favor of Wanda
is void because it violates the constitutional prohibition against the acquisition of
lands by aliens.
RULING: THE CONSTITUTIONAL PROVISION WHICH ENABLE ALIENS TO ACQUIRE
PRIVATE LANDS DOES NOT EXTEND TO TESTAMENTARY SUCCESSION. For
otherwise the prohibition will be for naught and meaningless. Any alien would be able
to circumvent the prohibition by paying money to a Philippine landowner in exchange
for a devise of a piece of land.
The usufruct in favor of Wanda is valid because a usufruct, albeit a real right, does
not vest title to the land in the usufructuary and it is the vesting of title to land in
favor of aliens which is prescribed by the Constitution.
1/2 - legitime
1/2 - free portion to Roberto and Jorge in naked ownership and the usufruct to
Wanda with a simple substitution in favor of Juan Pablo Jankowski and Horace
Ramirez.
This case enunciates what kind of succession is being referred to in Sec. 7, Art. XII of
the 1987 Constitution.
KINDS OF SUCCESSION:
as to effectivity:
1) succession inter vivos — “during the lifetime”
- similar to donation inter vivos
- it is a gratuitous disposition during the lifetime of the transferror
- governed by the law on donation
2) succession mortis causa — “upon death”
- this is the succession we will be discussing
- also called succession proper
- takes effect after the death of the decedent
Art. 728. Donations are to take effect upon the death of the donor
partake of the nature of testamentary provisions, and shall be
governed by the rules established in the Title on Succession.
If that gratuitous disposition is to take effect upon death, such will be governed by
the laws on succession. If it takes effect during the lifetime of the transferror, that is
governed by the laws on donation.
It is very important to know whether a disposition is inter vivos or mortis cause.
Because they are governed by different formalities. If you intend that the transfer
should take effect during the lifetime, you follow the formalities of donations. If you
intend that the transfer be effected after death, you follow the formalities of wills.
What happens if you interchange? The transfer shall not be valid.
DONATIONS WILLS
succession inter vivos succession mortis causa
takes effect during the lifetime takes effect upon death
governed by the laws on donations governed by the laws on succession
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1. it says that it is effective upon the death of the donor

DONATIONS WILLS
2. in the event that the donee should day before the donor, the present donation
shall be rescinded
FORMALITIES: 3. To classify the donation as inter vivos simply because it is founded on love and
Personal property affection is erroneous. Because love and affection also underlies the transfers
‣ can be made orally as long as mortis causa. Succession is also founded on love and affection.
there is simultaneous Thus the transfer was not effective because it was embodied in a deed of donation
delivery. which observed the formalities of a deed of donation and not of wills.
Have to comply with the formalities of
If more than P5000
wills which depend on whether it is a
‣ must be made in writing
holographic or notarial will. MAGLASANG VS. CABATINGAN
(does not have to be in a
public document) GR 131953, June 5, 2002
Real property, regardless of the value FACTS: Conchita Cabatingan executed in favor of her brother, Petitioner Nicolas
‣ donation and acceptance Cabatingan, a Deed of Conditional Donation Inter Vivos for House and Lot covering
must be in a public document 1/2 portion of the former’s house and located in Cot-cot, Liloan, Cebu. 4 other deeds
of donation were also executed in favor of Petitioners. These deeds of donation
What causes confusion is sometimes the document is named “Deed of Donation” but contain similar provisions:
the content is to the effect that the transfer is made upon the death. Thus we have That for and in consideration of the love and affection of the DONOR for the
the following cases. DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by
way of donation, unto the DONEE the above-described property, together
with the buildings and all improvements existing thereon, to become
GANUELAS VS. CAWED effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the
401 SCRA 447, April 24, 2003 event that the DONEE should die before the DONOR, the present donation
shall be deemed automatically rescinded and of no further force and effect;
FACTS: The document was denominated as “Deed of Donation.” It had the following
controversial provisions:
Respondents filed with the RTC an action for the annulment and/or declaration of
For and in consideration of the love and affection which the donor has
nullity of deeds of donations and accounting seeking for the annulment of the 4
for the donee and of the faithful services the latter has rendered in the past
deeds of donation executed Respondents allege, that documents are void for failing
to the former, the said donor does by this presence, transfer and convey by
to comply with the provisions of the Civil Code regarding formalities of wills and
way of donation unto the donee the property above described to become
testaments, considering that these are donations mortis causa.
effective upon the death of the donor but in the event that the donee should
die before the donor, the present donation shall be deemed rescinded and of
Petitioners insist that the donor are inter vivos donations as these were made by the
no further force and effect.
late Conchinta Cabatingan in consideration of the love and affection of the donor for
the donee, and there is nothing in the deeds which indicate that the donations were
It was argued that since it stated “For in consideration of the love and affection
made in considertaion of Cabatingan’s death. In addition, petitioners contend that the
which the donor has for the donee,” this is donation proper/inter vivos. Because
stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory
donations are founded upon considerations of love and affection.
condition that confirms the nature of the donation as inter vivos.
On the other hand, it was contended that it was donation mortis causa.
ISSUE: Is the donation mortis causa or inter vivos?
RULING:
THE DOCUMENT WAS IN THE FORM OF A DONATION. The donation as well as the
IT IS A DONATION MORTIS CAUSA.
acceptance were both in a public document. But if it is inter vivos, the transfer would
1. the donations do not contain any clear provision that intends to pass proprietary
not be valid. If it is mortis causa, it has to be in the form of a last will and testament.
rights to Petitioners prior to Cabatingan’s death
2. The phrase to become effective upon the death of the DONOR admits of no other
ISSUE: Is it donation inter vivos or mortis causa?
interpretation but that Cabatingan did not intend to transfer the ownership of
RULING: SC enumerated the 3 distinguishing characteristics of a donation mortis
the properties to petitioners during her lifetime. Petitioners themselves
causa.
expressly confirmed the donations as mortis causa in the following Acceptance
1) it conveys no title or ownership to the transferee before the death of the
and Attestation clauses, uniformly found in the subject deeds of donation, to
transferror or what amounts to the same thing that the transferror shall retain
wit:
the ownership and control over the property while alive
3. The donations were made in consideration of the love and affection of the donor
If he retains ownership, whether full (retain the title and right to use) or
does not qualify the donations as inter vivos because transfers mortis causa may
naked (retain the title but allow the transferree to harvest or use the land) it
be made for the same reason.
is donation mortis causa.
2) That before the death, the transfer shall be revocable by the transferror at will,
IN A DONATION MORTIS CAUSA, THE RIGHT OF DISPOSITION IS NOT TRANSFERRED
ad nutum. But revocability may be provided for indirectly by means of a reserved
TO THE DONEE WHILE THE DONOR IS STILL ALIVE. In determining whether a
power in the donor to dispose of the properties conveyed; and
donation is one of mortis causa, the ff. characteristics must be taken into account:
As long as the donor is alive, he can revoke the transfer. If it is a donation
(1) It conveys no title or ownership to the transferee before the death of the
inter vivos, the same are not revocable at will. The law allows revocation only
transferor; or what amounts to the same thing, that the transferor should retain
on specific grounds which also may be stipulated in the donation. In other
the ownership (full or naked) and control of the property while alive;
words, if the revocation can be done by the will of the donor, (without any
(2) That before his death, the transfer should be revocable by the transferor at will,
reason) then it is donation mortis causa. If the donor reserves the right to
ad nutum; but revocability may be provided for indirectly by means of a reserved
dispose the property, that means he has not parted with the ownership over
power in the donor to dipose of the properties conveyeed; and
the same. That means, the donation is revocable at will.
(3) that the transfer should be void if the transferor should survive the transferee.
3) That the transfer should be void if the transferor should survive the transferee
If it is donation inter vivos, upon acceptance the property, it becomes now
SINCE THE DEEDS PARTAKE OF THE NATURE OF TESTAMENTARY PROVISIONS,
owned by the donee. Thus, if the donee dies, it shall form part of the estate
THEY MUST BE EXECUTED IN ACCORDANCE WITH THE REQUISITES ON
of the donee and thus inherited by his heirs. If it is stated that if the donee
SOLMENITIES OF WILLS AND TESTAMENTS UNDER ARTS. 805 AND 806. The deeds
dies ahead of the testator the property shall revert to the donor, that is
in question although acknowledged before a notary public of the donor and the
mortis cause. Because in succession, the heirs should survive the decedent.
donee, the documents were not executed in the manner provided for under the above-
You cannot inherit from your parents if you die first. That is actually also the
quoted provisions of law. Thus the deeds of donations are null and void.
essence of succession — that the heir should survive the decedent.

DEED OF DONATION IS ACTUALLY A DONATION MORTIS CAUSA.

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CUEVAS VS. CUEVAS
GR L-8327, December 14, 1955
FACTS: The document here was denominated Deed of Donation in tagalog.
“Dapat malaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, ang lupa na
ipinagkaloob ko sa kanya ay ako pa rin ang namomosecion, makapagtrabaho,
makikinabang at ang iba pang karapatan sa pagmamay-ari ay sa akin pa rin
hanggang hindi ako binabawian ng buhay ng Maykapal at ito naman ay sa akin pa
rin hanggang hindi ako binabawian ng buhay Maykapal at ito naman ay hindi ko nga
iya-alis pagkat kung ako ay mamatay na ay inilalaan ko sa kanya.”
ISSUE: Is this donation inter vivos or donation mortis causa?
RULING:
IT IS DONATION INTER VIVOS. The decisive proof that the present donation is
operative inter vivos lies in the final phrase to the effect that the donor will not dipose
or take away (“hindi ko nga iya-alis” in the original) the land “because I am reserving it
to him upon my death.” By these words, the donor expressly renounced the right to
freely dispose of the property in favor of another (a right essential to full ownership)
and manifested the irrevocability of the conveyance of the naked title to the proeprty
in favor of the donee. Such irrevocability is characteristic of a donation inter vivos
because it is incompatible with the idea of disposition post mortem.
The donation mentioned “samantalang ako ay nabubuhay ang lupa na ipinagkaloob
ko sa kanya ay ako pa rin ang namomosecion, makapagtrabaho, makikinabang at ang
iba pang karapatan sa pagmamay-ari ay sa akin pa rin.”
It was contended that the donee actually retained the ownership over the land: right to
possess, right to cultivate the land, the right to benefit from the land and other rights of
ownership.
The testator only retained the beneficial use of the land, but the naked title, she
already gave to the donee. It would be different if she retained the naked title and
gave away the beneficial use. It would be still be donation mortis cause. But here she
only retained the beneficial ownership.
As to the phrase “ang iba pang karapatan sa pagmamay-ari ay sa akin pa rin.”
The words, rights and attributes of ownership should be construed ejusdem generis
(in the same sense as they are understood) with the preceding rights of possession,
cultivation, and harvesting. It could not refer to ownership, it could only be on the
same level of possession, cultivation and harvesting. Had the donor meant to retain
full or absolute ownership, she did not need to specify possession, cultivation and
harvesting, since all these rights are embodied in a full or absolute ownership.
Therefore the transfer here was valid because it complied with the formalities of
donation.
VILLANUEVA VS. SPOUSES BRANOCO
GR 172804, January 24, 2011
FACTS: There is a Deed of Donation made by Alvegra Rodrigo which contained the
following provisions:
That as we live[d] together as husband and wife with Juan Arcillas, we begot
children, namely: LUCIO, VICENTA, SEGUNDINA, and ADELAIDA, all surnamed
ARCILLAS, and by reason of poverty which I suffered while our children were
still young; and because my husband Juan Arcillas aware as he was with our
destitution separated us [sic] and left for Cebu; and from then on never cared
what happened to his family; and because of that one EUFRACIA
RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient
as she was to all the works in our house, and because of the love and
affection which I feel [for] her, I have one parcel of land located at Sitio
Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name
of Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA
RODRIGUEZ, her heirs, successors, and assigns together with all the
improvements existing thereon, which parcel of land is more or less
described and bounded as follows:
1. Bounded North by Amambajag River; East, Benito Picao; South, Teofilo
Uyvico; and West, by Public land; 2. It has an area of 3,492 square meters
more or less; 3. It is planted to coconuts now bearing fruits; 4. Having an
assessed value of P240.00; 5. It is now in the possession of EUFRACIA
RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed
of Donation or that ownership be vested on her upon my demise.
That I FURTHER DECLARE, and I reiterate that the land above described,
I already devise in favor of EUFRACIA RODRIGUEZ since May 21, 1962, her
First Exam
heirs, assigns, and that if the herein Donee predeceases me, the same land
will not be reverted to the Donor, but will be inherited by the heirs of
EUFRACIA RODRIGUEZ;
That I EUFRACIA RODRIGUEZ, hereby accept the land above described
from Inay Alvegia Rodrigo and I am much grateful to her and praying further
for a longer life; however, I will give one half (1/2) of the produce of the land
to Apoy Alve during her lifetime
After the execution of the deed of donation, Alvegra Rodrigo sold the land to Vere and
then Branoco. Villanueva here filed a case to recover the parcel of land.
ISSUE: Is the Deed of Donation Valid? Donation intervivos or mortis causa?
RULING:
Even if it is in the form of a will, and assuming that it is a will or donation mortis
causa, the buyer would still have a better right because it tantamount to a revocation
of the donation mortis causa in favor to Rodriguez. The sale by the testator of the
property to another person during the testator’s lifetime has the effect of revoking
the will.
6 DISTINGUISHING CHARACTERISTICS OF A DONATION MORTIS CAUSA:
1) it conveys no title or ownership to the transferee before the death of the
transferror or what amounts to the same thing that the transferror shall retain
the ownership and control over the property while alive
2) That before the death, the transfer shall be revocable by the transferror at will,
ad nutum. But revocability may be provided for indirectly by means of a reserved
power in the donor to dispose of the properties conveyed; and
3) That the transfer should be void if the transferor should survive the transferee
In addition to the 3 distinguish characteristics, another 3 were added:
4) The specification in a deed of the causes whereby the act be revoked by the
donor indicates that the donation is inter vivos, rather than a disposition mortis
causa
If there is no cause, and the donor can just revoke the donation, it is mortis
causa because it is real deed of donation. The law specifies the grounds for
revocation or donor has to specify it in the deed. If the deed mentions the
causes for revocation, then it is an indication that it is inter vivos.
5) That the designation of the donation as mortis causa, or a provision in the deed
to the effect that the donation is to take effect at the death of the donor are not
controlling criteria; such statements are to be construed together with the rest
of the instrument, in order to give effect to the real intent of the transferor; and
Just because it states that it is effective upon the testator’s death it does not
mean that it is mortis causa. You have to take into account the other provisions
of the document.
6) That in case of doubt, the conveyance should be deemed donation inter vivos
rather than mortis causa, in order to avoid uncertainty as to the ownership of the
property subject of the deed.
In case of doubt, it will be inter vivos. This is to avoid uncertainty in the
ownerhsip of the property — as such will be present in a deed of donation
mortis causa. The latter being able to be revoked at the will of the testator.
IT IS DONATION INTER VIVOS.
1. It was stipulated that in the event that the donee predeceases the donor, the
proeprty will not be reverted to the donor but is to be inherited by the heirs of
Rodriguez.
2. The transer of title was perfected when Rodrigo learned about the disposition in
favor of Eufrocia. In fact, in the deed of donation, the acceptance part shows that
the donee will still give the 1/2 of the produce to the donor. She still gives the
beneficial ownership to the donor. But the naked title shall be passed on to the
donee. What Rodrigo reserved to herself was only the beneficial title of the
property as evident from the donee’s undertaking to give 1/2 of the produce of
the land to Apoy Alve during her lifetime.
3. So the phrase here in the Deed of Donation that said “the Deed of Donation or
that ownership be vested on her upon my demise” refers only to the beneficial
ownership because the naked title was given by the donor to the donee during
her lifetime. The beneficial ownership upon the testator’s death, shall be vested
upon the donee.
4. That it is inter vivos was underscored by the promise by the donee to give the
donor 1/2 of the produce during her lifetime. If the donor really reserved
ownership over the land, there was no need for the donor to mention that she will
give the proceeds of the land to the donor because as owner of the land, she
need not mention the same.
5. The existence of consideration other than the donors death, such as the donors
love and affection to the donee and the services the latter rendered, while also
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true of devises, nevertheless corroborates the express irrevocability of inter vivos
transfers
While in the other case we discussed that mere consideration of love and
affection does not necessarily make the transfer inter vivos because love and
affection can also underlie a transfer mortis causa. But in this case, the SC said
that it corroborates the fact that it was really a donation inter vivos.
How about the fact that after the donation, the donor sold the property? SC said, Nor
can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to Vere
as proof of her retention of ownership. If such were the barometer in interpreting
deeds of donation, not only will great legal uncertainty be visited on gratuitous
dispositions, this will give license to rogue property owners to set at naught
perfected transfers of titles, which, while founded on liberality, is a valid mode of
passing ownership. The interest of settled property dispositions counsels against
licensing such practice.
The act of selling the property to another added to the uncertainty of the ownership
over the property. Thus, in case of doubt, it will be resolved in favor of it being a
donation inter vivos.
Note: Take note that the SC examined the deed as a whole — provisions one by one
and relating one to another. Even if it was stated that the transfer will take effect
upon the death, it was also stated that upon the death of the donee, the property will
not revert back to the donor but is to be inherited by the donee’s heirs.
Property was already in the possession of the donee as early as 1962. It is very clear
that what the donee reserved for herself in this document is only the beneficial
ownership. That the right of beneficial ownership is that which will be vested upon
the donor’s death.
Again, if ownership is transferred to the donee during the lifetime of the donor
whether its full ownership or naked title, it is already a donation inter vivos. but if the
donor reserves full ownership or even naked ownership, it is still donation mortis
causa or succession.
JUTIC VS. CA
August 27, 1987
FACTS: Vicente Sullan and the other respondents filed a complaint with the then
Court of First Instance at Tagum, Davao del Norte against the petitioners for partition
and accounting of the properties of Arsenio Seville, alleging they are heirs of the
decedent.
Arsenio owned several properties in Davao. He executed an affidavit in favor of
Melquiades which reads:
xxx
That I am a widower as indicated above and that I have no one to inherit all
my properties except my brother Melquiades Seville who appears to be the
only and rightful person upon whom I have the most sympathy since I have
no wife and children;
That it is my desire that in case I will die I will assign all my rights, interest,
share and participation over the above- mentioned property and that he shall
succeed to me in case of my death, however, as long as I am alive I will be
the one to possess, enjoy and benefit from the produce of my said land and
that whatever benefits it will give me in the future I shall be the one to enjoy
it;
xxx
Arsenio mortgaged the properties to PNB in consideration for a loan done with the
knowledge of Melquiades.
ISSUE: Whether or not there was a valid donation from Arsenio Seville to Melquiades
Seville.
RULING: THE AFFIDAVIT IS NEITHER A DONATION INTER VIVOS/MORTIS CAUSA. IT
MERELY DECLARED AN INTENTION AND A DESIRE TO DONATE. A discussion of the
different kinds of donations and the requisites for their effectivity is irrelevant in the
case at bar. There clearly was no intention to transfer ownership from Arsenio Seville
to Melquiades Seville at the time of the instrument's execution. It was a mere
intention or a desire on the part of Arsenio Seville that in the event of his death at
some future time, his properties should go to Melquiades Seville.
Recap: Again, when we say inter vivos this is governed by the law on donations
because the tranfer happens during the lifetime of the donor. Therefore, for an
effective transfer, the document has to satisfy the formalities of donation.
If it is mortis causa, whether it is succession or donation mortis causa, that is
actually succession proper. Here, the transfer is effective upon the death of the
transferor. Being that, it is governed by the laws on succession and by the formalities
of wills. To be valid, the document has to comply with the formalities of wills.
Remember the 6 distinguishing characteristics of donations mortis causa.
(Villanueva vs. Spouses Branoco)
TITLE IV. — SUCCESSION
Chapter 1
GENERAL PROVISIONS
Now we go to the definition of Succession.
Art. 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another
or others either by his will or by operation of law.
Take note that as defined, SUCCESSION is the mode or the manner, by which the
property, rights and obligations are acquired.
Compare it with Art. 712.
Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession,
and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.
There are two modes of acquiring property:
(1) original mode -
(2) derivative mode -
Succession is a derivative mode because there is a prior owner who is the decedent
and upon his death, his properties, rights and obligations are transmitted to the heirs.
Aside from succession, we have donation, tradition as a consequence of certain
contracts. This is a derivative mode of acquisition.
CORONEL VS. CA
GR 103577, October 7, 1996
FACTS: Romulo Coronel et al executed a document entitled Receipt of Down Payment
in favor of Ramona Alcaraz which provides:
RECEIPT OF DOWN PAYMENT
P1,240,000 - total amount
P 50,000 - down payment
P1,190,000 - balance
Received from Ramona Alcaraz xxx the sum of Fifty Thousand Pesos
purchase price of our inherited house and lot, x x x in the total amount of
P1,240,000.
We bind ourselves to effect the transfer in our names from our deceased
father, constancio Coronel, the transfer certificate of title immediately upon
receipt of the down payment above-stated.
On our presentation of the TCT already in our name, We will immediately
execute the deed of absolute sale of said property and Ramona Alcaraz shlal
immediately pay the balance of the P1,190,000.
Conditions of the sale are thus: (1) that Ramona will make a downpayment; (2) The
Coronels will cause a transfer in their names of the title of the property registered (3)
Upon the transfer in their names of the subject property, the Coronels will execute the
deed of absolute sale in favor of Ramona and the latter will pay the balance of the full
price.
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However, after downpayment was received and the transfer of the TCT, the Coronels
sold the property to Catalina Mabanag for P1,580,000 after the latter paid P300,000
downpayment. Coronels thus rescinded the contract with Ramona by depositing the
downpayment paid by Concepcion in thebank in trust for Ramona Alcaraz.
Ramona filed a Complaint for Specific Performance against the Coronels.
Coronels argue that there could have been no perfected contract of sale on January
19, 1985 because they were then not yet the absolute owners of the inherited
property. Moreover, that succession may not be declared unless the creditors have
been paid.
ISSUE: What is the real nature of the contracts?
RULING:
THE PARTIES DID NOT MERELY ENTER INTO A CONTRACT TO SELL WHERE UPON THE
SATISFACTION OF THE SUSPENSIVE CONDITION, THE SELLERS WOULD SELL THE PROPERTY TO
THE BUYER. THE CORONELS HAD ALREADY AGREED TO SELL THE HOUSE AND LOT THEY
INHERITED FROM THEIR FATHER. It just so happened that the TCT was still in the name of their
father. It was more expedient to first effect the change in the certificate of title so as to bear their
names. That is why they undertook to cause the issuance of a new TCT in their names of the down
payment in the amount of P50,000. As soon as the new TCT is issued in their names, Coronels were
committed to immediately execute the deed absolute of sale. Only then will the obligation of
Ramona arises — to pay the remainder of the purchase price. THE RECEIPT OF DOWN PAYMENT
WAS A CONDITIONAL CONTRACT OF SALE, CONSUMMATION OF WHICH IS SUBJECT ONLY TO THE
SUCCESSFUL TRANSFER OF THE TCT TO THE NAME’S OF THE CORONELS.
THERE IS A PERFECTED CONTRACT. Aside from the suspensive condition being
satisfied:
1. Art. 774 of the CC, provides that the succession is is a mode of acquisition by
virtue of which, the P, R and O 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.
2. Being the compulsory heirs of the decedent Constancio, who are called to
succession by operation of law, they stepped into the shoes of their father
insofar as the subject property is concerned when the latter drew his last breath.
Any rights or obligations with respect to the subject property became binding
and enforceable upon them. It is expressly provided that rights to succession are
transmitted from the moment of death of the decedent. (Art. 777)
THE ARGUMENT THAT SUCCESSION MAY NOT BE DECLARED UNTIL THE CREDITORS
ARE PAID IS RENDERED MOOT BY THE FACT THAT THEY WERE ABLE TO TRANSFER
THE TCT TO THEIR NAMES.
THE CORONELS ARE ESTOPPED FROM DENYING THEIR CAPACITY TO ENTER INTO
AN AGREEMENT. They cannot be allowed to take a posture contrary to that which
they took when they entered into the agreement with Ramona. Art. 1431 provides:
through estoppel an admission or representation is rendered conclusive upon the
person making it, and cannot be denied or disproved as against the person relying
thereon. Thus, since the Coronels represented themselves as true owners of the
subject property at the time of sale, they cannot claim now that they are not the
absolute owners at that time.
Even if the transfer of the TCT was not made under their names, would successsion
still be declared? Yes, because it is effective upon the death of the deceased. The
settlement of the creditors does not determine whether there is transfer of
ownership. There is transfer from the moment of death although it might not matter
whether the heirs receive something. For all we know, the obligations may exceed the
assets. So the heirs are only entitled to receive the net or the excess of the assets
over and above the obligations.
BALUS VS. BALUS
GR 168970, January 15, 2010
The rights to a person's succession are transmitted from the moment of his death.
The inheritance of a person consists of the property and transmissible rights and
obligations existing at the time of his death, as well as those which have accrued
thereto since the opening of the succession. In the present case, since Rufo lost
ownership of the subject property during his lifetime, it only follows that at the time
of his death, the disputed parcel of land no longer formed part of his estate to which
his heirs may lay claim. Stated differently, petitioner and respondents never
inherited the subject lot from their father.
First Exam
Art. 775. In this Title, “decedent” is the general term applied to the
person whose property is transmitted through succession, whether or
not he left a will. If he left a will, he is also called the testator.
Art. 775 gives us the definition of a “decedent.” This is the general term. Whether or
not it is testate or intestate succession, the person who died can be called the
decedent.
To be more specific, if there is a will, that person is called “testator.”
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
Art. 776 defines “inheritance.” It means all the P, R, and O which are not extinguished
by his death.
Are we saying that there are P, R and O that are extinguished by death? There are.
Take note of the definition: when we say inheritance, it refers to the P, R, and O which
are transmitted.
As distinguished from succession (Art. 774), which is the mode of acquisition. That is
the mode by which the inheritance is transmitted to the heirs.
SUBJECTS OF SUCCESSION — are the transmissible properties, rights
and obligations
1. PROPERTY
Different kinds of property:
Real or immovable — those which cannot be moved or attached to the soil
Movable or personal — those which can be transferred from one place to
another
Intangible or incorporeal — those which exist in legal contemplation but do
not have physical existence; although can be represented or evidenced by a
document (copyright, franchise, good will, shares of stock) Although one
cannot see them, they have legal consequences. (this kind is also a
movable)
These properties are covered by the law on succession. Thus they are also
transmissible by succession.
We only have to remember that for a property to be transmitted or to be the
proper subject of succession:
(1) it must be licit,
(2) must not be outside the commerce of man,
(3) must not be res nullus (owned by no one),
(4) must not be res communes (owned by the public),
(5) must not be prohibited by law,
Is employment considered as a property right which can be transmitted by
succession? Although it can be considered as a property right, it is extinguished
by death. It cannot be passed on to the children. If you are a manager of a
corporation, you are there because of your personal qualifications. One cannot
expect that your qualifications are shared by his children; and therefore when
you die they’re not entitled to succeed to your employment.
Is the human body capable of being appropriated?
GENERAL RULE, the human body or any organ of the human body are not
capable of appropriation. It is not within the commerce of man. So one cannot
bequeath one’s heart to one’s girlfriend for preservation as a reminder of your
eternal love.
EXCEPTION: ORGAN DONATION ACT OF 1991 or RA 7170
As of now one can donate his kidney, liver, etc. Under the said act, there
are two modes: (1) by donation; (2) by will. We will only discuss by will or
legacy. When we say legacy, it is a gift of personal property by will.
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How can you give by will? RA 7170 provides:
Sec. 3. Person Who May Execute A Legacy. – Any individual, at least
eighteen (18) years of age and of sound mind, may give by way of legacy,
to take effect after his death, all or part of his body for any purpose
specified in Section 6 hereof.
Sec. 6. Persons Who May Become Legatees or Donees. – The following
persons may become legatees or donees of human bodies or parts
thereof for any of the purposes stated hereunder:
(a) Any hospital, physician or surgeon - For medical or dental
education, research, advancement of medical or dental science,
therapy or transplantation;
(b) Any accredited medical or dental school, college or university —
For education, research advancement of medical or dental science,
or therapy;
(c) Any organ bank storage facility — For medical or dental education,
research, therapy or transplantation; and
(d) Any specified individual — For therapy or transplantation needed
by him
While a probate proceeding is required for all wills, with respect to RA 7170, it is
not required that the will has to be probated before the legacy can be given
effect. By the very nature of the necessity of the recipient, one cannot wait for
the probate.
What if it is later on probated and it is found that the will is defective? Under RA
7170, even if the will is found to be defective, as long as it was executed in good
faith, then the disposition is valid and effective.
With respect to properties, just remember the general rule is that the property
must be owned by the decedent. One cannot give property which one does not
own. There is an exception when we go to legatees and devises.
2. RIGHTS
What rights can be transmitted by succession?
GR: Patrimonial rights are transmissible by succession.
When you say patrimonial rights, these are rights which relate to
properties.
Purely personal rights are not subject to succession.
They are extinguished from the moment of death
What are patrimonial rights?
a) Contractual rights
‣ contract of lease — the lessor has the right to collect the rentals from
the lessee; the lessee is entitled to remain in the property in peaceful
possession of the leased premises, as long as he pays the rent. The
rights arising from this contract of lease are patrimonial which are
generally transmissible to the heirs by succession.
b) Right to insurance
GREAT PACIFIC LIFE ASSURANCE CORP. VS. CA
GR 113899, October 13, 1999
FACTS: As a housing debtor of DBP, Dr. Leuterio applied for membership in the
group life insurance plan. He was given an insurance coverage to the extent of
his DBP mortgage indebtedness valued P86,200. Dr. Leuterio died due to
massive cerebal hemorrhage. DBP submitted a death claim to Grepalife which
was denied.
The widow of Dr. Leuterio, Merdarda Leuterio, filed a complaint against Grepalife
for Specific Performance with Damages.
Grepalife alleges that the complaint was instituted by the widow of Dr. Leuterio,
not the real party in interest, thus the RTC did not acquire jurisdiction over the
case.
ISSUE: Can the widow of Dr. Leuterio file a suit against Grepalife?
RULING:
We must consider the insurable interest in mortgaged properties and parties to
this type of contract. The rationale of a group insurance policy of mortgagors,
otherwise known as the mortgage redemption insurance, is a device for the
protection of both the mortgagee and the mortgagor. On the part of the
mortgagee, it has to enter into such form of contract so that in the event of the
unexpected demise of the mortgagor during the subsistence of the mortgage
contract, the proceeds from such insurance will be applied to the payment of the
mortgage debt, thereby relieving the heirs of the mortgagor from paying the
obligation. In a similar vein, ample protection is given to the mortgagor under
such a concept so that in the event of death; the mortgage obligation will be
extinguished by the application of the insurance proceeds to the mortgage
indebtedness. Consequently, where the mortgagor pays the insurance premium
under the group insurance policy, making the loss payable to the mortgagee, the
insurance is on the mortgagor’s interest, and the mortgagor continues to be a
party to the contract. In this type of policy insurance, the mortgagee is simply
an appointee of the insurance fund, such loss-payable clause does not make the
mortgagee a party to the contract.
DR. LEUTERIO/INSURED DID NOT CEDE TO THE MORTGAGEE ALL HIS RIGHTS
OR INTERESTS IN THE INSURANCE THUS MORTGAGOR MAY SUE IN HIS OWN
NAME ESPECIALLY WHERE THE MORTGAGEE’S INTEREST IS LESS THAN THE
FULL AMOUNT RECOVERABLE. The policy stated that: in the event of the
debtors death before his indebtedness with DBP shall have been fully paid, an
amount to pay the outstanding indebtedness shall first be paid to the creditor
and the balance of sum asserted, if there is any, shall then be paid to the
beneficiary/ies designated by the debtor. When DBP submitted the insurance
claim against Grepalife, the latter denied payment. DBP thereafter collected the
debt from the mortgagor and foreclosed the residential lot of Mrs. Leuterio.
In Gonzales La O vs. Yek Tong Lin Fire & Marine Ins. Co, the Court held:
Insured, being the person with whom the contract was made, is primarily the
proper person to bring suit thereon. * * * Subject to some exceptions, insured
may thus sue, although the policy is taken wholly or in part for the benefit of
another person named or unnamed, and although it is expressly made payable
to another as his interest may appear or otherwise. * * * Although a policy
issued to a mortgagor is taken out for the benefit of the mortgagee and is made
payable to him, yet the mortgagor may sue thereon in his own name, especially
where the mortgagees interest is less than the full amount recoverable under
the policy.”
It also ruled that “insured may be regarded as the real party in interest
although he has assigned the policy for the purpose of collection, or has
assigned as collateral security any judgement he may obtain.
THE WIDOW OF DR. LEUTERIO MAY FILE THE SUIT AGAINST THE INSURER,
GREPALIFE. A policy of insurance upon life or health may pass by transfer, will
or succession to any person, whether he has an insurable interest or not, and
such person may recover whatever the insured might have recovered.
Is it necessary that the person who brings the action has insurable interest?
No.
What is an insurable interest? A wife has insurable interest over the life of the
husbnad because there is a relation. One is said to have insurable interst when
the loss of the life of the husband or someone is prejudicial to that person. That
is a requirement in insurance, that one is supposed to have insurable interest to
file a claim against the insurer.
What is the requirement or condition for there to be transfer by succession?
Insurable interest in succession is not material.
Remember that the policy of insurance is tranmissible by will or succession. It is
not required that the heirs have insurable interest. As long as the insured
himself, from whom they succeeded, he is entitled to receive. So if he cannot
receive then, his heirs may recover whatever the insured might have recovered.
c) Action for Forcible Entry or Unlawful Detainer
If the plaintiff dies before filing a case or if he dies during the pendency of the
case, his right to institute the case is transmitted to his heirs.
d) Action Against or by the Heirs to Compel the Execution of a Public Document
Art. 1357 of the Civil Code. If the law requires a document or other special form,
as in the acts and contracts enumerated in the following article, the contracting
parties may compel each other to observe that form, once the contract has been
perfected. This right may be exercised simultaneously with the action upon the
contract.
If there is a contract which is valid and enforceable, even if it is oral, but for
the sake of convenience, a public document is required — the parties may
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compel the other to execute the necessary public document simultaneous
with an action. For example: partition (division, segregation of property
among those who are entitled.)
Under the law on partition, we don’t need a written document for the
partition to be valid and enforceable. Partition is not a conveyance. It is
succession which transfers ownership of the land.
So even if there is no written agreement, and heirs already possess certain
portions of the property, there is partition although not in writing. But that
kind of partition cannot be registered in the Registry of Deeds. There has to
be a public document for the partition to be valid and to be able to register
it before the Registry of Deeds.
For instance, when a person dies and is survivied by his heirs, the latter can
compel the opposite party to execute a public document and in case of
refusal, bring an action in court to compel. So the deceased’s rights here is
transferrable by succession.
e) An Action to Recover Possession (publiciana/ reivindicatoria)
This is different from forcible entry and unlawful detainer. Both have their
respective requisites the prescriptive periods are 1 year (from demand or
discovery.) If the 1 year has passed, one may still file an ordinary action for
possession.
The same thing, when the owner of the property dies, his rights are
transmitted to his heirs. Even if the case is pending, there will just be a
substitution of parties — the rights of the deceased again is transmitted to
his heirs.
f) Right to Recover Civil Liability Arising from Crime
A victim is entitled to recover criminal as well as civil liability. When a
plaintiff/ private complainant dies, his heirs may still recover.
g) Right to Recover from Torts / Neligence
If the aggrieved party dies, his right to institute an action to recover passes
to his heirs
GR : RIGHTS WHICH RELATE TO PROPERTIES, OR WHAT WE CALL PATRIMONIAL
RIGHTS ARE TRANSMISSIBLE TO THE HEIRS.
E : WHEN PARTRIMONIAL RIGHTS ARE NOT TRANSMISSIBLE TO THE HEIRS
THROUGH SUCCESSION
(1) If it is provided in the contract that the rights are not transmissible;
- like in a contract of lease; if the lessor or lessee dies, the lease will still
continue until the contract expires
- but it can actually be stipulated in the contract that “upon the death of
the lessor or the lessee, the lease contract is extinguished.”
INNOCENCIO VS. HOSPICIO DE SAN JOSE
GR 201787, Sept 25, 1013
Facts: What is involved here is a contract of lease. The lessee died. It was
contended by the lessor that the heirs of the lessee cannot stay in the
property because the lease contract was already extinguished. The rights
to the contract are not transmitted to the heirs.
According to the lessor, Sec. 6 of their contract provides: This contract is
non-transferrable. Unless prior consent of the lessor is obtained in writing.
Issue: Is the right of the lessee transferred to his heirs upon the lessee’s
death?
Ruling:
A LEASE CONTRACT IS NOT ESSENTIALLY PERSONAL IN CHARACTER.
Thus, the rights and obligations therein are transmissible to the heirs. The
general rule, therefore, is that heirs are bound by contracts entered into by
their predecessors-in-interest except when the rights and obligations
arising therefrom are not transmissible by (1) their nature, (2) stipulation
or (3) provision of law. In the subject Contract of Lease, not only were there
no stipulations prohibiting any transmission of rights, but its very terms
and conditions explicitly provided for the transmission of the rights of the
lessor and of the lessee to their respective heirs and successors. The
First Exam
contract is the law between the parties. The death of a party does not
excuse nonperformance of a contract, which involves a property right, and
the rights and obligations thereunder pass to the successors or
representatives of the deceased. Similarly, nonperformance is not excused
by the death of the party when the other party has a property interest in the
subject matter of the contract.
How about Section 6 of their contract? The general rule is transferrability of
rights and obligations. Therefore, Section 6 should be construed to refer
only to transfers inter vivos and not transmissions mortis causa. What
Section 6 seeks to avoid is for the lessee to substitute a third party in place
of the lessee without the lessor’s consent.
(2) Contract of Usufruct
- under Art. 603 of the NCC,
- general rule: the death of the usufructuary extinguishes the usufruct
- E to the E: although the parties may stipulate otherwise
(3) Agency
- We can say that agency consists of patrimonial rights in the sense that
one deals with property rights
- However, Art. 1919 of the NCC, upon the death of either the principal or
agent extinguishes the agency
- So if an agent is authorized to collect rent from a principal’s tenants,
and thus executes a SPA, then the principal dies, the SPA has no more
effect.
- The agent can no longer get rent from the tenants upon the principal’s
death. The lessee must refuse to pay the agent of the dead principal
because he no longer has the authority. The authority now belongs to
the heirs and not the agent. Moreover, payment to the wrong party is not
valid payment.
- E to the E: Agency is not extinguished by death when the agency is
coupled with an interest. (In the interest of the agent)
- Example: A got a P1M loan from P. A is the debtor and P is the creditor.
As a collaterial for the loan, P required A to mortgage the latter’s land. A
is now the debtor-mortgagor and P is the creditor-mortgagee. Upon
default of the debtor-mortgagor, the mortgagee can foreclose on the
mortgage the proceeds of which will be used to pay the loan. We already
know that there are 2 kinds of foreclosures: judicial and extra judicial.
Judicial entails filing before court. Extra judicial is done out of court and
is executed by the sheriff. In an extra judicial foreclosure, there is
usually a SPA in the contract which is executed by the debtor-mortgagor
in favor of the creditor-mortgagee, authorizing him to extrajudicially
foreclose the property upon default. That is an agency. What if the
debtor-mortgagor dies? Is the authority of the creditor-mortgagee now
revoked? This is an example of an agency coupled with an interest. It is
not extinguished by the death of either the agent or the principal. The
principal can still extrajudicially foreclose the mortgage even if the
debtor-mortgagor already died.
(4) Tenancy under RA 3844.
- in practice, it is a very common issue
- in lease hold tenancy contract, the tenant involved gives a portion of the
harvest to the land owner; usually happens by mere asking by the
prospective tenant if he can till the land
- Thereafter, under RA 3844, the tenant has security of tenure thus he
cannot be ejected except for reasons stated in the law
- Upon the tenant’s death, is the tenancy extinguished? Qualified. Under
the RA 3844, if the tenant has no heirs, there is no transmission of
rights. If the tenant has heirs, only one of them can be the successor. It
is the landowner who will choose which one of the heirs will succeed to
the right to be a tenant on his land.
(5) The right to become a partner in a partnership
- Art. 1830
- One of the grounds for the dissolution of a partnership is the death of a
partner. Why? Because partnership is based on trust and confidence.
There is a fiduciary relationship between and among the partners. An
heir cannot inherit the trust and confidence reposed by the other
partners upon the deceased partner.
(6) Right to Annuity
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- Art. 2027. No annuity shall be claimed without first proving the
existence of the person upon whose life the annuity is constituted.
- Annuity is also based on the life of the person. For now a person may
pay premiums then when that person reaches a certain age (i.e. 60) he
or she will start receiving the pension.
- If you die, the heirs cannot claim that the pension should be continued
because if it is based on annuity, the receipt of pension is based on a
person having survived or reach a certain age
(7) Right to Revoke Donation by Reason of Ingratitude
- this can only be exercised by the donor; when he dies, his heirs can no
longer revoke on his behalf
(8) Commodatum
- Art. 1939 of the NCC
- A commodatum is a contract wherein one lends something then the
borrower has the obligation to return
- The death of the bailor will extinguish the contract of the commodatum
because it is personal in character
(9) Gratuitous deposit
- Art. 1995 of the NCC
- Upon the death of either depositor or the depositary, the contract of
gratuitous deposit is extinguished
GR: PURELY PERSONAL RIGHTS ARE NOT TRANSMISSIBLE BY SUCCESSION.
a) Parental Authority
- when parents die, their authority over their children, do not transfer
to another person
- However under the NCC upon the death of either parent, or both
parents, there is a provision which provides for substitute parental
authority (but that is by law and not succession)
b) Marital Rights relating to persons or property
- if your spouse dies, his rights cannot be transmitted by will transmit
to his brother
c) An action for legal separation right to institute such belongs to the
aggrieved spouse — this is extinguished upon death because the marital
bond is also extinguished upon death
d) Right to receive support — when the person entitled to support dies, his
heirs cannot invoke the right to continue receiving that support by
succession
e) Right to vote
f) Guardianship
3. OBLIGATIONS
Not only properties and rights can be transferred but also the debts and obligations
of the decedent. Just remember that when it comes to obligations, there is a
limitation on the extent of the transmission -- if is only up to the value of the
inheritance.
If the estate is P10M and the debts are P15M, the heirs can only be compelled to pay
P10M. They cannot be made personally liable for the remaining P5M.
GR: OBLIGATIONS ARE TRANSMISSIBLE.
LIU VS. LOY
GR 145982, September 13, 2004
FACTS: This is about a sale of a property owned by Teodoro Vao.
The Loys insist that the transaction between Teodoro Vao and Benito Liu (the
predecessor-in-interest of Frank Liu) is a contract to sell. In contrast, the
transactions between Teodoro Vao and Alfredo Loy, Jr. and Teresita A. Loy were
contracts of sale. According to the Loys, the contract to sell did not transfer
ownership of Lot Nos. 5 and 6 to Benito Liu or Frank Liu because it was only a
promise to sell subject to the full payment of the consideration. On the other hand,
the contracts of sale in favor of the Loys transferred ownership, as the conveyances
were absolute.
ISSUE: Which sale is valid?
RULING: A PRIOR CONTRACT TO SELL MADE BY THE DECEDENT DURING HIS
LIFETIME PREVAILS OVER A SUBSEQUENT CONTRACT OF SALE MADE BY THE
ADMINISTRATOR WITHOUT PROBATE COURT APPROVAL. It is immaterial if the prior
contract is a mere contract to sell and does not immediately convey ownership.
Frank Lius contract to sell became valid and effective upon its execution and bound
the estate to convey the property upon full payment of the consideration.
What kind of contract was entered into by administrator of the estate?
Is there a distinction between a contract of sale and a contract to sell?
Usually, which has more legal weight? Contract of Sale.
In a contract to sell, what happens if the buyer fully pays the purchase price and there
was prior delivery of the property, is there automatic transfer of ownership to the
buyer? How about if it is a contract of sale?
Which is superior: the contract to sell of Liu or the contract of sale? Contract to sell.
The contract to sell was executed and entered into by the decedent. While he was still
alive, he had the authority and right to dispose of the same. The administrator in this
case merely had an obligation to honor the contract to sell that was instituted
previously by the decedent.
The heirs stepped into the shoes of the decedent. During his lifetime, the decedent
bound himself to sell the property. To execute the necessary deed of sale upon the
payment of the full purchase price. So that obligation was inherited by his heirs. The
latter cannot escape the obligation by selling the same property to another person.
Even if the decedent himself, after he entered the contract to sell, he cannot validly
sell the property, he has to respect the contract to sell. Here, the contract to sell
should be prioritized over the contract of sale.
With respect to debts, is there transmission of debts to the heirs? There are several
kinds of obligations which are not just monetary. Like in this particular case of Liu, an
obligation in the contract to sell.
How about monetary debts? Are they transmitted to the heirs?
2 VIEWS:
(1) There is no transmission because even before the distribution of the
estate to the heirs, the all debts would have to be paid. If there is any
residue the same will be distributed to the heirs. The heirs do not pay the
debts but the estate which pays the debts
(2) The debts are transmitted because although the heirs only receive the
residual value of the estate after the payment so the debts. However, they
also shoulder the burden or the debts in the ultimate analysis because by
the payment of these debts, their share in the residue is diminished or
reduced. So they also bear the burden.
ALVAREZ VS. IAC
GR 68053, May 7, 1990
FACTS: The subject property in this case was owned by Aniceto Yanes. He died. He
was survived by his children. The respondents are his grandchildren. They allege that
Rufino (Aniceto’s son) and children had to settle elsewhere because of the outbreak
of WWII. After the liberation, when they went back to get their share of the sugar
produced therein, he was informed that Santiago, Fuentebella and Alvarez were in
possession.
Santiago sold it to Fuentebella. TCTs were issued in the latter’s name. The property
was later sold to Siason during the pendency of the case.
The Yaneses prayed for the cancellation of the TCTs issued to Siason for being null
and void. The lower court ruled that Alvarez are jointly and severally liable to pay
damages suffered by the Yaneses. The case against Siason was dismissed being a
buyer in good faith.
Alvarez contends that the liability arising from the sale of the property made to
Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after
his death.
ISSUE: Who is liable to pay for the damages arising from the case?
RULING:
GR is that a party’s contractual rights and obligations are transmissible to the
successors. This is because of the progressive “depersonalization” of partimonial
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rights and duties. From the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to patrimony with the persons
occupying only a representative position, barring those rare cases where the
obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of
CONDE VS. ABAYA
its performance by a specific person and by no other.
13 Phil. 240
ALVAREZ, BEING THE HEIRS OF ROSENDO ALVAREZ, CANNOT ESCAPE THE LEGAL RULING:
CONSEQUENCES OF THEIR FATHER’S TRANSACTION, WHICH GAVE RISE TO THE
PRESENT CLAIM FOR DAMAGES. That petitioners did not inherit the property
involved herein is of no moment because by legal fiction, the monetary equivalent
thereof devolved into the mass of their father's hereditary estate, and we have ruled JUNIO VS. COLLECTOR
that the hereditary assets are always liable in their totality for the payment of the 34 Phil. 240
debts of the estate. THE PETITIONERS ARE ONLY LIABLE ONLY TO THE EXTENT OF RULING:
THE VALUE OF THEIR INHERITANCE.

Note: The property was already sold during the lifetime of the Dr. Alvarez. So when he
died, the property was no longer part of his estate; and the judgement was rendered,
the heirs were not able to enjoy the property. ROBLES VS. BATACAN
154 SCRA 644
Why would they be liable to pay the value of the property? Because even if Dr.
Facts: Severino Geronimo worked for Petitioner Robles as a agricultural tenant for 20
Alvarez parted with the property during his lifetime. The proceeds from the sale
years. When he died, his two sons were ejected by Robles by an ejectment suit.
formed part of the estate of Dr. Alvarez. The heirs received the estate. Thus, they
should be liable to the pay the obligation.
Atanacio and Benedicto Geronimo claim that they are entitled to succeed their father
as Robles’ agricultural agricultural tenant in accordance with RA No. 119 and Section
What is the limitation? They will only be liable to the extent of the value of their
9 of RA 3844 – which provide that he could remain in Robles’ land under the same
inheritance.
terms and conditions of the original tenancy share arrangement entered into between
Severino and Robles. Moreover, his share should also be P100 more or less per
What is the PROGRESSIVE DEPERSONALIZATION OF PATRIMONIAL RIGHTS AND
harvest every 40 days during the time he continued discharging his father’s work as
DUTIES? The rights and obligations are not attached to the person. They are attached
his statutory successor.
to the patrimony of the person. The person only occupies a representative capacity.
For example, A owns a property, he is the representative insofar as that
Robles insists that Severino was never his agricultural tenant but a watcher in his
property is concerned. When he dies, it does not mean that his rights and
land. He did receive the sum of P100.00 every harvest but not as his share therein for
obligations which pertain to that property are extinguished. His rights are
that amount was given to him as a reward for his past services. The only work he did
transferred to whoever is entitled to receive that property by succession. It is
was watch over the petitioner"s land and make brooms out of the fallen coconut
not person to person but from patrimony to patrimony — that why there is no
leaves he would gather. He sold these brooms and kept the proceeds for himself
extinguishment of the rights and obligations even if the person dies because
without sharing them with the petitioner
he is just a representative.

Court of Agrarian Relations: Geronimo’s are agricultural tenants of Robles.

That is the present concept that we follow. There is transmission of rights and
obligations as a general rule.
So with respect to debts, although there are 2 views on the matter, the more
prevailing view is that the debts are transmitted. Considering that the estate is
reduced by the payment of the debts, the share of each heir are eventually reduced or
diminished as well. They actually beat the burden of the debts.
GENATO VS. BAYHON
GR 171035, August 24, 2009
CA: affirmed.
Issue: Are Private Respondents (Atanacio Geronimo and Benedicto Geronimo)
entitled to succeed Severino Geronimo (their father) as Robles’ agricultural tenant?
Ruling: affirmed. Findings are supported by the evidence of record and in accord with
the applicable law and doctrine.
TRIAL COURT CONCLUDED THAT SEVERINO WAS THE TENANT ON THE SUBJECT
PARCEL FOR QUITE A TIME AND WAS RECOGNIZED BY ROBLES AS SUCH. He
performed such tasks as supervising the harvest, cutting down bushes, clearing the
land, picking up the fallen nuts, paying the laborers from his 1/3 share.

RULING: In applying the principle of progressive depersonalization of patrimonial
rihgts and duties the Court said that the debt contracted by the deceased still
subsists against his estate.
GR : OBLIGATIONS ARE TRANSMISSIBLE
Exceptions:
1) If the obligations are expressly made intransmissible by stipulation
1) in a contract of lease, the rights and obligations of a lessee and the lessor
can be stipulated to the effect that they are not instransmissible
2) Purely personal obligations
1) parental authority, marital obligation, obligation to give support
3) Criminal Liability
1) distinguish from civil liabilities arising from crime — this can be
transmitted to the heirs
2) criminal liability which would consist of imprisonment or disqualification
or the like cannot be transmitted (he has to serve his time; this cannot be
passed on to his heirs)
MANUEL UY & SONS INC. VS. VALBUECO, INC.
GR 179594, September 11, 2013
THUS, AS THE SON OF SEVERINO GERONIMO, ATANACIO HAD THE RIGHT TO TAKE
OVER AS AGRICULTURAL TENANT IN ROBLES’ LAND IN ACCORDANCE WITH RA 1199
AND RA 3844. Obviously, Atanacio was the only heir interested in succeeding his
father as his brother, Benedicto, had not seen fit to claim his right and in fact
defaulted in resisting the petitioner’s claims in the ejectment suit. Significantly, when
in his prayer the petitioner asks for authority to appoint the said Benedicto to
succeed his father, it is presumably as his watcher only and not as agricultural
tenant. The petitioner’s consistent claim, it should be noted, is that Severino
Geronimo was not his tenant but only his watcher.
SAN AGUSTIN VS. CA
371 SCRA 348, December 4. 2001
In 1974, GSIS sold to Macaria Vda. de Caiquep a residential land with an area of 168
sqm located in Rosario, Pasig City. The TCT which was issued to Macaria had an
annotation at the back stating that:
she is not allowed to encumber the property in favor of any party within
5 years from the date final and absolute ownership thereof becomes
vested in the vendee, except in cases of hereditary succession or resale
in favor of the vendor.

RULING:

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Macaria sold the lot a day after the issuance of the TCT to Private Respondent
Menez, Jr. evidenced by a Deed of Absolute Sale. This was notarized but not
registered immediately upon its execution in 1974 in view of the 5-year prohibition to
sell during the period in 1979.
Menez’s house in Cainta, Rizal was ransacked by military men in 1979 for being
suspected as a subversive. Subsequently, he voluntarily surrendered, was arrested
and released and was in hiding until 1984. After having procured a certified copy of
the TCT, upon Menez’s discovery that the TCT was missing, he declared the property
for tax purposes and obtained a certification thereof from the Assessor’s Office. He
also sent notices to the registered owner at her address appearing in the title and in
the Deed of Sale. The search was futile.
Menez, Jr filed a petition with the RTC for the issuance of owner’s duplicate copy to
replace the old one. He presented the Deed of Absolute Sale. He was able to present
his evidence ex-parte and the court granted his petition.
Petitioner Jesus San Agustin (nephew of late Macaria – died in 1974) received a copy
of the decision. He claims that this was the first time he became aware of the case of
her aunt. He filed a Motion to Reopen Reconstitution Proceedings, claiming that he
was the present occupant of the property and the heir of Macaria.
RTC: denied Motion
CA: denied
Issues:
1. Is Petitioner San Agustin entitled to notice?
2. Is the sale between Menez and Macaria void under Art. 1409(7) for
being made within the 5-year prohibitory period under CA 141 or the
Public Land Act
Ruling: Appeal denied.
PETITIONER IS NOT ENTITLED TO NOTICE. Section 109 of PD 1529 or the Property
Registration Decree provides
Sec. 109. Notice and Replacement of lost duplicate certificate. In case
of loss or theft of an owners duplicate certificate of title, due notice
under oath shall be sent by the owner or by someone in his behalf to the
Register of Deeds of the province or city where the land lies as soon as
the loss or theft is discovered.  If a duplicate certificate is lost or
destroyed, or cannot be produced by a person applying for the entry of a
new certificate to him or for the registration of any instrument, a sworn
statement of the fact of such loss or destruction may be filed by the
registered owner or other person in interest and registered.
Upon the petition of the registered owner or other person in interest, the
court may, after notice and due hearing, direct the issuance of a new
duplicate certificate, which shall contain a memorandum of the fact
that it is issued in place of the lost duplicate certificate, but shall in all
respects be entitled to like faith and credit as the original duplicate, and
shall thereafter be regarded as such for all purposes of this decree.
Court has ruled in OCA vs. Matas that it is sufficient that the notice
under Section 109 is sent to the ROD and to those persons who are
known to have, or appear to have, an interest in the property as shown
in the Memorandum of encumbrances at the back of the original or
transfer certificate of title on file in the office of the Register of
Deeds.  From a legal standpoint, there are no other interested parties
who should be notified, except those abovementioned since they are the
only ones who may be deemed to have a claim to the property involved.
A person dealing with registered property is not charged with notice of
encumbrances not annotated on the back of the title. (Italics supplied.)
***In the case at bar, Petitioner San Agustin does not appear to have an interest in
the property based on the memorandum of encumbrances annotated at the back of
the title. His claim that he is an heir (nephew) of the original owner of the lot covered
by the disputed lot and the present occupant thereof is not annotated in the said
memorandum of encumbrances. Neither was his claim entered on the Certificate of
Titles in the name of their original/former owners on file with the Register of Deeds at
the time of the filing or pendency of LRC Case No. R-4659. Clearly, petitioner is not
entitled to notice. Moreover, there was compliance by Menez of the RTC’s order of the
publication of the petition in a newspaper of general circulation thus, this is sufficient
notoce of the petition to the public at large.
Menez’s reliance on Alabang Development Corp vs. Valenzuela which ruled that
courts must make sure that the actual owners and possessors of the land are duly
notified is misplaced because the cause of action in that case is based on RA 26 (An
Act Providing A Special Procedure for the Reconstitution of Torrens Certificate of
Title Lost or Destroyed – wherein reconstitution is validly made only in the case the
original copy of the Certificate of Title wit the RoD is lost or destroyed), while the
present case is based on Section 109 of PD 1529 which involves a replacement of
lost duplicate certificate.
THE PRESCRIPTION UNDER CA 141 ON SALE WITHIN THE 5-YEAR RESTRICTIVE
PERIOD REFERS TO HOMESTEAD LANDS ONLY AND THUS DOES NOT APPLY IN THIS
CASE.
1. Lot is not a homestead lot; as it is ownerd by GSIS under the TCT 10028
in its proprietary capacity
2. Since it was GSIS who imposed the 5-year restrictive condition, it is
GSIS and not San Agustin who had a cause of action against Menez.
Without an annulment of the contract filed by the GSIS, the contract of
sale remains binding upon the parties. The contract is protected by the
Constitution under Sec. 10, Art. III of the Bill of Rights which states that
No law impairing the obligation of contracts shall be passed.Much as
we would like to see a salutary policy triumph, that provision of the
Constitution duly calls for compliance.
3. Even if the transaction between the Menez and Macaria were wrongful,
still as between themselves, they were both in pari delicto, being
participes criminis as it were. Neither is entitled to complain against the
other. Having entered into the transaction with open eyes, and having
benefitted from it, said parties should be held in estoppel to assail and
annul their own deliberate acts.
RABADILLA VS. CA
June 29, 2000
Facts:
In the Codicil (it has 6 conditions which I didn’t include in this digest) appended to the
Last Will and Testament of testatrix Aleja Belleza, Dr. Rabadilla who is the
predecessor in interest of Petitioner Johnny Rabadilla was made a devisee of a parcel
of Lot 1392 of the Bacolod Cadastre (511,855 sqm.) The Codicil, was duly probated
and admitted before the CFI.
It provided that if Lot 1392 was encumbered, the buyer, lessee or mortgagee shall
have also the obligation to respect and delivery yearly 100 piculs of sugar to Maria
Marlina Coscolluela y Belleza on each month of December, 75 piculs of Export and 25
piculs of Domestic until Maria Marlina shall die. Otherwise, Maria Malina shall
immediately seize this lor from the heir and latter’s heirs and turn the same over to
Aleja’s near descendants. If the heirs and their heirs of Lot 1392 decide to sell, lease,
mortgage, they cannot negotiate with others than my near descendants and Aleja’s
sister.
Lot No. 1392 was transferred to Dr. Jorge Rabadilla and TCT was issued in his name.
He was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia
and Zenaida when Dr. Jorge died in 1983.
In 1989, Maria Marlena brought a complaint against the heirs of Dr. Jorge Rabadilla
to enforce the provisions of the Codicil. She claims that the heirs violated the
conditions of the Codicil in that:
1. Lot 1392 was mortgaged to PNB and Republic Planters Bank in
disregard of the testatrix’s specific instruction to sell, lease or mortgage
only to the near descendants and sister of the testratrix
2. Heirs did not delivery 100 piculs of sugar (75 export and 25 domestic
sugar) to Maria Marlena from 1985 to the filing of the complaint despite
repeated demands
3. The banks failed to comply with the 6th par of the Codicil which provided
that in case of the sale, lease or mortgage of the property, the buyer,
lessee or mortgagee shall likewise have the obligation to deliver 100
piculs of sugar per crop year to Maria Marlina.
She prays that the judgement be rendered ordering the heirs of Dr. Jorge Rabadilla to
return the lot to the surviving heirs of the late Aleja Belleza, the cancellation of the
TCT in the name of Jorge Rabadilla and the issuance of the new TCTs in the names of
the surviving heirs of the late Aleja Belleza.
Feb 1990, defendant heirs were declared in default but on March 28, 1990 the Order
of Default was lifted with respecvt to Johnny Rabadilla.
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The parties in the pre-trial admitted that Maria Marlina and Alan Azurin (who is the
son in law of Johnny Rabadilla and current lessee of the property and acting attorney
in fact of the heirs) arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to delivery 100 piculs of sugar.
1. That for crop year 1988-1989, the annuity will be delivered not later
than January 1989.
2. That the annuity for crop year 1985-86, 1986-87, and 1987-88 will be
complied in cash equivalent of 100 piculs of sugar and taking into
consideration the composite price of sugar during each sugar crop year,
which is in the total amount of P105,000.
3. The P105,000 will be paid or delivered on a staggered cash installment
payable on or before the end of December of every sugar crop year =
P26,250 payable on or before December of every crop year
Issue: Are the obligations of the person who has inherited property extinguished
when he dies?
Ruling: It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent  and compulsory heirs are
called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory
heirs.  Thus, the petitioner, his mother and sisters, as compulsory heirs of the
instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without
need of further proceedings, and the successional rights were transmitted to them
from the moment of death of the decedent, Dr. Jorge Rabadilla.
UNDER ART. 776 OF THE NCC, INHERITANCE INCLUDES ALL THE PROPERTY, RIGHTS
AND OBLIGATIONS OF A PERSON, NOT EXTINGUISHED BY HIS DEATH. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted
to his forced heirs, at the time of his death. And since obligations not extinguished by
death also form part of the estate of the decedent; corollarily, the obligations
imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No.
1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct
thereof would be delivered to the herein private respondent every year.
Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded
to his rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein
private respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being demanded by the latter
through the institution of the case at bar. Therefore, private respondent
has a cause of action against petitioner and the trial court erred in
dismissing the complaint below.
Didn’t include discussion on substitution and modal institution (Art. 882 and 883)
PAMPLONA VS. MORETO
96 SCRA 775
Facts:
Spouses Flaviano Moerto and Monica Maniega bought Lots Nos. 1495,
4545, and 1496 of the Calamba Friar Land Estate in Calamba, Laguna. Certificates of
title were issued in the name of Flaviano Moreto married to Monica Maniega. They
had 6 children: Ursulo, Marta, La Paz, Alipio, Pablo and Leandro.
• May 24, 1959 - Ursulo died intestate; heirs are herein plaintiffs: Vivencio,
Marcelo, Rosario, Victor, Paulina, Marta and Eligio
• April 30, 1938 - Marta died intestate leaving Victoria Tuiza as her heir
plaintiff
• July 17, 1954 - La Paz died intestate; heirs are herein plaintiffs: Pablo,
Severina, Lazaro and Lorenzo Mendoza
• June 30, 1943 - Alipio died intestate, leaving Josefina Moreto as his heir
plaintiff
• April 25, 1942 - Pablo Moreto died intestate leacing no issue and as his
heirs his brother plaintiff Leandro Moreto and other plaintiffs herein.
• May 6, 1946 - Monica Maniega died intestate
More than 6 years after the death of Monica, Flaviano, without the consent of his
heirs and before any liquidation of the conjugal partnership, sold Lot 1495 to
Germiniano Pamplona, married to Apolonia Onte, evidenced by a Deed of Absolute
Sale for P900. Consequently, a new TCT was issued in the name of Pamplona. The
vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time
that the portion of 781 square meters which was the subject matter of their sale
transaction was No. 1495 and so lot No. 1495 appears to be the subject matter in the
deed of sale (Exh. "1") although the fact is that the said portion sold thought of by the
parties to be lot No. 1495 is a part of lot No. 1496.
- Germiniano constructed a house in Lot 1496
- Son also constructed a house also in Lot 1596
- Piggery was built
Flaviano Moreto died intestate on August 12, 1956. In 1961, the Plaintiffs demanded
the defendants to vacate the premises where they had their house and piggery on the
ground that Flaviano had no right to sell the lot which he sold to Geminiano. Spouses
Geminiano and Apolonia refused.
Consequently, a suit was filed by the heirs of Monica Maniega seeking for the
declaration of nullity of the deed of sale.
After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it
was found out that there was mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because while the said deed recited
that the lot sold is lot No. 1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496 which was the subject matter
of their sale transaction. 
Issue: Whether Petitioners Pamplona are entitled to the full ownership of the
property in litigation or only ½ of the same.
Ruling:
THE ESTATE BECAME THE PROPERTY OF A COMMUNITY BETWEEN THE SURVIVING
HUSBAND, FLAVIANO AND HIS CHILDREN WITH THE DECEASED MONICA MANIEGA
IN THE CONCEPT OF A CO-OWNERSHIP because
- Pamplonas bought the lot after Monica had died
- Conjugal partnership of the spouses Flaviano and Monica had already been
dissolved
- Conjugal estate had not been inventoried, liquidated, settled and divided by
the heirs in accordance with law
- Necessary proceedings for the liquidation of the conjugal partnership were
not instituted by the heirs either in the testate or intestate proceedings
- There was no extra-judicial partition between the surviving spouse and the
heirs of the deceased spouse
- There are no ordinary action for partition brought for the purpose
Consequently, The community property of the marriage, at the dissolution of this
bond by the death of one of the spouses, ceases to belong to the legal partnership
and becomes the property of a community, by operation of law, between the surviving
spouse and the heirs of the deceased spouse, or the exclusive property of the
widower or the widow, it he or she be the heir of the deceased spouse. Every co-
owner shall have full ownership of his part and in the fruits and benefits derived
therefrom, and he therefore may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, unless personal rights are in question. (Marigsa vs.
Macabuntoc, 17 Phil. 107)
PRIVATE RESPONDENTS ARE IN ESTOPPEL BY LACHES TO CLAIM HALF OF THE
PROPERTY. Estoppel by laches is a rule of equity which bars a claimant from
presenting his claim when, by reason of abandonment and negligence, he allowed a
long time to elapse without presenting the same.
- Private Respondents did not complain for a period of over 9
years.
- Respondents and Petitioners lived as neighbors
ART. 493 IS APPLICABLE.
Art. 493. Each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involve. But the effect of
the alienation or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in the division upon
the termination of the co-ownership.
The subject lots 1495, 1496 and 4545 constitute one big land. Hence, at the time of
the sale, the co-ownership constituted or covered these three lots adjacent to each
other. And since Flaviano Moreto was entitled to one-half pro-indiviso of the entire
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land area or 1,173 sq. meters as his share, he had a perfect legal and lawful right to
dispose of 781 sq. meters of his share to the Pamplona spouses. Indeed, there was
still a remainder of some 392 sq. meters belonging to him at the time of the sale.
THE CONTENTION THAT THE SALE WAS VALID AS TO ½ AND INVALID AS TO THE
OTHER ½ MUST BE REJECTED.
- Flaviano had the legal right to more than 781 sqm of the
communal estate
- Title may be pro-indiviso or inchoate but the moment the co-
owner as vendor pointed out its location and even indicated the
boundaries without objection by the other co-owners, the Court
ruled that a factual partition or termination of the co-ownership,
although partial was created and barred Flaviano and the heirs
from asserting against the Petitioners any right or title in
derogation of the deed of sale executed by Flaviano.
EQUITY COMMANDS THAT PRIVATE RESPONDENTS MAY NOT BE ALLOWED TO
IMPUGN THE SALE MADE BY FLAVIANO. THUS THE PRIVATE RESPONDENTS ARE
DUTY BOUND TO COMPLY WITH THE PROVISIONS OF ART. 1458 AND 1495 OF THE
CIVIL CODE which is the obligation of the vendor of the property of delivering and
transferring the ownership of the whole property sold, which is transmitted on his
death to his heirs herein Private Respondents.
UNDER ART. 776, THE INHERITANCE WHICH PRIVATE RESPONDENTS RECEIVED
FROM THEIR DECEASED PARENTS AND/OR PREDECESSORS IN INTEREST INCLUDED
ALL THE PROPERTY RIGHTS AND OBLIGATIONS WHICH WERE NOT EXTINGUISHED
BY THEIR PARENTS’ DEATH. And under Art. 1311, paragraph 1, New Civil Code, the
contract of sale executed by the deceased Flaviano Moreto took effect between the
parties, their assigns and heirs, who are the private respondents herein. Accordingly,
to the private respondents is transmitted the obligation to deliver in full ownership
the whole area of 781 sq. meters to the petitioners (which was the original obligation
of their predecessor Flaviano Moreto) and not only one-half thereof. Private
respondents must comply with said obligation.
The records reveal that the area of 781 sq. meters sold to and occupied by petitioners
for more than 9 years already as of the filing of the complaint in 1961 had been re-
surveyed by private land surveyor Daniel Aranas. Petitioners are entitled to a
segregation of the area from Transfer Certificate of Title No. T-9843 covering Lot
1496 and they are also entitled to the issuance of a new Transfer Certificate of Title
in their name based on the relocation survey.
Petitioners are declared owners in full ownership of the 781 sqm at the eastern
portion of Lot 1496.
LEDESMA VS. MCLACHLIN
64 Phil. 547
Facts:
Respondents McLachlin, Quitco, Jr., Sabina, Rafael and Marcelo Quitco
appeal from the decision of the CFI which declared Ana Quitco Ledesma an
acknowledged natural daughter of the deceased Lorenzo Quitco and that the
Respondents should pay Socorro Ledesma jointly and severally the sum of P1,500
with legal interest.
Socorro lived martially with Lorenzo Quitco while the latter was single. They had a
daughter, Ana Quitco Ledesma. The relationship ended in 1921, however, there is a
deed executed by Lorenzo acknowledging that Ana is his natural daughter. On Jan 21,
1922, he issued a promissory note to Socorro wherein he promised to pay P2000
under the following terms:
- P250 to be paid on the first day of March 1922
- P250 to be paid on the first day of Nov 1922
- P1500 to be paid 2 years from the execution of the note
Lorenzo married defendant, Conchita McLachlin. They had 4 children who are also
defendants in this case.
March 9, 1930, Lorenzo Quitco died and on December 15, 1932 his father Eusebio
Quitco died leaving real and personal properties. Administration proceedings of said
properties were instituted before the trial court.
Upon the institution of the intestate of the deceased Eusebio, and the appointment of
the committee on claims and appraisal, Socorro on August 26, 1935 filed before said
committee the promissory note for payment. The committee elevated the same to
the trial court en consulta and the presiding judge returned said consulta and
refrained from giving his opinion for lack of jurisdiction.
November 14, 1933 – the trial court issued an order of declaration of heirs in the
intestate of Eusebio Quitco. Socorro asked for the reconsideration of which as Ana
Quitco Ledesma was not included among the declared heirs. The motion was denied,
thus this appeal.
Issue #1: Whether the action to recover P1500 (the last installment of the payment of
the promissory note) has prescribed.
Ruling: More than ten years having thus elapsed from the expiration of the period for
the payment of said debt of P1,500, the action for its recovery has prescribed under
section 43, No. 1, of the Code of Civil Procedure.
Issue #2: Whether the properties inherited by the defendants from their deceased
grandfather by representation are subject to the payment of debts and obligations of
their deceased father, who died without leaving any property.
Ruling:
While it is true that under the provisions of articles 924 to 927 of the Civil Code, a
children presents his father or mother who died before him in the properties of his
grandfather or grandmother, this right of representation does not make the said child
answerable for the obligations contracted by his deceased father or mother, because,
as may be seen from the provisions of the Code of Civil Procedure referring to
partition of inheritances, the inheritance is received with the benefit of inventory, that
is to say, the heirs only answer with the properties received from their predecessor.
The herein defendants, as heirs of Eusebio Quitco, in representation of their father
Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from
whom they did not inherit anything.
For the foregoing considerations, we are of the opinion and so hold: (1) That the filing
of a claim before the committee on claims and appraisal, appointed in the intestate
of the father, for a monetary obligation contracted by a son who died before him,
does not suspend the prescriptive period of the judicial action for the recovery of said
indebtedness; (2) that the claim for the payment of an indebtedness contracted by a
deceased person cannot be filed for its collection before the committee on claims
and appraisal, appointed in the intestate of his father, and the propertiesinherited
from the latter by the children of said deceased do not answer for the payment of the
indebtedness contracted during the lifetime of said person.
Art. 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
Upon the death of the decedent, the rights of the heirs are not transmitted but they
are made effective. What is being transmitted would be the rights of the decedent
along with his properties, rights and obligations.
We have to correct this provision:
THE RIGHTS OF THE SUCCESSION ARE MADE EFFECTIVE FROM THE MOMENT OF
THE DEATH OF THE DECEDENT.
What is the consequence of this provision? It is only death that opens succession.
What if your parents own several properties and they are selling those properties for
only P1M although the value of the same is really P10M? Can you, as future heir
question the sale? No. This is because you only have an inchoate right to the
property. If you are an only child, you still cannot question the sale because until the
death of your predecessors, you only have an inchoate right or expectancy. Moreover,
even as the only child, you are not really sure if you can survive your parents.
As long as the parents are still alive, the children cannot claim rights over the
properties. They only have an expectancy. They can only claim rights if they survive
because succession ispremised on the survival of the heirs. That is why even if you’re
the only child, and there’s still a possibility that the child can predecease the parents
— in which case the parents will inherit from the child. Without death, the rights are
merely inchoate. The rights are only made effective upon the death of the decedent.
FUTURE PROPERTIES
Can one enter a contract involving future properties?
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This is an illustration of the principle that during the lifetime of the decedent the
Emptio Rei Sparatae Emptio Spei
heirs only have inchoate rights. They cannot question.

sale of an expected thing
sale is subject to the condition that the
thing will exist; if it does not, there is
no contract
the uncertainty pertains to the quantity
and the quality of the thing and not the
existence of the thing
sale of a mere hope or expectancy that
the thing will come to existence; sale of
the hope itself
sale produces effect even if the thing
does not come into existence, unless it
is a vain hope
the uncertainty pertains to the
existence of the thing
In this case, the decedent Doña Catalina had the absolute right to dispose of her
properties because at the time when she disposed of the properties, she was the
owner. The nephews and nieces only had an expectancy. Thus she definitely had the
right to dipose of her properties and even deprive the nephews and nieces of any
property.
How about the contention on inofficiousness? What do we mean by inofficious?
We will discuss this under legitimes and colation but just an overview: the law has
allocated a certain part of the estate which we call legitime — which is the part of the
estate which is reserved to the compulsory heirs. The deceased cannot deprive his
heirs of the latters’ legitime without a valid ground.

object is a future thing object is a present thing which is the
hope or expectancy
GR: Future things can be the subject of contracts for as long as such will come into
existence.
Exception: Cannot sell future inheritance. Again, the rights to the succession are only
made effective upon the death of the decedent. What the heir has over that
inheritance is merely an inchoate right or an expectancy.
Exception to the Exception: We will discuss that later in partition. In cases involving
partition inter vivos, one can enter into a contract even if it is a future inheritance.
LOCSIN VS. CA
GR 89783, February 19, 1992
FACTS: Locsin Spouses (owners of the properties in controversy) disclosed to their
lawyer that upon their death, their properties shall revert to their respective sides of
the family. Mariano’s to the Locsin relatives and Catalina’s to her Jaucian relatives.
The value of the donations and other gratuitous dispositions done by the deceased
when he was still alive, will be returned to the estate of the deceased to preserve the
legitimes of the compulsory heirs — this is what we call colation. If the gratuitous
dispositions exceed the free portion, thereby prejudicing the legitimes, then those
donations are called inofficious. The law does not allow the decedent to deprive his
compulsory heirs of their legitimes with no valid ground. Take note that this is only
available to the compulsory heirs who are entitled to compulsory heirs and not to the
nephews and nieces (who are only legal heirs and not compulsory heirs) in the case
of Locsin.
Can the compulsory heirs impugn the dispositions made by their predecessors?
During the lifetime, they cannot. But after the death, what they can question are
those gratuitous dispositions. Sale cannot be impugned because even if the person
parts with the property, he receives something in return. Unless it can be questioned
that in reality it is really a donation. If it is a sale, it is not subject to colation. Take
note that the colation can only be impugned to the extent of their legitimes and only
if they survive the decedent.

Doña Catalina carried out the terms of their compact. 9 years after the death of
Mariano, she began transferring by sale, donation or assignment the properties. She
ratiified such transfers upon her death. The will was not submitted for probate as
agreed upon.
6 years later after Doña Catalina’s demise, some of her Jaucian nephews and nieces
who already received their legacies and hereditary shares from her estate contended
that the properties she conveyed during her lifetime to the Locsins was inofficious
and was done to circumvent the laws on succession.
FELIPE VS. HEIRS OF ALDON
February 15, 1983
FACTS: The lot in controversy was sold by Gimena to Felipe. This sale was made
without the consent of Gimena’s husband, Maximo.
The heirs of Maximo Aldon: Gimena and children filed a complaint against the
Felipes. They alleged that they mortgaged the properties to the Felipes. However,
when they offered to redeem the same, the Felipes refused.

ISSUE: Are Jaucians entitled to inherit the properties Catalina had already disposed
of more tha 10 years before her death ?
RULING: NO. The rights to a person’s succession are transmitted from the moment of
his death, and do not vest in his heirs until such time. Property which Doña 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. Had she
died intestate, only the property that remained in her estate at the time of her death
devolved to her legal heirs; and even if those transfers were, one and all, treated as
donations, the right arising under certain circumstances to impugn and compel the
reduction or revocation of a decedent's gifts inter vivos does not inure to the
respondents since neither they nor the donees are compulsory (or forced) heirs.
- The transfers could not be inofficious because respondents are not Catalina’s
compulsory heirs who are entitled to legitimes
- No legitimes could be possibly impaired by any transfer of her property during
her lifetime. All the respondents had was an expectancy that in no wise
restricted her freedom of even her entire estate subject only to the limitation
set forth in Art. 750.
Art. 750. The donation may comprehend all the present property of the donor
or part thereof, provided he reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and of all relatives who, at the
time of the acceptance of the donation, are by law entitled to be supported
by the donor. Without such reservation, the donation shall be reduced on
petition of any person affected.
ISSUE: Is the sale made by Gimena without the consent of Maximo void?
RULING: VOIDABLE. The voidable contract of Gimena was subject to annulment by
her husband only during the marriage because he was the victim who had an interest
in the contract. Gimena, who was the party responsible for the defect, could not ask
for its annulment. Their children could not likewise seek the annulment of the
contract while the marriage subsisted because they merely had an inchoate right to
the lands sold.
The case of Sofia and Salvador Aldon is different. After the death of Maximo they
acquired the right to question the defective contract insofar as it deprived them of
their hereditary rights in their father's share in the lands. The father's share is one-
half (1/2) of the lands and their share is two-thirds (2/3) thereof, one-third (1/3)
pertaining to the widow.
The children's cause of action accrued from the death of their father in 1959 and they
had thirty (30) years to institute it (Art. 1141, Civil Code.) They filed action in 1976
which is well within the period.
Note:
Why did they question the sale? Because they were deprived to their hereditary rights
over the property, being children of the deceased.
What is the contention of the buyer here?

Note: What about the allegations of the nephews and nieces that the sale was made
with no consideration and these sales were inofficious and intended solely to
circumvent the law? The nieces and nephews of Catalina were not the compulsory
heirs and thus cannot question the transfer of such properties.
The argument of the other party was that there was prescription. The rights of the
heirs have already prescribed. They took such a long time to question the sale. The
SC said that the period should be counted from the moment of death. Because the
properties are transmitted to the heirs from the moment of death. Take note that the
ground for the question was the sale deprived them of their hereditary rights. So they

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cannot have been deprived of their hereditary rights during the lifetime of their father.
Their cause of action to invoke that right would naturally accrue from the time of
death of their father. As we discussed, the heirs also could not question the sale by
the father during the latter’s lifetime for the reason that they only had an inchoate
right.
What is the nature of the sale in the case? Voidable. There was a 10-year period
where that could be impugned.
At that time, that kind of sale was considered as voidable. What would be the nature
of that kind of sale if it was made during the effectivity of the FC? The sale would be
void. Based on the case of Fuentes vs. Roca, the same would be void. Even if they
got married during the Civil Code, as long as the sale took place during the effectivity
of the Family Code, the sale is void. With more reason if the marriage is celebrated
during the effectivity of the Family Code, the sale done is during the effectivity of the
Family Code, it would be void for being without the consent of the other spouse.
Let’s go to the concept of death. We know that the properties, rights and obligations
are transmitted from the moment of death. So the rights to the succession are made
effective from the moment of death of the decedent.
Death is the key word here. Without death, there can be no succession. Because
death is inevitable, there’s succession.
WHAT KIND OF DEATHS OPEN SUCCESSION?
1. In PHYSICAL OR ACTUAL DEATH, there is no question that there should really be
succession because the person is already gone.
Definition under the Organ Donation Act of 1991:
Sec. 1 (j). “Death” -- the irreversible cessation of circulatory and respiratory
functions or the irreversible cessation of all functions of the entire brain,
including the brain stem. A person shall be medically and legally dead if either:
(1) In the opinion of the attending physician, based on the acceptable
standards of medical practice, there is an absence of natural
respiratory and cardiac functions and, attempts at resuscitation
would not be successful in restoring those functions. In this case,
death shall be deemed to have occurred at the time these functions
ceased; or
(2) In the opinion of the consulting physician, concurred in by the
attending physician, that on the basis of acceptable standards of
medical practice, there is an irreversible cessation of all brain
functions; and considering the absence of such functions, further
attempts at resuscitation or continued supportive maintenance
would not be successful in resorting such natural functions. In this
case, death shall be deemed to have occurred at the time when
these conditions first appeared.
The death of the person shall be determined in accordance with the
acceptable standards of medical practice and shall be diagnosed separately
by the attending physician and another consulting physician, both of whom
must be appropriately qualified and suitably experienced in the care of such
parties. The death shall be recorded in the patient's medical record.
2. PRESUMED DEATH OR PRESUMPTIVE DEATH
(a) Ordinary Presumption
Art. 390. After an absence of 7 years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of 10 years. If he disappeared after the age
of 75 years, an absence of 5 years shall be sufficient in order that his
succession may be opened.
When we say “for the purposes of succession,” it refers to the purpose of
distributing the properties to his heirs.
When do we consider someone presumptively dead? 10 years, when he is
absent and his whereabouts are unknown — uncertain whether he is dead or
alive. After that, his estate can now be distributed by succession. The law
mentions 7 years but that is not for succession. If the person disappears
after the age of 75, 5 years is sufficient.
(b) Qualified or Extraordinary Presumption
Art. 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of or for 4
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has
been missing for 4 years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for 4 years.
So here, there is danger of death, qualified or extraordinary presumption.
Because of the danger of death, the law gives only 4 years for the
presumption to set in. Take note of those circumstances.
Remember in your Family Code, these things are also discussed? How long
can a person be presumed dead for the abandoned spouse to be remarried
again? Ordinarily, 4. If there is danger of death, only 2 years. That is for
remarriage, for succession, it takes a longer time for the presumption to set
in.
As to the counting of the period, if it is ordinary presumption, the date of
death will be presumed to be 10 years later. What is the importance? The
value of his estate will be computed based on his value after his presumed
death 10 years later. If there are acquired properties before he is presumed
dead, it will be part of the estate. (Why is he able to acquire properties if he
is “dead”.) Those properties will be distributed to his heirs. For purposes of
computing the estate tax, it shall be based on the time of the death (10 years
later.)
How about qualified or extraordinary presumption? 4 years. If he
participated in Marawi in 2000, he may be considered dead in 2004. Date of
death would be 2000. Why? Because the danger of death happened in 2000.
EASTERN VS. LUCERO
124 SCRA 326
FACTS: Capt Lucero died in the vessel en route to HongKong. Upon the
receipt of his radio messages to the Company, it ordered the search and
rescue operation among others. M/V astern Minicon through its surveyors,
confirmed the loss of the vessel. Thereafter, the Company paid the
corresponding death benefits to the heirs of the crew members, except
respondent Josephine Lucero, who refused to accept the same.
Mrs. Lucero contended that she is entitled to the salary of her husband since
he is not yet presumed dead — the 4 year period has not expired.
ISSUE: Is Mr. Lucero dead for all purposes?
RULING: YES. Company received three (3) radio messages from Capt. Lucero
on board the M/V Eastern Minicon the last of which, received at 9:50 p.m. of
that day, was a call for immediate assistance in view of the existing "danger":
"sea water was entering the hatch"; the vessel "was listing 50 to 60 degrees
port," and they were "preparing to abandon the ship any time.' After this
message, nothing more has been heard from the vessel or its crew until the
present time.
There is thus enough evidence to show the circumstances attending the
loss and disappearance of the M/V Eastern Minicon and its crew. The
foregoing facts, quite logically. are sufficient to lead Us to a moral certainty
that the vessel had sunk and that the persons aboard had perished with it.
upon this premise, the rule on presumption of death under Article 391 (1) of
the Civil Code must yield to the rule of preponderance of evidence. As this
Court said in Joaquin vs. Navarro "Where there are facts, known or knowable,
from which a rational conclusion can be made, the presumption does not
step in, and the rule of preponderance of evidence controls."
Note: Art. 391 cannot apply in this case because the presumption of death
needs to give way to the actual preponderance of evidence when in fact Capt
Lucero during the capsizing of the boat. That the attending circumstances at
the case at bar, point with certainty to the death of Capt. Lucero.
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What rule should govern here? The rule on preponderance of evidence.
Although we have the rule on presumptions. But the SC said, if there are facts
which are known or knowable from which a rational inference can be gathered
that the person had already perished, we don’t stick to the presumption. The
rule on presumption should yield to the preponderance of evidence. Thus, here
to wait for 4 years is not necessary to declare Capt Lucero dead.
When there is already death, whether actual or presumed, the the rights of the heirs
become vested. No longer are those inchoate or an expectancy. As a consequence,
what can the heirs do?
EMNACE VS. CA
370 SCRA 431, November 23, 2001
FACTS: After Vicente Tabanao’s death, the partnership of Tabanao, Emnace and
Divinagracia was dissolved. Emnace failed to submit to Tabanao’s heirs any
statement of assets and liabilities of the partnership, and to render an accounting of
the partnerships finances. Petitioner also reneged on his promise to turn over to
Tabanaos heirs the deceaseds 1/3 share in the total assets of the partnership,
amounting to P30,000,000.00, or the sum of P10,000,000.00, despite formal demand
for payment thereof — thus this complaint.
Emnace asserts that the surviving spouse of Vicente Tabanao has no legal capacity
to sue since she was never appointed as administratrix or executrix of his estate
ISSUE: Do the heirs of Tabanao have standing to file this case?
RULING:
The surviving spouse does not need to be appointed as executrix or administratrix of
the estate before she can file the action. She and her children are complainants in
their own right as successors of Vicente Tabanao. From the very moment of Vicente
Tabanaos death, his rights insofar as the partnership was concerned were
transmitted to his heirs, for rights to the succession are transmitted from the
moment of death of the decedent.
Whatever claims and rights Vicente Tabanao had against the partnership and
petitioner were transmitted to respondents by operation of law, more particularly by
succession, which is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance of a person are transmitted.
Moreover, respondents became owners of their respective hereditary shares from the
moment Vicente Tabanao died.
Note:
From the moment of death of the decedent, the heirs step into his shoes.
What did the heirs inherit? Did they inherit the right to become partner? The heirs did
not inherit the right to become a partner since it is personal. In fact, the death of the
partner dissolves the partnership. What the heirs inherited here is the right of the
deceased partner to demand for the accounting and distribution of the assets.
Moreover, there was already dissolution of the partnership prior to the death of
Tabanao.
The important point that you have to remember here: it is not necessary for the heirs
to be appointed as executors or administrators before they can file cases for and in
behalf of the estate. In their own right as heirs, from the moment of death, because of
succession, they step into the shoes of their predecessors. In this case, the wife and
the children step into the shoes of Tabanao. Tabanao himself during his lifetime had
the right to institute the action. When he died, these rights were inherited by his
heirs.
ADMINISTRATOR VS. EXECUTOR
1) Administrator/Administatrix — latter is the lady counterpart; he or she is
appointed to administer the estate (applicable whether there is a will)
2) Executor/Executrix — he or she is appointed by the testator or testatrix in the
latter’s will as the administrator/administatrix to administer.
In Emnace, there was no appointed executor/administrator yet so the parties may file
a case for and in behalf of the estate in their own right as heirs.
First Exam
RIOFERIO VS. CA
GR 129008, January 13, 2004
FACTS: Children-heirs of deceased in the 1st marriage found out about the extra-
judicial settlement made by 2nd family. they filed a petition for annulment of the EJ
settlement.
Paramour of deceased contended that property subject of the contested deed of
extra-judicial settlement pertained to the properties originally belonging to the
parents of Teodora Riofero and that the titles thereof were delivered to her as an
advance inheritance but the decedent had managed to register them in his name.
Petitioners also raised the affirmative defense that respondents are not the real
parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the
pendency of the administration proceedings.
ISSUE: Do the Orfinadas have the capacity to sue?
RULING: YES.
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.
Even if there is an appointed administrator, jurisprudence recognizes two
exceptions, viz:
(1) if the executor or administrator is unwilling or refuses to bring suit; and
(2) when the administrator is alleged to have participated in the act complained
of and he is made a party defendant.
Evidently, the necessity for the heirs to seek judicial relief to recover
property of the estate is as compelling when there is no appointed
administrator, if not more, as where there is an appointed administrator
but he is either disinclined to bring suit or is one of the guilty parties
himself.
(3) when there is no appointed administrator (like in this case)
Note: Even if there is already a proceeding which is pending for the appointment of
the executor/administrator, as long as nobody has been appointed, anyone of the
heirs may file actions for and in behalf of the estate.
How about if there is an appointed executor/administrator? Can the heirs still
institute actions on behalf of the estate? The general rule is that the appointed
administrator the exeutor should institute the actions on behalf of the estate.
In Rioferio, there are 2 instances stated where the heirs may still file an action
despite of the appointment of an administrator/executor.
1. If the executor/administrator is unwilling or refuses to bring suit
2. When the administrator is alleged to have participated in the act
complained of and he is made a party defendant.
GR: If there is an appointed administrator or executor, he should be the one to file
actions for and in behalf of the estate.
E: The heirs may still institute an action when:
1. The executor/administrator is unwilling or refuses to bring suit
2. The administrator is alleged to have participated in the act complained of
and he is made a party defendant.
WHEN WILL OWNERSHIP START?
Remember the basic principle: Upon the death of the decedent, the heirs step into his
shoes. The properties, rights and obligaitons are transmitted. What they have is no
longer inchoate or a mere expectancy — but a vested right.
Since a will can only be given effect or there can be a transfer of the properties, rights
and obligations only after the will has been probated — When will ownership start?
From the time of death of the decedent or from the probate of the will?
Again, the transmission happens at the moment of death — Even if the will is
probated much later. In the meantime when the will is not probated, although
they have rights, they cannot invoke the will. They have to probate the will
first.
How about if there is an extrajudicial settlement, when will the ownership of their
lot, start?
FROM THE MOMENT OF DEATH — Even if the extrajudicial partition or the
affidavit of self-adjudication (if there is only one heir) is executed or done
later.
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What if the testator provides that the heirs will not get the property until after 10
LLENARES VS. CA
years from his death? What is the consequence of that provision? When will the
GR 98709, May 13, 1993
ownership start?
FACTS: Zabella and Llenares were co-owners in equal shares of the property in
queston. Llenares sold his 1/2 share to Ariston Zabella (father of Zabella). Llenares GR: WHEN WE ARE TALKING ABOUT COMPULSORY HEIRS, AS A GENERAL
was survived by his only child, Petitioner. Zabella was survived by his niece, Irene RULE, ARE ENTITLED TO THEIR LEGITIMES.
Catapat and Juan Zabella. The testator cannot impose any condition, burden or incumbrance
whatsoever upon the legitime. That is not allowed by law because if the
Zabella filed an adverse claim over the whole lot. testator is allowed to do so, he might impose very difficult conditions or
burdens in such a way that the legitimes of the compulsory heirs are
ISSUE: Whether Zabella lost his right to possess the lot. effectively defeated/deprived of their legitimes.
RULING: THE EXISTENCE OF THE OCT OVER THE LOT IN THE NAME OF JUAN
ZABELLA’S NAME PROTECTED THE PETITIONER AS THE SOLE HEIR OF ANASTACIO E: THE TESTATOR MAY PROHIBIT THE PARTITION OF THE LEGITIME IN THE
LLENARES. There is no law which requires her, as a sole heir, to execute an affidavit FF. CASES
of adjudication and cause both the cancellation of the OCT and the issuance of a new 1. The testator may prohibit the partition for forced heirs for a maximum
one in her name and in the names of the heirs of co-owner Juan Zabella in order to period of 20 years. This only applies to the compulsory or the forced heirs.
transfer the ownership of the property to her, or protect her rights and interests 2. The decedent may provide or limits in devises or voluntary inheritance
therein. The transfer in her favor took place, ipso jure, upon the death of Anastacio whose inheritance is by reason of the generosity or liberality of the
Llenares. testator — not entitled as a matter of right.

Note: There was an self-adjudication later executed but the transfer took place from
the moment of death by operation of law.

PRESUMPTIONS UNDER THE RULES OF COURT.

Rule 131, Sec. 3 (kk). That if there is a doubt, as between two or more persons who INING ET AL VS. VEGA
are called to succeed each other, as to which of them died GR 174727, August 12, 2013
first, whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, they shall be
considered to have died at the same time. (5a)

HEIRS OF TOMAS CALIPATURA SR. VS. PRADO

For the purpose of succession, we have no presumption as to who died first. In some
GR 156879, January 20, 2004
cases where a child is 18 years old and the other is 80 years — the one who is 18
years old will be presumed to died later. We do not have this in succession.

Whoever alleges that the father died before the son or the son died before the father
has to present evidence. IN THE MATTER OF GUARDIANSHIP OF THE LAVIDES VS. CITY COURT OF LUCENA
GR L-50261, May 31, 1982
In the absence of any evidence, then the law says they shall be presumed to have
died at the same time. The legal consequence in this case is that there is no
succession from one to the other.
BONILLA VS. BARCENA
Let’s recap: <>
GR: There is no succession during the lifetime of the decedent. The heirs only have
an inchoate right or a mere expectancy.

E: Even during the lifetime of the decedent, the heirs can already inherit in a concept BORROMEO-HERRERA VS. BORROMEO
of FREAK SUCCESSION. 152 SCRA 172

Why is it called freak succession? It is unusual. It does not usually happen as death
opens succession.
DELA MERCED VS. DELA MERCED
1. Annulment of Marriage or Declaration of Nullity of Marriage February 25, 1999
Part of the decree of the court will be for the delivery of the presumptive
legitimes of the children.

Presumptive legitime — possible legitime that these children will get as if GAYON VS. GAYON
their parents are dead. November 26, 1970

Why is there a need of the delivery of the presumptive legitimes? The law
prevents the co-mingling of the properties of the dissolved marriage and the
new marriage when the ex-spouses remarry other people. This will protect
PALICTE VS. REMOLETE
the property rights of the children.
September 21, 1987
What happens when the parents/ex-spouses actually die? Then the
presumptive legitimes shall be considered as advances and the amount
lacking to satisfy the “legitime” will be added.
GEVERO VS. IAC
going back.. GR 77029, August 30, 1990

Transfer happens upon death even if the will is probated later on or even if the heirs
executed an extrajudicial partition much later, the reckoning point is the moment of
death.

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court which takes frist cognizance of the settlement of the estate of a decedent, shall
SUAREZ VS. CA
exercise jurisdiction to the exclusion of all other courts. Thus, having filed the
GR 94918, September 2, 1992
petition at 8AM whereas the other petition before the CFI Bulacan was filed at 11AM,
it is CFI Rizal which has jurisdiction.

ISSUE: Which court has jurisdiction?

RULING: CFI OF BULACAN HAS JURISDICTION.
1) Sec. 3, Rule 76 provides (old Rule 77) provides
LORENZO VS. POSADAS SEC. 3. Court to appoint time for proving will. Notice thereof to be published. —
64 Phil 353 When a will is delivered to, or a petition for the allowance of a will is filed in,
the Court having jurisdiction, such Court shall fix a time and place for
proving the will when all concerned may appear to contest the allowance
thereof, and shall cause notice of such time and place to be published three
(3) weeks successively, previous to the time appointed, in a newspaper of
Art. 778. Succession may be: general circulation in the province.
(1) Testamentary; But no newspaper publication shall be made where the petition for
(2) Legal or intestate; or probate has been filed by the testator himself.
2) The use of the disjunctive in the words "when a will is delivered to OR a petition
(3) Mixed.
for the allowance of a will is filed" plainly indicates that the court may act upon
BASIC CLASSIFICATION OF SUCCESSION: the mere deposit therein of a decedent's testament, even if no petition for its
1. Testamentary (Art. 779) allowance is as yet filed. Where the petition for probate is made after the deposit
2. Legal of the will, the petition is deemed to relate back to the time when the will was
3. Mixed (Art. 780) delivered. Since the testament of Fr. Rodriguez was submitted and delivered to
the Court of Bulacan on March 4, while petitioners initiated intestate
proceedings in the Court of First Instance of Rizal only on March 12, eight days
Art. 779. Testamentary succession is that which results from the later, the precedence and exclusive jurisdiction of the Bulacan court is
designation of an heir, made in a will executed in the form prescribed incontestable. Therefore, the estate proceedings having been initiated in CFI
by law. Bulacan ahead of any other, that court is entitled to assume jurisdiction to the
exclusion of all other courts.
TESTAMENTARY SUCCESSION 3) The Petitioners commenced intestate proceedings after they learned of the
- there is a will delivery of Fr. Rodriguez’s will to the CFI Bulacan, was in bad faith — patently
- take note under Art. 779, there must be a designation of heirs; so the testator done to divest the latter court of the precedence awarded to it by the Rules
should designate a person who will receive the properties in the will for it to be 4) In our system of civil law, intestate succession is only subsidiary or subordinate
considered as such to the testate, since testacy only takes place in the absence of a valid operative
will. Art. 960 provides certain grounds when legal or intestate succession may
What if there is no recipient in the will? If the document merely mentions an take place. Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only
appointment of an executor is it a will? Although, valid is not a will. after final decision as to the nullity of testate succession could an intestate
succession be instituted in the form of pre-established action". The institution of
How about the document acknowledging an illegitimate child, is that a will? No intestacy proceedings in Rizal may not thus proceed while the probate of the
because there is no designation of an heir. purported will of Father Rodriguez is pending.

How about a document which contains only a disinheritance, is it a will? Note:

YES. Will be discussed later on.
PRINCIPLES IN TESTAMENTARY SUCCESSION:
1. If there is a will, it has to pass probate
2. TESTAMENTARY SUCCESSION IS PREFERRED OVER INTESTATE SUCCESSION.
Why? Because when a person executes a will, the contents of that document are his
wishes.He wants those provisions (his wishes) to be complied with. Unlike in legal
succession, there is no will, the properties will be distributed in accordance with law.
What was the provision under the rules of court which they relied upon? Rule 73,
Sec. 1.
What if the will is allowed in the probate proceedings? What will happen to the
intestate proceedings? The intestate proceedings will not proceed anymore. If the
will is allowed, then the properties shall be distributed in accordance with the will. If
the will is disallowed, the intestate proceedings shall now continue. If the will is void,
the properties shall be distributed in accordance with legal succession which is the
subject of the intestate proceeding.

What is the consequence of such preference? Let’s discuss the case of Rodriguez vs. One of the reasons why the probate was allowed: Testacy is favored over intestacy.
Borja
Another reason is that the will was delivered to the court before the intestate
proceeding was filed. This is in accordance Sec. 3, Rule 77. The probate court
RODRIGUEZ VS. BORJA acquired jurisdiction before the court where the intestate proceedings were filed.
17 SCRA 41

FACTS: This involves the alleged will of Fr. Celestino Rodriguez who died on Feb 12,
1963.
On March 4, 1963, Pangilinan and Jacalan delivered to the Clerk of Court of Bulacan a
last willl and testament of Fr. Rodriguez.
On March 12, 1963, Petitioners Rodriguez filed before the CFI of Rizal a petition for
the settlement of the intestate estate of Fr. Rodriguez alleging that he died without a
will.
BALANAY, JR VS. MARTINEZ
64 SCRA 452
FACTS: Leodegaria Julian, from Sta. Maria, Ilocos Sur died on February 12, 1973 in
Davao City at the age of 67. She was survived by her husband, Felix Bacanay Sr. and
their 6 legitimate children: Felix Balanay Jr., Avelina, Beatriz, Carolina, Delia, and
Emilia.

On March 12, 1963, Pangilinan and Jacalan filed a petition in CFI Bulacan for the
probate of the will they delivered on March 4, 1963.
Petitioner Rodriguez opposed the probate on the ground that CFI Bulacan did not
have jurisdiction over the matter — relying on Rule 73, Sec. 1 which states that the
Felix Balanay Jr. filed in the lower court a petition for the probate of his mother’s
notarial will, dated Sept 5, 1970, which is written in English. Therein, Leodegaria
Julian declared that among others:
After her husband’s death, her paraphernal lands and all conjugal lands (which
she referred to as “hers”) should be divided and distributed in the manner set

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forth in that part of her will. (she devised and partitioned the conjugal lands as
if they were all owned by her. She disposed of in the will her husband’s ½ share
of the conjugal assets
Felix Balanay Sr and Avelina opposed the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. They insist that Felix Balanay Jr. should
collate certain properties which he had received from the testatrix.
- Felix Jr.’s reply to the opposition had an attachment of an affidavit of Felix
Sr.’s withdrawal of his opposition to the probate.
- Felix Sr. signed “Conformation (sic) of Division and Renunciation of
Hereditary Rights” wherein he renounced his hereditary rights in
Leodegaria’s estate and favor of the 6 children. In the same instrument he
confirmed the agreement, which he and his wife had perfected before her
death, that their conjugal properties would be partitioned in the manner
indicated in her will.
- Avelina contended that the affidavit and “conformation” were void.
- Lower court denied the opposition and gave effect to the affidavit and
conformity if Felix Sr.
Lower court: Will is void. Dismissed the petition for the probate and converted the
testate proceeding into an intestate proceeding. The creditors were notified.
ISSUE: Whether the probate court erred in passig upon the intrinsic validity of the
will before ruling on its allowance or formal validity, and in declaring it void.
RULING:
PROBATE COURT ERRED IN DECLARED THAT THE WILL WAS VOID AND IN
CONVERTING THE TESTATE PROCEEDING INTO AN INTESTATE PROCEEDING
NOTWITHSTANDING THE FACT THAT IT GAVE EFFECT TO THE WIDOWER’S
CONFORMITY TO THE WILL AND TO HIS WAIVER OF HIS HEREDITARY RIGHTS.
Art. 792 provides that he invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to be presumed
that the testator would not have made such other dispositions if the first invalid
disposition had not been made. Where some of the provisions of the will are valid and
other invalid, the valid parts will be upheld if they can be separated form the invalid
without defeating the intention of the testator or interfering with the general
testamentary scheme, or doing injustice to the beneficiaries.
- Two interpretations: (1) will is void because Leodagaria also disposed of
properties which are not her own but are conjugal properties also owned by
Balanay Sr. and thereby preteriring Balanay Sr. ; or (2) will is valid because
Balanay Sr. wavied his share in the conjugal partnership
LOWER COURT ERRED IN NOT PROCEEDING WITH THE PROBATE WILL.
1. The lower court did not cancel its order to proceed with the probate when it
accepted the validity of the Conformity and affidavit of Felix Sr.
2. General rule is that the probate of the will is mandatory. It is the probate
court’s duty to pass upon the formal validity of the will only in cases where the
will on its face is intrinsically void. As aptly stated by Mr. Justice Barredo, "the
very existence of a purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be distributed in the
manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given effect independent of the attitude of the parties
affected thereby."
3. Testacy is favored. An interpretation that will render a testamentary
disposition operative takes precedence over a construction that will nullify a
provision of a will (Arts. 788 and 791 of the CC) Doubts are resolved in favor of
testacy especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate. Intestacy should be avoided
and that the wishes of the testator should prevail that sometimes the language
of the will can be varied for the purpose of giving it effect.
Note: What are those provisions in the will which were alleged to be void? What is the
problem with the provision when the testatrix disposed of all the conjugal lots and
declared that these should be partitioned in the manner that is stated in the will? Why
is testacy favored than intestacy?
The provisions disposing of the conjugal lots is generally void because you cannot
dispose of the properties which do not solely belong to you. There is another
interpretation: since there was a waiver which was executed by the husband, the
provisions were made valid by the court. The 2nd interpretation, which will render the
will valid was adopted by the SC in this case. Such interpretation shall take
preference over the interpretation that will nullify of a provision of a will.
Art. 780. Mixed succession is that effected partly by will and partly by
operation of law.
MIXED SUCCESSION — that effected partly by will and partly by operation of law
In what instances can there be mixed succession?
1. When the will does not dispose of the entire estate. The rest will be disposed in
accordance with law.
2. When there is a will but there are certain portions of the will which are not valid.
- like when the deceased left properties in favor of his lover or kabit; those
provisions in the will are void and the properties will be distributed among the
heirs in accordance with legal succession
UNIVERSAL SUCCESSION — this refers to the inheritance of heirs; persons are
designated to the universality of the estate or to an ideal share/spiritual share/
fractional of the estate (which should be the net of the properties rights and
obligations) ; when that is the case, the person is an heir and his succession is
universal succession
I hereby give to A all my properties. A is an heir.
I hereby give to A 1/4 of my properties. A is an heir.
I hereby give to A 20% of my estate. A is an heir.
Here it cannot be determined with particularity which will be given.
PARTICULAR SUCCESSION — refers to the succession of legatees and devisees who
are given specific properties
legatee — person to whom a particular personal /movable property has been
given
devisee — person to whom a specific immovable /real property has been
given
As to the part of the property transmitted:
COMPULSORY OR FORCED SUCCESSION — referring to the compulsory heirs who are
entitled to receive legitimes
VOLUNTARY SUCCESSION — those who are instituted the free portion of the estate;
they are not compulsory heirs; they can be omitted in the will
CONTRACTUAL SUCCESSION — refers to the donation of future property between
spouses by reason of marriage. Under the law, this shall be governed by the
provisions of testamentary succession and the formalities of wills.
As to LEGAL OR INTESTATE SUCCESSION, which is mentioned in Art. 778, there is no
actual definition given by the law. Although in Art. 960, we may find the list which
enumerates instances when legal or intestate succession takes place.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place
only with respect to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not
happen or is not fulfilled, or if the heir dies before the testator, or repudiates
the inheritance, there being no substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable of succeeding, except in cases
provided in this Code.
Basically, when you say legal or intestate succession, the distribution is by operation
of law. There is no will which takes part in the distribution.
Art. 781. The inheritance of a person includes not only the property
and the transmissible rights and obligations existing at the time of his
death, but also those which have accrued thereto since the opening of
the succession.
HEIR IS ALSO ENTITLED TO THOSE WHICH HAVE ACCRUED TO THE PROPERTY
INHERITED SINCE THE OPENING OF SUCCESSION.
The inheritance consists of the properties rights and obligations which are
transmissible.
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Under Art. 781, the law provides that not only the properties which exists at the time anything from the deceased in the absence of a will. Unless they are also legal heirs
of his death (those which were inherited by an heir at the moment of death of the as the law enumerates those who are legal heirs.
decedent) but also those which have accrued thereto since the opening of the
succession (whatever is added or incorporated in the property inherited such as the So when you are asked:
fruits, the income after the death shall also go to the devisee or legatee.) Are all compulsory heirs legal heirs? YES. (legitimate children and descendants,;
in their absence, legitimate parents and ascendants; surviving spouse;
Illustration: A dies. In his will, he left B a building which was rented by C by virtue of a illegitimate children) They all become legal heirs if there is no will.
contract of lease which is to expire in 2011. A died in 2000. The will was probated
and given effect in 2010. The ownership is deemed to have transmitted to B upon the Are all legal heirs compulsory heirs? NO. The list of legal heirs are longer as the
death of A, thus B is entitled to aside from the building which was devised to him, the ff. are also included: brothers and sisters, nephews and nieces, uncles and aunts.
rent which accrued to the building, as well.
When it comes to the direct line in legal succession, one may inherit. There is no
If there are collectibles on the building, such as rentals this is covered by Art. 793. limitation — although must observe the rule on proximity which provides that the
Again, just remember that prior the death of the testator/decedent, the heir only has nearer relatives exclude those who are farther.
an inchoate right or mere expectancy. He does not have any rights as to the rental or
collection thereof. As to the collateral line, those who are relatives within the 5th civil degree of
consanguinity, they are legal heirs.
RELATION OF ACCESSION AND ART. 781.
Remember in accession, (law on property) the owner of the principal is the owner of
those which are added to or incorporated to the property. You can apply that principle
HEIRS LEGATEES DEVISEES
here, because from the moment of death, the heir already becomes the owner. If
there are accessions such as fruits, and additions to the property, the heir owns the
heirs succeed by general right or
same by being the owner. they succeed by special or particular
universal title to all or fraction of
title
aliquot part
ACCRETION AND ART. 781
Remember also that when a person owns a titled land, the land adjoins a river,
the term heir exists both in
because of the action of the water, gradually the land increased in size — so there’s the term legatees and devisees exist
testamentary and intestate
accretion. The accretion is owned by the owners of the land adjoiniing to the river to only in testamentary succession
succession
which the accretion attached. Under land registration, since the accretion is not
included in the titled land as it is merely an addition, it is not protected by the Torrens the heir if compulsory, succeeds to
System thus making it susceptible to acquisitve prescription. the inheritance regardless of the will legatees and devisees succeed only by
of the decedent; the legitime which is reason of the testator's will
Illustration: preserved by law for compulsory heirs
If the accretion happened during the life of the testator, and only the 10 hectares was
stated as given, is this covered by Art. 781? No. Under Art. 793, it is not covered. for heirs, the quantity of the
inheritance cannot be determined
BUT, if testator dies and the accretion has not happened yet, who owns the the quantity can be easily determined
until after the liquidation of the
accretion? Under Art. 781, it is the heir who owns the accretion. The law says: those properties of the estate
which have accrued to the property since the opening of succession. Since the
accretion happened after the death of the testator, it was already owned by the heir the heir represents the juridical
since ownership transmits upon the death. legatees and devisees do not represent
personality of the deceased, acquiring
the juridical personality of the
his properties, rights and obligations
deceased/estate
(by the fact that they succeed to the
estate, they step into the shoes of the
Art. 782. An heir is a person called to the succession either by decedent; they can now represent the
(as they only acquire certain properties
provision of a will or by operation of law. or rights whereas heirs they succeed to
testator or his estate in cases
Devisees and legatees are persons to whom gifts of real and the properties, rights and obligations)
instituted on behalf of the estate)
personal property are respectively given by virtue of a will.
legatees and devisees succeed to the
DEFINITION OF HEIRS, DEVISEES AND LEGATEES. determinate thing or the amount given
heir — a person called to the succession either by will or by operation of law the heir succeeds to the remainder of
legatee — person to whom a particular personal /movable property has been the estate after the payment of all the (as to voluntary heirs and legatees and
given debts, devises and legacies devisees, there is preference to the
devisee — person to whom a specific immovable /real property has been shares of the latter for the estate is
given (an heir’s share is residual) distributed as follows: (1) legitime; (2)
legacies and devises; (3) those for
We have already discussed universal succession as compared to particular voluntary heirs)
succession. The 1st paragraph of Art. 782 talks about universal succession. The 2nd
paragraph refers to particular succession.
Why do we need to know the distinctions? Because there are two important
In testamentary succession, we have: consequences:
1. compulsory heirs (those entitled to receive legitimes.) (1) Under Art. 793, when you are legatee, you only get the property given
2. voluntary heirs (those are not entitled to receive legitimes but are which exists at the time of the execution of the will; properties acquired
nonetheless instituted in the will) after the execution of the will, as a general rule is not included
The estate in testamentary succession is divided into 2: (1) legitime and (2) the free (2) In preterition under Art. 854, if you are a voluntary heir, and there is
portion. preterition, you are not entitled to receive anything. But if you are a
legitime — reserved to the compulsory heirs legatee or devisee, even if there is preterition, such are still entitled to
free portion — receive the devise or legacy as long as the same is not inofficious.

Can you institute a compulsory heir also as a voluntary heir? Yes.

If the testator or the deceased does not have a will, the compulsory heirs may still be
able to get from the deceased. Although, voluntary heirs are not allowed to get

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Chapter 2
TESTAMENTARY SUCCESSION
Section 1. — Wills
Subsection 1.
Wills in General
Art. 783. 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.
DEFINITION OF A WILL
Art. 783 gives us a definition of wills.
A will is an act of the testator whereby he is permitted to control to a certain
degree the disposition of his estate, and which will take effect after his
death.
Based on this definition, we can see the elemtents and characteristics of wills. Even if
the law says that a will is an act, because under the new civil code, there are two
kinds of wills both of which must be in writing a will can also be defined as an
instrument in which the dispositions of the person effective mortis causa are
embodied.
ELEMENTS AND CHARACTERISTICS OF WILLS : PASSUCFRIDM
(1) Personal
Testamentary power cannot be delegated. Will making is a personal act of
the testator. The provisions in the will must come from the testator. He
cannot tell or ask another person to decide how his properties shall be
distributed. It must be his own decision.
We have 2 kinds of wills:
(1) notarial or ordinary wills — Even if the lawyer drafts the will, the
contents should come from the testator; the lawyer will just arrange it in
such a way that it is better understood; that the legalities are complied
with and the form is observed. (mechanical act of drafting can be
delegated)
(2) holographic wills — Here, of course it should be written by the testator
himself as well as it should mirror the testator’s last wishes as to the
disposition of his properties. (everything must be in the handwriting of
the testator)
Wills are also confidential. For your eyes only. That is why under the NCC,
there is a provision that the notary public before whom the will is
acknowledged is not required to keep a copy of the will; and is also not
required to submit a copy to the clerk of court — despite the fact that under
notarial practice, lawyers are reqired to keep the original when they
acknowledge a document for the purpose of certification of copies in the
future.
In evidence under the Rules of Court, the different kinds of public documents
are enumerated therein — one of which refers to those which are documents
acknowledged before a notary public except wills. So the Rules of Court
expressly exempts a will from the definition. Even if it is notarized or
acknowledged, it does not become a public document. Why? Because wills
are personal and confidential. Otherwise, it would be easy for anyone to go to
the lawyer’s office or clerk of court or archives to get a copy which is
dangerous.
(2) Animus Testandi
When you say “animus testandi,” there must be intent to make a will.
When a person drafts his last will and testament, he should do it with an
understanding that this document will transfer all his properties mentioned
to the persons designated, upon death. In short, he should understand the
legal consequences of his act.
This is the reason why under the NCC, one of the requirements of
testamentary capacity is that the testator should have a sound mind. No one
can have animus testandi without a sound mind.
This is also the reason why juridical persons (i.e. corporations, partnerships)
cannot execute wills. They cannot physical existence, sound mind and thus
cannot have animus testandi.
MONTINOLA VS. HERBOSA
COURT OF APPEALS CASE
FACTS: The subject here is the Mi Ultimo Adios poem of Jose Rizal. There is
a part where he said “To you I give all of my parents, kindred and friends…” It
was argued that such are provisions which constitutes a will.
ISSUE: Is Mi Ultimo Adios a holographic will?
RULING: NO.
1. Rizal’s “Ultimo Adios” is a literary piece of work and it was intended to
be so. If it were intended to be a will, it would have been entitled “Ultima
Voluntad”
2. The third line of the 13th stanza of the poem, expressed a thought of
parting and not bequeathing. Rizal at that time had no known properties
to bequeath. The word “dejo” means “leave” and not “give” as was
wrongly translated by Charles Derbyshire.
3. There is no animus testandi. An instrument which merely expresses a
last wish as a though or advice but does not contain a disposition of
property and was not executed with animus testandi, cannot legally be
considered a will. Such instrument like Rizal’s “Ultimo Adios” may be
considered a in the grammatical sense, but not in the legal or juridical
sense.
4. Assuming arguendo that it was a holographic will, it is void for not
complying the the provisions of the Spanish Code.
(3) Statutory
The privilege to execute a will comes from statute — so it is not an inherent
right, it is not a natural right in a sense that without the statute providing for
succession by a will, dispositions by a will cannot happen.
There are some countries whose citizens do not have the privilege to execute
wills simply because they do not have laws providing for succession.
Because it is just a privilege, the law can actually control/limit testamentary
power.
(4) Solemn
There are solemnities and formalities which must be observed in the
execution of wills.
GR: failure to comply with these formalities would result to the disallowance
of the will; thus making the will void
(5) Unilateral
The testator cannot condition the making of the will upon the consent or act
of another. Whether his will shall be valid should not depend on another
person. The validity solely depends on the testator.
Unlike contracts which are essentially bilateral, this would require the
consent of at least 2 parties. In wills, it is only the consent of the testator
that is required. The validity of such should be dependent upon another
person.
Consequently, there are provisions under the NCC prohibiting bilaterial
dispositions. Like the concept of disposicion captatoria which will be taken
when we go to legacies and devises. It provides that the testator cannot
condition his grant to be dependent upon whether the other person also
makes him a legacy or devise. A testator cannot give a property to a devisee
or legatee on the condition that the latter also make him a devisee or a
legatee. Such disposition is void because it makes the testamentary
disposition bilateral. It converts the will into a contract. Wills should just be
unilateral.
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individual act of the testator. Here 2 persons mutually agreed as to the

VITUG VS. CA
disposition of the joint savings account.
183 SCRA 755

FACTS: This case involves the probate of the 2 wills of the late Dolores
Luchango Vitug. Romarico (husband) filed a motion before the probate court
to sell certain shares of stock and real properties belonging to the estate to (6) Capacity
cover allegedly his advances to the estate amounting to P667,731.66 plus Before a person can execute a will he must have testamentary capacity.
interests which he claimed were personal funds withdrawn from the savings
account in Bank of America. 2 REQUIREMENTS FOR TESTAMENTARY CAPACITY:
1) 18 years old
This was opposed by Rowena Corona (the executrix) on the ground that the 2) sound mind
same funds withdrawn from the Bank of America were conjugal partnership These should be present during the execution of the will. Without these
properties and part of the estate — thus there was no ground for requirements, the will is not valid.
reimbursement.
(7) Freedom from Vitiated Consent
Vitug insisted that the funds are his exclusive property having acquired them The testator must voluntarily and freely execute his will. The presence of
through a survivorship agreement executed with his late wife and the bank. vices of consent: fraud, violence, undue influence, intimidation, will result to
It agreement provides: the disallowance of the will thus void.
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL
TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all Unlike in contracts, the presence of any of the vices of consent only makes it
money now or hereafter deposited by us or any or either of us with the BANK in our voidable. In wills, it is void.
joint savings current account shall be the property of all or both of us and shall be
payable to and collectible or withdrawable by either or any of us during our lifetime,
(8) Revocable
and after the death of either or any of us shall belong to and be the sole property of
the survivor or survivors, and shall be payable to and collectible or withdrawable by The testator can revoke his will at any time for any reason of the absence of
such survivor or survivors. such. This is also why we call it ambulatory because the will is revocable.
We further agree with each other and the BANK that the receipt or check of either,
any or all of us during our lifetime, or the receipt or check of the survivor or survivors, The testator’s right to revoke his will is almost absolute. Why almost
for any payment or withdrawal made for our above-mentioned account shall be valid absolute? There is just one limitation to the testator’s right: sound mind.
and sufficient release and discharge of the BANK for such payment or withdrawal Thus the testator cannot revoke his will when it is proven that he is not of
sound mind. Revocation requires animus revocandi which cannot be attained
ISSUE: Is the survivorship agreement valid? if the testator does not have soundness of mind.
RULING: THE SURVIVORSHIP AGREEMENT IS NOT A CONVEYANCE MORTIS
CAUSA WHICH SHOULD BE EMBODIED IN A WILL. A will has been defined as (9) Individual
“a personal, solemn, revocable and free act by which a capacitated person The will must only be the act of one person.
disposes of his property and rights and declares or complies with duties to
take effect after his death.” In other words, the bequest or device must In contracts, there are at least 2 parties or 1 if he represents different
pertain to the testator. Survivorship agreement does not deliver to one parties.
party’s separate properties in favor of another, but simply, that the account is
jointly owned by them — it is their joint holdings. That is the reason why joint wills are not allowed in the Philippines. Joint
- There is no showing that the funds exclusively belonged to one party,
wills are jointly executed by 2 or more persons.
and hence must be presumed to be conjugal
(10) Disposition of Property
IT IS ALSO NOT A DONATION INTER VIVOS. It was to take effect after the A document which contains dispositions of properties can be considered as
death of the party. a will.

IT IS NOT A DONATION BETWEEN THE SPOUSES. It involved no conveyance If a document does not dispose of property, it is not a will. Just like in the
of a spouse’s own properties to the other. Vitug opened savings account No. case of Montinola vs. Herbosa — Jose Rizal did not dispose his properties in
35342-038, they merely put what rightfully belonged to them in a money- Mi Ultimo Adios.
making venture. They did not dispose of it in favor of the other, which would
have arguably been sanctionable as a prohibited donation. And since the 2 WAYS OF DISPOSING A PROPERTY:
funds were conjugal, it can not be said that one spouse could have pressured 1) direct disposition — where the testator designates certain persons to
the other in placing his or her deposits in the money pool. receive his properties
2) indirect disposition — a document which disinherits an heir is also
THE AGREEMENT IS AN OBLIGATION WITH A TERM. Term being death. Such considered a will.
agreements are permitted by the CC. It is an aleatory contract under Art.
2010 — where one of the parties or both reciprocally bind themselves to give Is a document which contains only a disinheritance considered a will?
or to do something in consideration of what the other shall give or do. The
fulfillment of an aleatory contract depends on either the happening of an
event which is (1) uncertain or (2) which is to occur at an indeterminate MERZA VS. PORRAS
time. A survivorship agreement falls under the event which is uncertain. 93 Phil. 142, May 25, 1953

FACTS: What is involved in this case was the last will and testament and so-
Note: What is the survivorship agreement all about?
called Codicil, of the deceased, Pilar Motealegre. The testatrix was survived by
the husband and collateral relatives, some of whom, along with the husband,
What is involved here is the joint savings account of the spouses — it is not
were disinherited in the Codicil.
not the separate of one spouse which is given to the other. So when you say
will, it purports to deliver your own separate property. The survivorship
Another contention is that the codicil is not executed on the same day as the
agreement is therefore not a will and thus does not need to conform to the
last will and testament and thus was a mere affidavit which does not have the
formalities of wills nor does it have to be probated.
legal force of a will. Codicil in this case embodies the disinheritance of the
husband and some children.
Another reason why the survivorship agreement is not a will is that both the
husband and the wife signed it. There are 2 persons who participated in the
ISSUE #2: What is the nature of the Codicil?
execution of the document. It is a contract actually. A will is a unilateral and
RULING:

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THE CODICIL PARTAKES OF THE NATURE OF A WILL. A will is defined in Art.
667 of the CC of Spain as “the act by which a person disposes of all his
property or a portion of it,” and in Article 783 of the new CC as “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.
CODICIL IS A LEGAL AND EFFECTIVE VEHICLE FOR EXCLUDING HEIRS FROM
TESTATE OR INTESTATE SUCCESSION. Art. 849 of the CC of Spain does not
require that the disinheritance should be accomplished in the same instrument
by which the maker provides the disposition of his or her property after his or
her death. This article merely provides that "disinheritance can be affected
only by a will (any will) in which the legal cause upon which it is based is
expressly stated.”
Note:
This is a case which is reiterated in Seangio vs. CA. The SC said that the
document is a will because it contains disposition of a property. This is what is
called an indirect disposition of property. By designating who is excluded from
his estate, the testator indirectly disposes his properties to the other legal
heirs who are not mentioned. Being a will, that is valid only if it complies with
the formalities of wills.
How about a document containing only an appointment of an executor or
administrator? Legally, it is not a disposition of property. Even if that
appointment is not in the form of a will, it is a valid one.
How about a document containing an acknowledgement of an illegitimate
child? It is not a will as it does not contain any disposition of property. Thus
even if it is not contained in a will, it is considered valid and can be used as a
secondary evidence to prove filiation. (Art. 172)
(11) Mortis Causa
The transfer of property must be effective upon the death of the decedent.
If the transfer of ownership happens during the lifetime of the supposed
testator, that is not a will but a deed of donation which should comply with the
formalities of the latter kind for it to be valid.
So those are the essential elements of a will.
RABADILLA VS. CA
June 29, 2000
<p. 28>
OTHER CASES:
Will is statutory
HERREROS VS. GIL
88 Phil. 260
FACTS: The will and testament of the deceased Carlos Gil was admitted to probate.
Pilar Gil, appellant, contends that (1) the will was not executed in accordance with
law, (2) and that the CFI erred in validating that will.
The parties agreed that the copy of the will is true and correct.
The attestation clause in the will does not state that the alleged testator signed the
will. It merely declares that it was signed by the witnesses.
ISSUE: Is the will valid?
RULING: NO. The probate of the alleged will is denied. Court declared intestate the
estate of the deceased Carlos Gil.
THE FAILURE TO STATE THAT THE TESTATOR SIGNED THE WILL IS A FATAL DEFECT.
The precise purpose of the attestation clause is to certify that the testator signed the
will, this being the most essential element of the clause. Without it there is no
attestation at all. It is said that the court may correct a mere clerical error. This is too
much of a clerical error for it effects the very essence of the clause. Alleged errors
First Exam
may be overlooked or correct only in matters of form which do not affect the
substance of the statement.
Can the court cure alleged deficiencies by inferences, implications and internal
circumstantial evidences?
THE LAST PAR. OF THE WILL CANNOT CURE IN ANY WAY THE FATAL DEFECT OF THE
ATTESTATION CLAUSE OF THE WITNESSES. It would be weird if the testator would
make an attestation clause because it is the function of the witness. The important
thing is that he attests or certifies his own signature, or to be accurate, his signature
certifies irself — one cannot certify his own signature.
While jurisprudence provides that the Court may cure alleged deficiencies, it is only
true when the language is clear. Unlike the attestation clause in the present case,
does not necessitate any correction. In the body of the will the testatrix stated that
she signed in the presence of each and all of the three witnesses. This was
considered as a corroboration, but it was unnecessary.
THE RIGHT TO DISPOSE PROPERTY BY WILL IS NOT NATURAL BUT STATUTORY, AND
STATUTORY REQUIREMENTS SHOULD BE SATISFIED. The right to make a
testamentary disposition of one's property is purely of statutory creation, and is
available only upon the compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the execution of a will are
essential to its validity, and cannot be disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir can be deprived of his inheritance
only by a compliance with this mode. For the purpose of determining whether a will
has been properly executed, the intention of the testator in executing it is entitled to
no consideration. For that purpose only intention of the Legislature, as expressed in
the language of the statute, can be considered by the court, and whether the will as
presented, shows a compliance with the statute.
IN INTERPRETING THE LEGISLATURE’S THOUGHT, COURTS HAVE RIGIDLY OPPOSED
ANY EXCEPTION TENDING TO WEAKEN THE BASIC PRINCIPLE THAT THE
TESTATOR’S WISHES ARE OBSERVED. It is possible, in some or many cases, a
decedent may have thought he had made a will, but the statute says he had not. The
question is not one of his intention, but of what he actually did, or . . . failed to do. . . .
It may happen . . . that . . . wills . . . truly expressing the intertions of the testator are
made without observations of the required forms; and whenever that happens, the
genuine intention is frustrated. . . . The Legislature . . . has taught of it best and has
therefore determined, to run the risk of frustrating (that intention, . . . in preference to
the risk of giving effect to or facilitating the formation of spurious wills, by the
absence of forms. . . . The evil probably to arise by giving to wills made without any
form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious wills
on his effect on his estate.
IT HAS ALWAYS BEEN THE POLICY OF THIS COURT TO SUSTAIN A WILL IF IT IS
LEGALLY POSSIBLE TO DO SO, BUT WE CANNOT BREAK DOWN THE LEGISLATIVE
BARRIERS PROTECTING A MAN'S PROPERTY AFTER DEATH, EVEN IF A SITUATION
MAY BE PRESENTED APPARENTLY MERITORIOUS.
SEANGIO VS. REYES
GR 149753, November 27, 2006
FACTS: On April 7, 1999, Petitioner Seangios filed a petition for the probate of the
holographic will of Segundo. The will is stated as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila
at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko
ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo
sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang
na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na
millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
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At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak
at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi.
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
Alfredo et al moved for the dismissal of the probate proceedings on the ground that
the holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Art. 783 of the CC. The
will only shows an act of disinheritance by the decedent of his eldest son, Alfredo,
and nothing else.
RTC: dismissed the petition for probate proceedings.
ISSUE: Is the will which only contains a disinheritance of an heir, valid?
RULING: Yes. Segundo’s document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo himself. An
intent to dispose mortis causa can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless is an act of disposition in itself. In
other words, the disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the absence of Alfredo.
Art. 784. The making of a will is a strictly personal act; it cannot be left
in whole or in part to the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.
WILL IS STRICTLY A PERSONAL ACT
This is one of the essential elements of a will. It is strictly a personal act. It is only the
testator himself who should execute his will. It cannot be left in whole or in part to
the discretion of a third person. Moreover, it cannot be accomplished through the
instrumentality of an agent or attorney.
The lawyer can still draft the will but the contents have to come from the testator.
The mechanical act of drafting a will can be entrusted to another person or an
attorney.
CASTAÑEDA VS. ALEMANY
3 Phil. 426
FACTS:
Alemany filed this appeal contending that the court erred in holding that all legal
formalities had been complied with in the execution of the will of Doña Juana
Moreno, as the proof shows that it was not written in the presence of under the
express direction of the testatrix as required by Section 618 of the Code of Civil
Procedure.
Castañeda maintains that the grounds upon which a will may be disallowed are
limited to those in Section 634 of the Code of Civil Procedure.
ISSUE: #1: Is the will executed in accordance with law?
RULING: YES.
***THE WILL WAS DULY SIGNED BY DOÑA JUANA IN THE PRESENCE OF 3
WITNESSES WHO IN TURN SIGNED IT AS WITNESSES IN THE PRESENCE OF THE
TESTATRIX. There is nothing in the language of section 618 of the Code of Civil
Procedure which supports the claim of the appellants that the will must be written
by the testator himself or by someone else in his presence and under his express
direction.
Section 618 requires:
(1) that the will be in writing and
First Exam
(2) either that the testator sign it himself or, if he does sign it, that it be
signed by some one in his presence and by his express direction.
Who does the mechanical work of writing the will is a matter of indifference. The
fact, therefore, that in this case the will was typewritten in the office of the
lawyer for the testratrix is of no consequence. The English text of section 618 is
very plain. The mistakes in translation found in the first Spanish edition of the
code have been corrected in the second.
Note:
Take note that this ruling is only applicable to notarial wills. In holographic wills, the
mechanical act of drafting cannot be delegated because the law requires that the
holographic will should be entirely written, dated and signed in the hands of the
testator.
Art. 785. The duration or efficacy of the designation of heirs, devisees
or legatees, or the determination of the portions which they are to
take, when referred to by name, cannot be left to the discretion of a
third person.
A will is personal.
What are the things that CANNOT be delegated by the testator?
1) the duration of the designation of heirs, devisees or legatees
2) the efficacy of the designation of heirs, devisees or legatees
3) determination of the portions which they are to take, when referred to by
name
Art. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to
specified classes or clauses, and also the designation of the persons,
institutions or establishments to which such property or sums of
money are to be given or applied.
ALLOWABLE DELEGATION
Art. 786. Testator may entrust to a third person:
(a) the distribution of specific property or sums of money that he may leave in
general to specified classes or clauses
(b) the authority to designate persons, institutions or establishments to which
such property or sums of money are to be given or applied
Art. 785 Art. 786
(what cannot be delegated) (allowable delegation)
This is not allowed Allowed
the heirs, devisees or legatees are there is no naming here of specific
referred to by name in the will heirs, devisees or legatees
there is no class or clause specified the testator specifies a class or a
clause
what is prohibited is that the delegate the delegate is allowed to determine
cannot determine the portion which is the persons, institutions or
left to named legatees, devisees or establishments
heirs
Q: I hereby give my properties to the top 4 of 3rd year-Manresa batch 2017. Valid?
A: Valid. Falls under Art. 786. There are no specified persons named but a general
specified class. The person delegated therein can delegate to determine the persons,
institutions or establishments to which are properties or sums are to be given or
applied.
Q: I hereby give all my properties to Jennifer, Mel, Lilibeth and Rafael, the top 4 of
3rd year -Manresa and X will determine how much will be the share of each. Valid?
A: Pursuant to Art. 785, this is not valid even if it mentions the class of top 4 of 3rd
year Manresa because there is a specific mention of names. Top 4 here is just a
description which may not be true at all. The names are more important here.
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Q: I hereby give such sums of money as X shall determine to support the top 4 of
3rd year Manresa batch 2017. Valid?
A: There is an attempt to place this under Art. 786 but the law says specific property
or sums of money. There must be specific sum of money. Here, there is no specific
sum of money. It is not valid. It is not within the guidelines provided in Art. 786.
Art. 787. The testator may not make a testamentary disposition in
such manner that another person has to determine whether or not it is
to be operative.
This is another consequence of the characteristic that WILLS ARE PERSONAL TO
THE TESTATOR.
One cannot delegate the determination of the validity of a testamentary disposition.
I hereby give to X my land in Davao City, subject to the approval of A.
INTERPRETATION OF WILLS
Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
There are 2 possible interpretations:
(1) the will is not valid
(2) the will is valid
The interpretation which will make the disposition operative will be adopted pursuant
to the principle that TESTACY IS FAVORED OVER INTESTACY. The will has to be
liberally construed in favor of its validity.
DIZON RIVERA VS. DIZON
33 SCRA 554
FACTS:
Agripina Valdez, a widow, died in Angeles, Pampanga and was survived by 7
compulsory heirs: 6 legitimate children Estela, Tomas, Bernardita, Marina, Angeline
and Josefina and a legitimate granddaughter named Lilia (who is the only heir of the
late Ramon who is the son of Agripina).
Marina was appointed executrix of the testatrix’s estate. The real and personal
properties of the testatrix at the time of her death had a total appraised value of
P1,811,695.60.
In her will, the testatrix "commanded that her property be divided" in accordance with
her testamentary disposition, whereby she devised and bequeathed specific real
properties comprising practically the entire bulk of her estate among her six children
and eight grandchildren. However, some of them got more than the others. Marina
got the most.
Executrix Marina filed her project of partition adjudicating the estate as follows:
1) to those who received less than P129,254.96 (which amounts to a 1/7 share)
as legitime will be given cash and/or properties to complete the amount
2) such cash and/or properties will be taken from Marina and Tomas who
received more than P129k each
3) adjudications made in favor of the grandchildren will be untouched
The oppositors, other siblings submitted their own counter-project of partition where
½ of the estate will be disposed of in accordance with the testamentary disposition
while the other ½ would be divided among them in 7 equal parts of P129,362.11 as
their respective legitimes.
CFI: upheld the executrix Marina’s project of partition. If the oppositors’ proposition
was upheld, the same would result in a distribution of intestacy which is counter to
Art. 791 of the CC.
ISSUE #1: How should the will be interpreted?
RULING:
Articles 788 and 791 of the Civil Code provides that "(I)f a testamentary disposition
admits of different interpretations, in case of doubt, that interpretation by which the
First Exam
disposition is to be operative shall be preferred" and "(T)he words of a will are to
receive an interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva
vs. Juico for violation of these rules of interpretation as well as of Rule 123, section
59 of the old Rules of Court, the Court, speaking through Mr. Justice J.B.L. Reyes,
overturned the lower court's decision and stressed that "the intention and wishes of
the testator, when clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearly appears that his intention was
otherwise."
The testator's wishes and intention constitute the first and principal law in the
matter of testaments and 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
will. Guided and restricted by these fundamental premises, the Court finds for the
appellee.
ISSUE #2: Was there a valid partition in the will?
RULING:
YES.
1. The testatrix’s testamentary disposition was in the nature of a partition of her
estate by will. Thus, , in the third paragraph of her will, after commanding that
upon her death all her obligations as well as the expenses of her last illness and
funeral and the expenses for probate of her last will and for the administration
of her property in accordance with law, be paid, she expressly provided that "it is
my wish and I command that my property be divided" in accordance with the
dispositions immediately thereafter following, whereby she specified each real
property in her estate and designated the particular heir among her seven
compulsory heirs and seven other grandchildren to whom she bequeathed the
same. This was a valid partition of her estate, as contemplated and authorized
in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a
person make a partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs." This right of a testator to partition his estate is subject only
to the right of compulsory heirs to their legitime.
2. Executrix complied with Articles 906 and 907 of the CC which provides for the
safeguard for the right of such compulsory heirs. The 5 oppositors were
adjudicated the properties respectively distributed and assigned to them by the
testatrix in her will, and the differential to complete their respective legitimes of
P129,362.11 each were taken from the cash and/or properties of the executrix-
appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were
favored by the testatrix and received in the partition by will more than their
respective legitimes.
ART 906. Any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the same be
fully satisfied.
ART 907. Testamentary dispositions that impair or diminish the legitime
of the compulsory heirs shall be reduced on petition of the same, insofar
as they may be inofficious or excessive.
THE TESTATRIX’ TESTAMENTARY DISPOSITION WAS IN THE NATURE OF A
PARTITION OF HER ESTATE BY WILL WHICH MUST BE GIVEN FULL VALIDITY AND
EFFECT. Aside from Articles 906 and 907, other codal provisions support the
executrix-appellee's project of partition as approved by the lower court rather than
the counter-project of partition proposed by oppositors-appellants whereby they
would reduce the testamentary disposition or partition made by the testatrix to one-
half and limit the same, which they would consider as mere devises or legacies, to
one-half of the estate as the disposable free portion, and apply the other half of the
estate to payment of the legitimes of the seven compulsory heirs. Oppositors'
proposal would amount substantially to a distribution by intestacy and  pro
tanto  nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would
further run counter to the provisions of Article 1091 of the Civil Code that "(A)
partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him."
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***ISSUE: #3: Whether the contention of the oppositors that the testamentary
dispositions in their favor are in the nature of devises of real property because of the
repeated use of the phrase “I bequeath”
RULING:
NO. The adjudications and assignments in the testratrix’ will of specific properties to
specific heirs cannot be considered all devises. It clearly appears from the whole
context of the will and the disposition of the testatrix of her whole estate that her
clear intention was to partition her whole estate through her will.
THE REPEATED USE OF THE WORDS "I BEQUEATH" IN HER
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. The testatrix' intent that her
testamentary dispositions were by way of adjudications to the beneficiaries as heirs
and not as mere devisees, and that said dispositions were therefore on account of the
respective legitimes of the compulsory heirs is expressly borne out in the fourth
paragraph of her will, immediately following her testamentary adjudications in the
third paragraph in this wise: "FOURTH: I likewise command that in case any of those I
named as my heirs in this testament any of them shall die before I do, his forced heirs
under the law enforced at the time of my death shall inherit the properties I bequeath
to said deceased.
THE TESTAMENTARY DISPOSITIONS OF THE TESTATRIX IN FAVOR OF COMPULSORY
HEIRS DO NOT HAVE TO BE TAKEN ONLY FROM THE FREE PORTION OF THE ESTATE.
Art. 842 of the CC provides that (O)ne who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions of this Code with regard to the
legitime of said heirs." And even going by oppositors' own theory of bequests, the
second paragraph of Article 912 Civil Code covers precisely the case of the executrix-
appellee, who admittedly was favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a legitime may retain the entire
property, provided its value does not exceed that of the disposable portion and of the
share pertaining to him as legitime." For "diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well die intestate."
Fundamentally, of course, the dispositions by the testatrix constituted a partition by
will, which by mandate of Article 1080 of the Civil Code and of the other cited codal
provisions upholding the primacy of the testator's last will and testament, have to be
respected insofar as they do not prejudice the legitime of the other compulsory heirs.
OPPOSITORS CANNOT INVOKE ART. 1063. Here we have 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 the
application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the
legitime of the heirs is here determined and undisputed.
THE RIGHT OF OPPOSITORS WAS MERELY TO DEMAND COMPLETION OF THEIR
LEGITIME UNDER ART. 906. This has been complied with. Thus they can no longer
demand a further share from the remaining portion of the estate, as bequeathed and
partitioned by the testatrix principally to the executrix-appellee.
Note:
What would be the relevance if they will be considered as devisees?
Where would the shares of the legatees and devisees be taken? Free portion. When
we say free portion is consists of 1/2 of the estate of the deceased. The other 1/2
being reserved for legitimes.
Even if the phrase “I bequeath” (which usually refers to legacy) is used, it acquires no
legal significance. It cannot be construed as a devise but an inheritance. It was
clearly the intention of the testatrix that it should be as an inheritance and not merely
as a devise or legacy whose properties can only be taken from the 1/2 free portion.
Such intention was evidenced by the fourth paragraph of her will aforementioned.
We also have discussed the case of Balanay Jr. vs. Martinez, where the testamentary
disposition could be interpreted as void because a spouse cannot dispose of the
conjugal properties. As one has to be the sole owner of the property before one can
dispose of his or her property. On the other hand, it could also be given effect
because the husband executed a waiver thereby waiving his share in the conjugal
properties. Taking that into account, the partition made by the testatrix in the will
could actually be given effect.
In light of the 2 interpretations, and pursuant to Art. 788 (the rule that we should
liberally construe the will in favor of its validity), we construe it in such a way that its
dispositions can be effect.
First Exam
VDA DE VILLANUEVA VS. JUICO
4 SCRA 550
FACTS:
Don Nicolas Villaflor, executed a will in Spanish in his own handwriting,
devising and bequeathing in favor of his wife, Doña Fausta Nepomuceno ½ of
all his real and personal properties and the other ½ to his brother Don Fausto
Villaflor.
Clause 6 (translated by google): By virtue of the powers conferred upon me by the
laws, I institute for my sole and universal heirs all my rights and actions to my
brother Fausto Villaflor and to my wife Da. Fausta Nepomuceno, in order that all my
possessions belonging to me, in equal parts, may depart after my death, excepting
the donations and legacies which, in my most spontaneous will, I do in the following
manner:
Clause 7: The goods, jewels and furniture will go to Fausta as proof of his my love
and affection.
Clause 8: These properties will be enjoyed by Dona Fausta, its use and possession as
long as she lives and does not marry again, otherwise, the properties will become
property of Leonor Villaflor (niece)
There was a clause in the will that in case Don Nicolas and Doña Fausta would
die without any issue, that clauses 6 and 7 would be deemed annulled. Clause
6 provides that all the possessions of Don Nicolas will be divided between
Fausto and Fausta. Clause 7 provides that Fausta will have the goods, jewels
and furniture. Clause 8 provides that Doña Fausta will enjoy the use and
possession of the properties as long as she is alive and does not remarry,
otherwise, the properties of the late Nicolas will become the property of his
niece, Leonor Villaflor.
Don Nicolas Villaflor died without begetting any child with Doña Fausta.
Dona Fausta instituted the settlement of her husband’s estate and was
appointed as the judicial administatrix. Her project of partition was approved
by the probate court wherein she received the use and possession of all the
real and personal properties mentioned and referred to in clause 7th of the will.
The order approving the project of partition had the provision “without
prejudice to the provisions of clause 8 of the will of Nicolas Villaflor.”
Doña Fausta died without marrying again and without any children. Her estate
is now being settled with Juico as the duly appointed judicial administrator.
Leonor Villaflor referred to in clause 8 of the will instituted the present action
against Juico. She contends that upon the widow’s death, she became vested
with the ownership of the real and personal properties bequeathed by Don
Nicolas to clause 7 of his will pursuant to the 8th clause.
Juico contends that the title to the properties became absolutely vested in the
widow upon her death, on the account of the fact that she never remarried.
ISSUE: Does Leonor Villaflor own the properties left by Don Nicolas?
RULING: YES. It was Don Nicolas’s intention to invest his widow with only a
usufruct or life tenure in the properties described in the seventh clause, subject
to the further condition (admitted by the appellee) that if the widow remarried,
her rights would thereupon cease, even during her own lifetime. Ownership did
not vest in her even if she didn’t marry because of the use of the expressions:
"uso y posesion mientras viva" (use and possession while alive) in which the
first half of the phrase "uso y posesion" instead of "dominio" or "propiedad")
reinforces the second ("mientras viva"). The testator plainly did not give his
widow the full ownership of these particular properties, but only the right to
their possession and use (or enjoyment) during her lifetime. This is in contrast
with the remainder of the estate in which she was instituted universal heir
together with the testator's brother (clause 6). Thus, the widow had no right to
retain or dispose of the properties left to her by Don Nicolas and her estate is
accountable to the reversionary legatee (Leonnor) for their return.
THE INTENTION AND WISHES OF THE TESTATOR, WHEN CLEARLY EXPRESSED
IN HIS WILL, CONSTITUTE THE FIXED LAW OF INTERPRETATION, AND ALL
QUESTIONS RAISED AT THE TRIAL MUST BE SETTLED IN ACCORDANCE
THEREWITH. The plain and literal meaning of the testator’s words must be
followed, unless it clearly appears that his intention wasa otherwise.
Speculation as to the motives of the testator in imposing the conditions in
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clause 7 of the will should not be allowed to obscure the clear and
unambiguous meaning of his plain words, which are over the primary source in
ascertaining his intent. It is well to note that if the testator had intended to
impose as sole condition the non-remarriage of his widow, the words "uso y
posesion mientras viva" would have been unnecessary, since the widow could
only remarry during her own lifetime.
The will of the testator, clearly, accurately and constantly expressed in ordering
his last will, is a single, imperative and obligatory law that must be obeyed and
executed by executors, legatees and heirs, today their successors, without that
patent will, which has not Without any doubt, can be substituted, since it is not
the least doubt, can be replaced by any other criterion of one of the interested
parties, nor by the judicial one. (google translate)
As already shown, the testament of Don Nicolas Villaflor clearly and
unmistakably provided that his widow should have the possession and use of
the legacies while alive and did not remarry. It necessarily follows that by the
express provisions of the 8th clause of his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein, upon the widow's death, even if the
widow never remarried in her lifetime. Consequently, the widow had no right to
retain or dispose of the aforesaid properties, and her estate is accountable to
the reversionary legatee for their return, unless they had been lost due to
fortuitous event, or for their value should rights of innocent third parties have
intervened.
DEL ROSARIO VS. DEL ROSARIO
2 Phil. 321
Art. 789. When there is an imperfect description, or when no person or
property exactly answers the description, mistakes, and omissions
must be corrected, if the error appears from the context of the will or
from extrinsic evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon the face of
the will, as to the application of any of its provisions, the testator’s
intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding
such oral declarations.
AMBIGUITIES IN THE WILL
This is another rule. This article refers to ambiguities in the will.
2 KINDS OF AMBIGUITIES IN THE WILL:
1. latent — instrinsic ambiguity
That kind of ambiguity which does not appear in the face of the will. Upon
reading the will, one cannot find anything wrong with it. However, when you
start looking for the persons/properties mentioned, it becomes problematic.
(a) imperfect description of the heir, legatee or devisee
I hereby give my land in Calinan, Davao City to my beautiful friend, Jane.
But Jane in real life is not beautiful.
(b) imperfect description of the property
I hereby give my favorite pen to John made in red Narra. But there’s no
pen in red Narra.
(c) when 2 or more persons meet the description
I hereby give my house and lot in Jacinto St., Davao City to my
bestfriend Juan Dela Cruz. But there 2 friends are named Juan Dela
Cruz.
2. patent — extrinsic ambiguity
An ambiguity that is apparent in the face of the will itself. Just by looking at
the will, you will already know that there is something wrong with it.
I hereby give my cash in Metrobank, Davao City to some of my nieces.
Which nieces though? All of them? But the testator said only some.
KINDS OF EVIDENCES
How can one resolve the ambiguities?
First Exam
Aside from the rules which we already discussed before, we have Art. 789.
Based on Art. 789, there are 2 KINDS OF EVIDENCE that may be used:
(1) intrinsic evidence — evidence found within the 4 corners of the will itself
(i.e. the will, provsions in the will, the attestation clause, acknowledgement
portion)
(2) extrinsic evidence — this is kind of evidence is not found in the will;
something that exists beyond the will (i.e. letters made by the testator
during his lifetime, oral evidence/testimonies)
ORAL DECLARATIONS DISQUALIFIED
What is meant by “if oral evidences may be considered as an extrinsic evidence”?
The testator’s intention is to be ascertained from the words of the
will, taking into consideration the circumstances under which it was
made, excluding such oral declarations.
‣ To cure the defect, or the instrinsic/extrinsic ambiguity, one can use either
intrinsic evidence/extrinsic evidence
‣ Except oral declarations pertaining to the intention of the testator — referring
to the supposed intent of the testator which was professed orally while he is
alive. This is to prevent fraud, perjury and false testimony.
‣ A witness cannot say “Actually the Juan Dela Cruz referred to in the will is me.
Why? Because he told me, that he will give me that property.”
‣ Not acceptable in court because the testator can no longer correct him or
confirm or contest the witness’s declaration.
‣ Can testify about events or things that happened which cannot be
corroborated.
You can also relate this to Sec. 23 of Rule 130
Sec. 23. Disqualification by Reason of Death or Insanity of the Adverse Party.
— Parties or assignor of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other representative of
a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind. (20a)
This is related to Art. 789 because it disqualifies oral evidence pertaining to
transactions entered into by the testator during his lifetime. If you have a claim or
demand against the testator based on oral evidence only the law will not allow that.
Why? Because death has already sealed the lips of the deceased person. He can no
longer contest whatever one may declare.
If one has a promissory note, or a written document that can prove your claim or
demand, then that is allowed.
PAROLE EVIDENCE RULE AND ART. 789
In Evidence, Rule 130, Sec. 9 or the Parole Evidence Rule
Section 9. Evidence of written agreements. — When the terms of an agreement
have been reduced to writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.
However, a party may present evidence to modify, to explain or add to
the terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors
in interest after the execution of the written agreement.
The term “agreement” includes wills.
GR: ORAL EVIDENCE RULE:
If an agreement has already been reduced into writing, the agreement should
contain everything that has been agreed upon. It cannot present any more
oral evidence to vary the tenor of the written agreement. If the price there
stated is P250,000 the witness cannot testify otherwise or say that the price
is P200,000 only. One cannot introduce oral evidence to change the tenor of
the written agreement.
E: The 2nd paragraph of Rule 130, Sec.9.
However, a party may present evidence to modify, to explain or add to the
terms of written agreement if he puts in issue in his pleading:
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(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The will can actually be clarified by oral evidence by way of exception to the parole
evidence rule.
How can we cure using intrinsic evidence?
I hereby give my parcel of land in Jacinto, St., Davao City to my friend Juan
Dela Cruz. (But the testator has no friend named Juan Dela Cruz) In the will
itself, there is a description of Juan Dela Cruz: his bestfriend, when they were
still in lawschool, that Juan Dela Cruz would let him copy, they went on a
vacation together.
If that description which is found in the will itself corresponds to one of the friends,
that is an example of intrinsic evidence. It turns out that the testator was referring to
Joanne Dela Cruz all along. “Juan” was merely a typo in the will.
REMEDY OF REFORMATION IS NOT AVAILABLE IN WILLS (Art. 1366)
In Obligations and Contracts, if the contract does not express the true intent of the
parties, they can resort for the contract to undergo reformation. Can that be resorted
to in wills to correct the ambiguity in the will or in cases where it does not express
the true intent of the testator? No. Art. 1366 provides:
Art. 1366. There shall be no reformation in the following cases:
(1) Simple donations inter vivos wherein no condition is imposed;
(2) Wills;
(3) When the real agreement is void.
Wills are not subject of an action for reformation.
ESTATE OF RIGOR VS RIGOR
89 SCRA 493
FACTS: The late Father Pascual Rigor, died on August 9, 1935 leaving a will executed
on October 29, 1933 which was probated by the CFI of Tarlac. It named as devisees in
the will his sisters: Florencia, belina and Nestora. He also gave a devise to his cousin,
Fortunato. What was controversial about the will was the part where he left to a
nearest male relative who shall take priesthood, 4 lots amounting to around 44
hectares of riceland — this was to be administered by the actual Catholic Priest of the
Roman Catholic Church of Victoria, Tarlac, Philippines or his successors.
13 years later after the approval of the project of the partition, the parish priest of
Victoria filed a petition praying for the appointment of a new administrator, who
should deliver to the church the said ricelands and that the possessors be ordered to
render an accounting of the fruits. This was granted by the court. A new
administrator was appointed. On January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the church as trustee.
The intestate heirs of Fr. Rigor countered with a petition praying that the bequest be
made inoperative and that they be adjudged as the persons entitled to the said
ricelands since no nearest male relative of Fr. Rigor has ever studied for the
priesthood.
RTC: this was granted. This was later reversed in view that the testator had a
grandnephew named Edgardo Cunanan (grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in QC. The administrator
was directed to deliver the ricelands to the parish priest of Victoria as trustee.
CA: Reversed. It held that Father Rigor had created a testamentary trust for his
nearest male relative who would take the holy orders but that such trust could exist
only for twenty years because to enforce it beyond that period would violate "the rule
against perpetuities. It ruled that since no legatee claimed the ricelands within
twenty years after the testator's death, the same should pass to his legal heirs, citing
articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.
ISSUE: Is the bequest inoperative?
RULING:
Parish Priest contends that CA erred in not finding that the testator created a public
charitable trust and in not liberally construing the testamentary provisions so as to
render the trust operative and to prevent intestacy.
Legal heirs argue that the bequest is inoperative because no one among the testator’s
nearest male relatives had studied for the priesthood and not because the trust was a
private charitable trust. According to the legal heirs, that factual finding is binding on
this Court. They point out that appellant priest's change of theory cannot be
countenanced in this appeal .
THE WILL OF THE TESTATOR IS THE CARDINAL RULE IN THE CONSTRUCTION OF
WILLS. It is the life and soul of a will it is “the first greatest rule, the sovereign guide,
the polestar, in giving effect to a will.” One canon in the interpretation of the
testamentary provisions is that "the testator's intention is to be ascertained from the
words of the will taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil
Code of the Philippines).
TESTATOR INTENDED TO DEVISE THE RICELANDS TO HIS NEAREST MALE RELATIVE
WHO WOULD BECOME A PRIEST, who was of the ricelands would accumulate
annually the products thereof, obtaining or getting from the annual produce five
percent thereof for his administration and the fees corresponding to the twenty
masses with prayers that the parish priest would celebrate for each year, depositing
the balance of the income of the devise in the bank in the name of his bequest.
THE PARISH PRIEST OF VICTORIA WOULD ADMINISTER THE RICE LANDS IN 2
SITUATIONS: (1) while there is no nearest male relative of the testator was studying
for priesthood and (2) in case the testator’s nephew became a priest and was
excommunicated.
How long after the testator’s death would it be determined that he had a nephew who
would pursue an ecclesiastical vocation?
THE BEQUEST REFERS TO THE TESTATOR’S NEAREST MALE RELATIVE 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" (Art. 1025,
Civil Code). Testamentary provisions should be reasonably construed. If the
determination was made anytime after Fr. Rigor’s death, it woudl render the
provisions of the will difficult to apply and create uncertainty as to the disposition of
his estate.
If he intended to include indefinitely anyone of his nearest male relatives
born after his death, he could have so specified in his will.
Was it intended for Ramon Quiambao?
He is the testator’s nephew and godchild, son of Fr. Rigor’s sister. Contended by
Beatriz Gamalinda that he was the intended devisee. As his own son although
studying in San Carlos Seminary, did not claim the devise because they kenw that the
devise was intended for Ramon. — SC said that this was hearsay.
AS THE TESTATOR WAS NOT SURVIVED BY AY NEPHEW WHO BECAME A PRIEST,
THE UNAVOIDABLE CONCLUSION IS THAT THE BEQUEST IS INEFFECTUAL AND
INOPERATIVE. The administration of the ricelands by the parish priest of Victoria was
likewise inoperative.
But it is a public charitable trust…
NO. A reading of the testamentary provisions regarding the disputed bequest not
support the view that the parish priest of Victoria was a trustee or a substitute
devisee in the event that the testator was not survived by a nephew who became a
priest. It should be understood that the parish priest of Victoria could become a
trustee only when the testator's nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or, having been ordained a priest,
he was excommunicated. Those two contingencies did not arise, and could not have
arisen in this case because no nephew of the testator manifested any intention to
enter the seminary or ever became a priest.
ART. 888 OF THE CC APPLIES. It provides that if “"the bequest for any reason should
be inoperative, it shall be merged into the estate, except in cases of substitution and
those in which the right of accretion exists”
ART. 960(2) ALSO APPLIES. It provides that legal succession takes place when the
will "does not dispose of all that belongs to the testator." There being no substitution
nor accretion as to the said ricelands the same should be distributed among the
testator's legal heirs. The effect is as if the testator had made no disposition as to the
said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or
that there may be mixed succession. The old rule as to the indivisibility of the
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testator's win is no longer valid. Thus, if a conditional legacy does not take effect,
there will be intestate succession as to the property recovered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
RABADILLA VS. CA
June 29, 2000
FACTS: In the Codicil appended to the Last Will and Testament of testatrix Aleja
Belleza, Dr. Rabadilla who is the predecessor in interest of Petitioner Johnny
Rabadilla was made a devisee of a parcel of Lot 1392 of the Bacolod Cadastre
(511,855 sqm.) The Codicil, was duly probated and admitted before the CFI.
It provided that if Lot 1392 was encumbered, the buyer, lessee or mortgagee shall
have also the obligation to respect and delivery yearly 100 piculs of sugar to Maria
Marlina Coscolluela y Belleza on each month of December, 75 piculs of Export and 25
piculs of Domestic until Maria Marlina shall die. Otherwise, Maria Malina shall
immediately seize this lor from the heir and latter’s heirs and turn the same over to
Aleja’s near descendants. If the heirs and their heirs of Lot 1392 decide to sell, lease,
mortgage, they cannot negotiate with others than my near descendants and Aleja’s
sister.
Lot No. 1392 was transferred to Dr. Jorge Rabadilla and TCT was issued in his name.
He was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia
and Zenaida when Dr. Jorge died in 1983.
In 1989, Maria Marlina brought a complaint against the heirs of Dr. Jorge Rabadilla to
enforce the provisions of the Codicil. She claims that the heirs violated the conditions
of the Codicil in that:
1. Lot 1392 was mortgaged to PNB and Republic Planters Bank in
disregard of the testatrix’s specific instruction to sell, lease or mortgage
only to the near descendants and sister of the testratrix
2. Heirs did not delivery 100 piculs of sugar (75 export and 25 domestic
sugar) to Maria Marlina from 1985 to the filing of the complaint despite
repeated demands
3. The banks failed to comply with the 6th par of the Codicil which provided
that in case of the sale, lease or mortgage of the property, the buyer,
lessee or mortgagee shall likewise have the obligation to deliver 100
piculs of sugar per crop year to Maria Marlina.
She prays that the judgement be rendered ordering the heirs of Dr. Jorge Rabadilla to
return the lot to the surviving heirs of the late Aleja Belleza, the cancellation of the
TCT in the name of Jorge Rabadilla and the issuance of the new TCTs in the names of
the surviving heirs of the late Aleja Belleza.
Feb 1990, defendant heirs were declared in default but on March 28, 1990 the Order
of Default was lifted with respect to Johnny Rabadilla.
The parties in the pre-trial admitted that Maria Marlina and Alan Azurin (who is the
son in law of Johnny Rabadilla and current lessee of the property and acting attorney
in fact of the heirs) arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to delivery 100 piculs of sugar.
1. That for crop year 1988-1989, the annuity will be delivered not later
than January 1989.
2. That the annuity for crop year 1985-86, 1986-87, and 1987-88 will be
complied in cash equivalent of 100 piculs of sugar and taking into
consideration the composite price of sugar during each sugar crop year,
which is in the total amount of P105,000.
3. The P105,000 will be paid or delivered on a staggered cash installment
payable on or before the end of December of every sugar crop year =
P26,250 payable on or before December of every crop year
RTC: Complaint dismissed. The action is prematurely filed. While the non-
performance of the command as mandated exaction from them simply because they
are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does
not warrant the filing of the present complaint.  Maria Marlina being the creditor of
the left estate, she may initiate the intestate proceedings, to establish the heirs of
Jorge Rabadilla and in order to give full meaning and semblance to her claim under
the Codicil.
CA: reversed RTC. The evidence establishes the right of Maria Marlina to the delivery
100 piculs of sugar out of the produce of Lot 1392. The failure to do so since 1985, it
First Exam
is only property to reconvey the title of lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. Maria Marlina must institute separate
proceedings to reopen Aleja Belleza’s estate, secure the appointment of an
administrator and distribute the subject lot to Aleja Belleza’s legal heirs.
ISSUE: as to Art. 776: Are the obligations of the person who has inherited property
extinguished when he dies?
HELD: It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent  and compulsory heirs are
called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory
heirs.  Thus, the petitioner, his mother and sisters, as compulsory heirs of the
instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without
need of further proceedings, and the successional rights were transmitted to them
from the moment of death of the decedent, Dr. Jorge Rabadilla.
UNDER ART. 776 OF THE NCC, INHERITANCE INCLUDES ALL THE PROPERTY, RIGHTS
AND OBLIGATIONS OF A PERSON, NOT EXTINGUISHED BY HIS DEATH. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted
to his forced heirs, at the time of his death. And since obligations not extinguished by
death also form part of the estate of the decedent; corollarily, the obligations
imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be
delivered to the herein private respondent every year. Upon the death of Dr.
Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over
the said property, and they also assumed his (decedent's) obligation to
deliver the fruits of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which
is now being demanded by the latter through the institution of the case at
bar. Therefore, private respondent has a cause of action against petitioner
and the trial court erred in dismissing the complaint below.
Issue #2: Whether Art. 882 on modal institutions is applicable/ whether the testatrix
intended a substitution (Rabadilla is to be substituted by testatrix’s near descendants
should there be noncompliance)
Ruling:
THERE IS NO SUBSTITUTION. The codicil contemplates neither of the two kinds of
substitution. Substitution is the designation by the testator of a person/s to take the
place of the heir or heirs of first instituted. In general, the testator may either:
(1) provide for the designation of another heir to whom the property shall
pass in case the original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple substitution,
or
(2) leave his/her property to one person with the express charge that it be
transmitted subsequently to another, as in a fideicommissary
substitution.
DR. RABADILLA UNDER THE CODICIL IS IN THE NATURE OF A MODAL INSTITUTION
THUS ART. 882 OF THE NCC APPLIES.
Art. 882. The statement of the object of the institution or the application of
the property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for compliance with
the wishes of the testator and for the return of anything he or they may
receive, together with its fruits and interests, if he or they should disregard this
obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to and in conformity
with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in
the law of succession as an institucion sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
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application of the property left by the testator, or (3) the charge imposed by the
testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it
does not affect the efficacy of his rights to the succession. On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but
does not obligate; and the mode obligates but does not suspend. To some extent, it is
similar to a resolutory condition.
THE TESTATRIX INTENDED THE SUBJECT PROPERTY TO BE INHERITED BY DR.
JORGE RABADILLA. The inheritance and the effectivity of his institution as a devisee
is not dependent on the performance of the obligation to delivery 100 piculs of sugar.
It is clear, though, that should the obligation be not complied with, the property shall
be turned over to the testatrix's near descendants. The manner of institution of Dr.
Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes
a charge upon the instituted heir without, however, affecting the efficacy of such
institution. Testamentary dispositions are acts of liberality, an obligation imposed
upon the heir should not be considered a condition unless it clearly appears from the
Will itself that such was the intention. In case of doubt the institution should be
considered as modal and not conditional.
THE NON-PERFORMANCE OF THE SAID OBLIGATION IS WITH THE SANCTION OF
SEIZURE OF THE PROPERTY AND REVERSION THEREOF TO THE TESTATRIX’S NEAR
DESCENDANTS. Since the said obligation is clearly imposed by the testatrix, not only
on the instituted heir but also on his successors-in-interest, the sanction imposed by
the testatrix in case of non-fulfillment of said obligation should equally apply to the
instituted heir and his successors-in-interest.
A Will is a personal, solemn, revocable and free act by which a person disposes of his
property, to take effect after his death. Since the Will expresses the manner in which
a person intends how his properties be disposed, the wishes and desires of the
testator must be strictly followed. Thus, a Will cannot be the subject of a compromise
agreement which would thereby defeat the very purpose of making a Will.
Art. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another
sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
There are 2 kinds of terms that may be used in a will:
(1) ordinary terms — those which are understood in their layman’s terms
(2) technical terms — terms or words that have their own meaning as defined in the
rules or laws of a certain subject, discipline, science and the like. (i.e. adoption)
What is the rule? Ordinary terms are to be given there ordinary meaning, technical
terms are also to be understood in their technical sense. Except when there is a clear
intention to give these words another meaning.
For instance, adoption has a technical meaning but the testator intended to
not use the word in its legal sense.
I hereby give all my properties to my adopted child, A.
However it turns out that A is not legally adopted. Will A get the properties?
Since there is a clear intention and considering that the testator in this case
only finished grade 1, he couldn’t have intended to use “adopted” in the legal
sense. Thus, the disposition can still be given effect. Another meaning was
thus adopted by the testator: that he took in A in his own home to care for,
etc.
I hereby give A my table.
But the testator really meant, the bed. The testator can give it another
meaning based on the intention of the testator.
But if the intention cannot be ascertained, the affected disposition shall be null and
void.
Art. 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy.
1st part of Art. 791: the will must be interpreted as a whole
2nd part of Art. 791: testacy is favored over intestacy
If there are words used in a will.. in order to determine their meaning, do not isolate
the interpretation. That ambiguous provision has to be interpreted in relation to the
other provisions in the will. The will has to be interpreted as a whole. One has to
relate every provision to determine the intention of the testator.
YAMBAO VS. GONZALES
1 SCRA 115
FACTS: On August 10, 1942, Maria Gonzales executed a will bequeathing to
Gonzaleses all of her properties in Sta. Rosa, Laguna. The will was probated in 1948.
Yambao filed an action against Gonzales and Pablo praying that
1. he be appointed and empoyed as tenant during his tenant during his lifetime on
the parcels of land bequeathed to and inherited by them to Gonzales
2. to deliver to him the value of the harvests belonging to him as tenant of said
parcels of land
Provisions of the will invoked by Yambao is as follows:
Dapat in naman malaman ng dalawa kong tagapagmana na sila Maria Pablo
at Angelina Gonzales na sila ay may dapat TUNGKULIN OR GANGPANAN
GAYA ng mga sumusunod:
xxxx
(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng bukid
habang panahon, at and nasabing bukid ay isasailalim ng pamamahala ng
Albasea samantalang ang bukid ay nasa usapin at may utang pa.
Gonzales aver that the provisions of the will relied upon by Yambao is not mandatory.
The determination of who should be the tenant of the land is vested in a special
court; and the present action is not the proper remedy.
ISSUE: Is the provision of the will not mandatory?
RULING:
***THE WILL CONTAINS A CLEAR DIRECTIVE TO EMPLOY YAMBAO. This is from the
words before the word “pahihintulutan,” which say: “Dapat din naman malaman ng
dalawa kong tagapagmana na sila Maria Pablo at Angelina Gonzales na sila ay may
dapat tungkulin o gangpanan gaya ng mga sumusunod.” The words “dapat tungkulin
o gangpanan” mean to do or to carry out as mandate or directive, and having
reference to the word “pahihintulutan,” can convey no other meaning than to impose
a duty upon Gonzaleses. To follow the interpretation given by the trial court would be
to devoid the wish of the testatrix of its real and true meaning.
Note:
The word “pahihintulutan” usually connnotes that it is not mandatory. However, since
it was precedent by the phrase “dapat tungkulin o gangpanan” it should be construed
as being mandatory. The will must be construed as a whole and not separately and
defeat the intent of the testator.
DIZON RIVERA VS. DIZON
33 SCRA 554
The burden of oppositors' contention is that the testamentary dispositions in their
favor are in the nature of devises of real property, citing the testatrix' repeated use of
the words "I bequeath" in her assignment or distribution of her real properties to the
respective heirs. From this erroneous premise, they proceed to the equally erroneous
conclusion that "the legitime of the compulsory heirs passes to them by operation of
law and that the testator can only dispose of the free portion, that is, the remainder
of the estate after deducting the legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature of institution of heirs or of devises or
legacies, have to be taken from the remainder of the testator's estate constituting the
free portion.
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ISSUE:: Whether the contention of the oppositors that the testamentary dispositions
in their favor are in the nature of devises of real property because of the repeated
use of the phrase “I bequeath”
RULING:
NO. The adjudications and assignments in the testratrix’ will of specific properties to
specific heirs cannot be considered all devises. It clearly appears from the whole
context of the will and the disposition of the testatrix of her whole estate that her
clear intention was to partition her whole estate through her will.
The repeated use of the words "I bequeath" in her 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. The
testatrix' intent that her testamentary dispositions were by way of adjudications to
the beneficiaries as heirs and not as mere devisees, and that said dispositions were
therefore on account of the respective legitimes of the compulsory heirs is expressly
borne out in the fourth paragraph of her will, immediately following her testamentary
adjudications in the third paragraph in this wise: "FOURTH: I likewise command that
in case any of those I named as my heirs in this testament any of them shall die
before I do, his forced heirs under the law enforced at the time of my death shall
inherit the properties I bequeath to said deceased.
THE RIGHT OF OPPOSITORS WAS MERELY TO DEMAND COMPLETION OF THEIR
LEGITIME UNDER ART. 906. This has been complied with. Thus they can no longer
demand a further share from the remaining portion of the estate, as bequeathed and
partitioned by the testatrix principally to the executrix-appellee.
Anent the contention that the value of the peso has devalued since the testatrix’ death
in January 1961…
THE VALUE OF THE PESO OR PROPERTY MUST BE RECKONED AS OF THE MOMENT
OF THE DEATH OF THE TESTATRIX AS THE TRANSMISSION OF RIGHTS TO THE
SUCCESSION ARE TRANSMITTED TO THE MOMENT OF DEATH. This is pursuant to
Art. 777 of the CC. Otherwise, estates would never be settled if there were to be a
reevaluation with every subsequent fluctuation in the values of the currency and
properties of the estate.
ROMARICO VITUG VS. CA
GR 82027, March 29, 1990
p. 18.
Art. 792. The invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other dispositions, unless it
is to be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.
If there are valid provisions and if there are invalid provisions, they can be separated.
Just disregard the invalid ones to give effect to the valid ones. Unless it is clear that
the testator intended them to be related that he would not have made the valid
dispositions without the invalid dispositions.
BALANAY JR VS. MARTINEZ
GR L-39247, June 27, 1975
The SC in this case said that assuming for the sake of argument that the provision
relating to the disposition of the conjugal lot is void, it cannot affect the entirety of
the will. If there are valid provisions which can be separated from the invalid
provisions, then the valid provisions must be given effect. As much as possible, we
have to give effect to the wishes of the testator.
Art. 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention.
RULE ON AFTER-ACQUIRED PROPERTIES
This is another concept of after-acquired properties. We discussed the first concept
in Art. 781. Remember Art. 781, the inheritance includes not only the properties
existing at the time of death but also those which accrue thereto since the opening of
succession.
Art. 793, speaks of properties which are acquired after the execution of the will up to
the moment of the death of the testator.
This provision even if it is silent, it actually only applies to legacies and
devices.
ACCRETION AND ART. 793
The law says that the legacy and devise, is limited only to that property which exists
as of the time of the execution of the will. Any other property acquired which might
be added to or incorporated to the property devised or bequeathed will not be
included in the legacy or devise.
In a will made in 2000, testator gave his land in Digos City which comprises of
10 hectares. (devise) After the will was made, by the action of the river, the land
increased in size of about 1 hectare. When the testator died in 2010, that land
in Digos had already 11 hectares. How much can the devisee claim as his
devise? 10 or 11 hectares?
Applying the general rule under Art. 793, the devise is limited only to the property
existing as of the time of the execution of the will. Properties acquired after or added
to the property are not included.
But, in Property, isn't the owner of the property also the owner of the accession? Why
is that the devisee is not the owner of the accretion? Actually, that principle still
applies. The testator is still the owner of the principal and he is also the owner of the
accretion. However, that accretion will not be owned by the devisee because the
devise is limited to that property existing as of the time of the execution of the will.
Remember when the accretion occurred or accrued, the devisee was not yet the
owner of the land, it was the testator. Being the owner of the principal, the testator
owned the acretion. Upon the testator’s death, the accretion will go to his legal heirs
if he had not disposed it to some other persons if he has not also expressly
mentioned in the will that he is also giving that accretion to the devisee, the general
rule applies.
How do we distinguish this from Art. 781?
Art. 781 Art. 793
the devisee became the owner of the the testator was still alive when the
land from the time of death and the accretion happened
accretion happened after the time of
death
Rule on Accession applies to the Rule on Accession applies to the
devisee testator.
the accretion is owned by the devisee the accretion is owned by the testator
unless he specificallly mentions that
the accretions and whatever is added
to the property shall also be given to
the devisee
RULE ON AFTER-ACQUIRED PROPERTIES WILL NOT APPLY TO AN HEIR.
Why does Art. 793 only apply to legacies and devices? Because if you are an heir, you
succeed to the universality of the properties, rights and obligations. Your entitlement
is as to the residual share.
I hereby institute A to 1/4 of my estate. In year 2000, the value of the estate was P10M
and then when he died, it became P40M. How much can A claim as part of his
inheritance? 1/4 of P10M or 1/4 of P40M?
1/4 of P40M. An heir is not limited to a specific property but to the net estate or the
net proprties and rights after the obligations. Necessarily, that would be determined
after the liquidation of the estate at the time of death. Because we cannot liquidate
during the lifetime of the testator. The rule of after-acquired properties will not apply
to an heir.
That is another reason why it is important to distinguish and heir and a legatee or
devisee. As what was illustrated in the case of Dizon.
EXCEPTIONS TO ART. 793.
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1) when it expressly appears by the will that such was the intention (if the testator
wanted to give the after acquired properties as well to the devisee
2) Art. 836, 930 and 935 — when it is republished in a codicil
Art. 794. Every devisee or legacy shall convey all the interest which
the testator could devise or bequeath in the property dispose of,
unless it clearly appears from the will that he intended to convey a
less interest.
ART. 794 ALSO APPLIES TO AN INHERITANCE
Art. 794 mentions only devise or legacy. However by analogy, we can also apply this
to an inheritance.
GR: WHAT THE DEVISEE OR LEGATEE GETS IS THE INTEREST WHICH THE TESTATOR
HAS
Art. 794 simply says that whatever interest the testator has over the property which
is deviced or bequeathed or given as an inheritance, that will also be the interest that
will be inherited or covered by the devise or legacy.
EXCEPTION: WHEN THE TESTOR INTENDED TO GIVE A LESS INTEREST
Unless, the testator intended to convey a less interest.
I hereby give to A my land in Cainan, Davao City. If he is the owner of the entire
land, then the device is of the entire land. If he is just a usufruct or a lessee,
then he cannot give the ownership of the land. But if he is a lessee, he can give
his rights to the lease.
Only to the extent of the interest of the testator over the property covered. He cannot
give as a general rule more than what he possess in that property. Unles it clearly
appears in that will that he intended to convey a less interest. For instance, A is the
owner of the land but he merely gives the legatee or devisee a mere usufruct. Thereby
giving a less interest.
AND WHEN TESTATOR INTENDS TO GIVE A GREATER INTEREST
If the testator intended to give a greater interest, would it be possible? In the Calinan
example, if he is the owner of the 1/2 of the land. If the testator gave the land to B
and he is just 1/2 owner of the land, the device would only be limited to his share of
1/2. He could even give a lesser interest if that is his intention, or he could even give
a greater interest.
Are we saying that if the testator only owns 1/2 of the property in Calinan, he can
actually give the entire land to the devisee? Is that possible? General Rule: No. But
there is an exception under Art. 931 and 930 — if the testator knew that he only
owned 1/2 portion but still in his will gave the entire property then that is valid. So
how can the property be given? In that scenario there is an implied instruction to the
executor or administrator or to the estate that the remaining half shall be acquired
from the owners so that it can be given as well to the devisee.
What if the owners of the remaining half of the property refuse to sell to the estate or
they agreed to sell but demanded an excessive price? What is the rule? When we go
to device or legacy, the obligation now of the estate or executor/ adminsitrator is to
give to the legatee or devisee the just value of the other half. That is in compliance of
the will of the testator which gives the entire property to the devisee/legatee.
Art. 795. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
SOLEMNITIES OF WILLS — EXTRINSIC VALIDITY
This is an important provision. It refers to the extrinsic validity of the will. When you
say extrinsic or formal validity: we are referring to the forms or solemnities which
must be observed in the execution of wills.
How do we know what form to observe? Must follow the law at the time the will was
made.
THERE ARE 2 VIEWPOINTS AS TO THE EXTRINSIC VALIDITY:
(1) viewpoint of time — time it was made
(2) viewpoint of place or country — Art. 16
EXTRINSIC VALIDITY IN THE VIEWPOINT OF TIME
Art. 795 refers to extrinsic validity in the viewpoint of time. Whether the will is valid
extrinsically, depends if it complied with the forms prescribed by the laws in force at
the time of execution of the will.
ENRIQUEZ VS. ABADIA
95 Phil. 627
FACTS: Fr. Abadia, parish priest of Talisay, Cebu, executed a holographic will in 1923.
He died on January 14, 1943, in the municipality of Aloguinsan, Cebu. On October 2,
1946, Andres Enriquez, one of the legatees filed a Petition for its probate. This was
opposed by some of the cousins and nephew who would inherit the estate of the
deceased if he left no will.
CFI: Will is a holographic will. The court admitted to probate the will of Fr Sancho
although at the time of its execution and at the time of testator’s death, holographic
wills were still not permitted by law, in light of the new Civil Code (which permitted
holographic wills) that was effective at the time of the hearing. It applied a liberal
interpretation of the law. [August 1952]
The oppositors appealed.
ISSUE: Is the will valid?
RULING: The will is denied probate.
THE WILL IS VOID.
1. At the time of the execution of the will in 1923 and at the time of death of Fr.
Sancho Abadia in 1943, holographic wills were not permitted.
2. Art. 795 of the CC provides: “The validity of a will as to its form depends upon
the observance of the law in force at the time it is made.” Thus a validity of a
will is to be judged not by the law enforce 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. This ruling has been laid down by this court in the case of In re
Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.
3. Although there is a view that the intention of the testator should be the ruling
and controlling factor and that all adequate remedies and interpretations should
be resorted to in order to carry out said intention, and that new statutes passed
after the execution of the will and after the death of the testator should be
applied to validate wills defectively executed according to thelaw in force at the
time of the exection. We should not forget that from the day of the death of the
testator, if he leaves a will, the title of the legatees and devisees under it become
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.
4. The general rule is that the Legislature can not validate void wills. 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.
Note:
When did the NCC take efect? August 30, 1950
The testator executed his will in 1923. It was admitted to probate in 1952. That time
the NCC had taken effect. Is that will valid? No, Art. 795 provides that the validity of a
will as to its form depends upon the observance of the law in force at the time it is
made.
Obviously, when the will was made, the law did not recognize holographic wills. That
will was void as of the date when it was made and it remains void althroughout
notwithstanding the amendment of the law. So if the will is void at the time of its
execution, it remains void even if at the time of death of the testator, it was made
valid or even when the probate was filed in court, such will is recognized by law.
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ABADA VS. ABAJA
GR 147145, January 31, 2005
FACTS: Abada died in May 1940. His widow Paula Toray died sometime in Sept 1943.
They don't have legitimate children.
Sept 13, 1968 — Alipio Abaja filed with the CFI of Negros Occidental a peition for the
probate of the last will and testament of Abada. Abada allegedly named as his
testamentary heirs his natural children Eulogio Abaja and Rosario Cordova. Alipio is
the son of Eulogio.
Opposition:
- It was void for not having been acknowledged before the notary public
Sept 13, 1968 — Alipio filed another petition before the RTC- Kabankalan for the
probate of the last will and testament of Toray.
- this was opposed by Caponong, Joel Abada et al and Levi Tronco, et al on the
same grounds in the other case
Sept 20, 1968 — Caponong filed a petition before the RTC-Kabankalan for the
issuance in his name of administration of the intestate estate of Abada and Toray.
RTC-Kabankalan: admitted to probate the will of Toray. This order became final and
executory. Belinda Caponong-Noble was designated as the Special Administratrix.
Caponong-Noble’s motion for the dismissal of the probate was denied.
RTC: Ruled only on the issue by the oppositors in their motions to dismiss the
petition for probate, whether the will of Abada has an attestation clause as required
by law.
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
CA: affirmed the Resolution of the RTC-Kabankalan.
ISSUE: Should the will of Abada be admitted to probate?
RULING: YES.
As to the applicable law:
OLD CIVIL CODE SHOULD APPLY. Abada executed his will on June 4, 1932.
SEC. 618 OF THE CODE OF CIVIL PRO, AS AMENDED BY ACT NO. 2645 WHICH
GOVERNS THE FORM OF THE ATTESTATION CLAUSE OF ABADA’S WILL PROVIDES:
Section 618. Requisites of will. No will, except as provided in the preceding
section, shall be valid to pass any estate, real or personal, nor charge or
affect the same, unless it be written in the language or dialect known by the
testator and signed by him, or by the testators name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of each other. The testator or the person requested by him to
write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin, and said pages
shall be numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other.
REQUISITES OF A WILL UNDER THE CODE OF CIVIL PROCEDURE:
1. The will must be written in the language or dialect known by the testator;
2. The will must be signed by the testator, or by the testators name written by
some other person in his presence, and by his express direction;
3. The will must be attested and subscribed by 3 or more credible witnesses in the
presence of the testator and of each other
4. The testator or the
First Exam
WE RULE TO APPLY THE LIBERAL CONSTRUCTION IN THE PROBATE OF ABADAS
WILL. Abadas will clearly shows four signatures: that of Abada and of three other
persons. It is reasonable to conclude that there are three witnesses to the will. The
question on the number of the witnesses is answered by an examination of the will
itself and without the need for presentation of evidence aliunde. The Court explained
the extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do tell us when
and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a probe into the
will, an exploration within its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of
dire results.
The phrase en presencia de nosotros or in our presence coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1)
Abada subscribed to and professed before the three witnesses that the document
was his last will, and (2) Abada signed the will and the left margin of each page of the
will in the presence of these three witnesses.
***Finally, Caponong-Noble alleges that the attestation clause does not expressly state
the circumstances that the witnesses witnessed and signed the will and all its pages in
the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the words of the
statute be made. It is sufficient if from the language employed it can reasonably be
deduced that the attestation clause fulfills what the law expects of it.
The last part of the attestation clause states en testimonio de ello, cada
uno de nosotros lo firmamos en presencia de nosotros y del testador. In English, this
means in its witness, every one of us also signed in our presence and of the testator.
This clearly shows that the attesting witnesses witnessed the signing of the will of
the testator, and that each witness signed the will in the presence of one another and
of the testator.
Note:
The testator made a notarial will in 1932.
What was the opposition all about? It was not acknowledged before the notary public
thus will is void.
When did the testator die? 1940.
What is the issue in this case? Whether the will is valid despite not being
acknowledged by a notary public.
SC: Will is valid.
So if the will is valid, it remains to be so even if there are subsequent amendments to
the law.
IN RE WILL OF RIOSA
39 Phil. 23
FACTS: Riosa made a will in January 1908 wherein he disposed of an estate valued
more than P35,000. His will was executed in confomity to Sec. 618 of the Code of
Civil Procedure.
However when Riosa died on April 17, 1917, another law, Act. 2645 was effective with
respect to wills to which his will did not conform to.
In other words, the will was in writing, signed by the testator, and attested and
subscribed by three credible witnesses in the presence of the testator and of each
other; but was not signed by the testator and the witnesses on the left margin of each
and every page, nor did the attestation state these facts. The new law, therefore, went
into effect after the making of the will and before the death of the testator, without
the testator having left a will that conforms to the new requirements.
ISSUE: Which law applies: the one in effect when the will was made or that which
was in force at the time of death?
RULING:
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3 views of the effect of a change in the statutes prescribing the formalities
necessary to be observed in the execution of a will, when such change is made
between the execution of a will and the death of the testator.
1. THE STATUTES IN FORCE AT THE TESTATOR’S DEATH ARE CONTROLLING, AND
THAT A WILL NOT EXECUTED IN CONFORMITY WITH SUCH STATUTES IS INVALID,
ALTHOUGH ITS EXECUTION WAS SUFFICIENT AT THE TIME IS WAS MADE. This is
because until the death of the testator the paper executed by him, expressing his
wishes, is not a will, but a mere inchoate act which may or may not be a will, the law
in force at the testator's death applies and controls the proof of the will.
➡ SC: The act of bequeathing or devising is something more than inchoate or
ambulatory. In reality, it becomes a completed act when the will is executed
and attested according to the law, although it does not take effect on the
property until a future time.
2. THE VALIDITY OF THE EXECUTION OF A WILL MUST BE TESTED BY THE STATUTES
IN FORCE AT THE TIME OF ITS EXECUTION AND THAT STATUTES SUBSEQUENTLY
ENACTED HAVE NO RETROSPECTIVE EFFECT.
J. SHARSWOOD: RETROSPECTIVE LAWS GENERALLY IF NOT UNIVERSALLY WORK
INJUSTICE, AND OUGHT TO BE SO CONSTRUED ONLY WHEN THE MANDATE OF THE
LEGISLATURE IS IMPERATIVE. When a testator makes a will, formally executed
according to the requirements of the law exsting at the time of its execution, it would
unjustly disappoint his lawful right of disposition to apply to it a rule subsequently
enacted, though before his death.
While it is true that every one is presumed to know the law, the maxim in fact
is inapplicable to such a case; for he would have an equal right to presume that no
new law would affect his past act, and rest satisfied in security on that presumption. .
. . It is true, that every will is ambulatory until the death of the testator, and the
disposition made by it does not actually take effect until then. General words apply to
the property of which the testator dies possessed, and he retains the power of
revocation as long as he lives. The act of bequeathing or devising, however, takes
place when the will is executed, though to go into effect at a future time.
3. STATUTES RELATING TO THE EXECUTION OF WILLS, WHEN THEY INCREASE THE
NECESSARY FORMALITIES, SHOULD BE CONSTRUED SO AS TO NOT IMPAIR THE
VALIDITY OF A WILL ALREADY MADE, AND WHEN THEY LESSEN THE FORMALITIES
REQUIRED, SHOULD BE CONSTRUED SO AS TO AID WILLS DEFECTIVELY EXECUTED
ACCORDING TO THE LAW IN FORCE AT THE TIME OF THEIR MAKING.
It is, of course, a general rule of statutory construction, as this court has said, that
"all statutes are to be construed as having only a prospective operation unless the
purpose and intention of the Legislature to give them a retrospective effect is
expressly declared or is necessarily implied from the language used. In every case of
doubt, the doubt must be resolved against the restrospective effect." Statute law, as
found in the Civil Code, is corroborative; article 3 thereof provides that "laws shall not
have a retroactive effect, unless therein otherwise prescribed." The language of Act
No. 2645 gives no indication of retrospective effect. Such, likewise, has been the
uniform tendency of the Supreme Court of the Philippine Islands on cases having
special application to testamentary succession.
The strongest argument against our accepting the first two rules comes out of
section 634 of the Code of Civil Procedure which, in negative terms, provides that a
will shall be disallowed in either of five cases, the first being "if not executed and
attested as in this Act provided." Act No. 2645 has, of course, become part and parcel
of the Code of Civil Procedure. The will in question is admittedly not executed and
attested as provided by the Code of Civil Procedure as amended. Nevertheless, it is
proper to observe that the general principle in the law of wills inserts itself even
within the provisions of said section 634. Our statute announces a positive rule for
the transference of property which must be complied with as completed act at the
time of the execution, so far as the act of the testator is concerned, as to all
testaments made subsequent to the enactment of Act No. 2645, but is not effective
as to testaments made antecedent to that date.
SECOND RULE WAS ADOPTED. The will of Riosa is valid.
IBARIE VS. PO
February 27, 1953
FACTS: Spouses Leonard Winstanley and Catalina owned the subject parcel of land.
When Leonard died, the entire land was sold by Catalina to Spouses Maria Canoy
who, in turn sold it to Bienvenido Ibarie.
First Exam
On January 17, 1948, Catalina, as guardian of her children, sold 1/2 of the land to
Esperanza Po which portion belongs to the children of the Winstanley Spouses.
Ibarie filed an action to annul a deed of sale in favor of Po, for P1,700, one undivided
half of a parcel of land which was previously sold along with the other half to Ibarie.
Trial court upheld the sale to Esperanza Po.
ISSUE: Is the sale valid?
RULING:
WAS THE SALE OF THE ENTIRE PROPERTY TO IBARIE VALID?
NO. 1/2 OF THE LAND BELONGED TO CATALINA’S CHILDREN. Art. 657 of the old CC
provides: “The rights to the succession of a person are transmitted from the moment
of his death.” This is incorporated in the NCC as article 777. 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. It is immaterial whether a short or long
period of time lapses between the death of the predecessor and the entry into
possession of the property of the inheritance because the right is always deemed to
be retroactive from the moment of death. (Manresa) No formal or judicial declaration
being needed to confirm the children's title, it follows that the first sale was null and
void in so far as it included the children's share.
SALE MADE BY CATALINA IN FAVOR OF PO IS VALID. Considering that it was made
by authority of the competent court (in the special proceedings of guardianship) The
fact it has not been recorded is of no consequence. If registration were necessary,
still the non-registration would not be in favor of Ibarie because it was due to no
other cause than his own opposition.
Ibarie however and/or Canoy spouses can bring an action against Catalina for
damages they may have incurred by reason of the voiding of the sale in their favor.
EXTRINSIC VALIDITY OF THE WILL FROM THE VIEWPOINT OF THE PLACE OR
COUNTRY
FROM THE VIEWPOINT OF COUNTRY, WHICH LAW SHOULD GOVERN THE
FORMALITIES OF HIS WILL? Memorize Art. 17.
Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or property, and those
which have, for their object, public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
Based on the Art. 17, the forms and solemnities of contracts, wills, shall be governed
by the laws of the country in which they are executed. Lex Loci Celebrationis --law of
the place of celebration.
Also consider that the Filipino is principally governed by the laws of the Philippines
but he is allowed to follow the law of the place where he may be.
Art. 815. When a Filipino is in a foreign country, he is authorized to make a
will in any of the forms established by law of the country in which he may be.
Such may be probated in the Philippines.*
What about the foreigner? He has 4 choices
Art. 816. The will of a alien who is abroad produces effect in the Philippines
if made with the formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his country, or in
conformity with those which this Code prescribes.
If an American Citizen executed his will in Japan and died in Germany. He may follow
any of the aforementioned laws there. Such foreigner has 4 choices.
What if the foreigner made his will in the Philippines? Art. 817 provides:
Art. 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed by
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the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines.
If a Chinese citizen executes his will in the Philippines, he can observe his Chinese
law insofar as the extrinsic validity of the will is concerned or again, going back to
Art. 17, the law of the place of celebration -- Philippine law.
For example, under the Old Civil Code, illegitimate children were not
recognized to have successional rights, but under the NCC, illegitimate have
legitmes.
In the NCC, if the illegitimate child is omitted in the will, there is preterition —
in that case when a compulsory heir, in effect, the will becomes void.

Citizenship of Place where testator Law which governs the formal

Testator made a will in 1940. In his will, he did not give anything to his
testator executed his will validity of the will
illegitimate child. Is the will intrinsically valid? It depends on when he will
die. Because the intrinsic validity depends upon the laws in force at the time
Filipino Philippines Philippine law
of death.
If he died before the effectivity of the NCC, then the will would be
Filipino before the diplomatic Philippine law instrinsically valid.
or consular officials of
the RP in a foreign the office of the diplomatic or If he died during the effectivity of the NCC, then the will would be
country consular officials is the extension void.
of the Philippine territory
Why the laws at the time of death? Because these are matters usually relates to the
Filipino abroad 1) Philippine law -- principally transmission of properties, rights and obligations. Whether an heir is disqualified to
2) law of the place of execution receive, or omitted to his legitime, or disinheritance, etc. And pursuant to Art. 776,
(Art. 815) and 777, death opens succession. So it is during death that there is transfer of
properties, rights and obligations. We measure the intrinsic validity from the time of
Alien abroad 1) law of the place of his death.
residence/domicile
2) law of his country
3) law of the place of execution INTRINSIC VALIDITY FROM THE VIEWPOINT OF PLACE OR COUNTRY
(Art. 17 which applies to all)
4) Philippine law (Art. 816)
Art. 16. Real property as well as personal property is subject to the law
Alien Philippines 1) law of the country of which of the country where it is situated.
he is a citizen (Art. 817)
However, intestate and testamentary successions, both with
2) law of the place where the
respect to the order of succession and to the amount of successional
will was executed (Art. 17)
rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under
Another aspect of the validity of a will is the INTRINSIC VALIDITY. consideration, whatever may be the nature of the property and
When you say instrinsic validity, how do you distinguish it from extrinsic? When you
regardless of the country wherein said property may be found.
say intrinsic, you refer to the substance of the will — the legality of the provisions of
the will. (i.e. If this heir is qualified to receive from the testator, is the partition valid, GR: LEX SITUS. Real property as well as personal property is subject to the law of the
is there valid disinheritance, is this person even related to the testator) country where they are situated.

INTRINSIC VALIDITY — can be viewed from 2 points: E: When it comes to intestate and testate succcession, the same is regulated by the
(1) viewpoint of time - upon the law in force at the time of death of the national law of the decedent, both with respect to:
decedent (1) the order of succession
(2) viewpoint of place or country (2) the amount of successional rights
(3) intrinsic validity of testamentary provisions
INTRINSIC VALIIDITY FROM THE VIEWPOINT OF TIME — regardless of the nature of the property and of the country wherein said property
Whether or not the will is intrinsically valid, depends upon the law in force at the time may be found.
of death of the decedent.
With respect to the intrinsic validity of wills, it depends upon the national law of the
Art. 2263. Rights to the inheritance of a person who died, with or without a deceased.
will, before the effectivity of this Code, shall be governed by the Civil Code of For instance, in the Philippines, we have the will of a Texas national. In his
1889, by other previous laws, and by the Rules of Court. The inheritance of will, he did not provide for anything to his legitimate children. Is that will
those who, with or without a will, die after the beginning of the effectivity of valid?
this Code, shall be adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the testamentary provisions shall Let’s discuss Bellis vs. Bellis
be carried out insofar as they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be respected; however,
their amount shall be reduced if in no other manner can every compulsory BELLIS VS. BELLIS
heir be given his full share according to this Code. June 8, 1967

That is the transitory provision of the NCC. According to this provision, whether it is
testate or intestate:
1) if the person died before the effectivity of the NCC — it shall be governed by
the Civil Code of 1889 and other previous laws.
2) if the person died or will die with or without a will after the effectivity of the
NCC — it shall be governed by the NCC.
The provision refers to the losses and rights of inheritance, legitimes, betterments,
legacies, etc. We are referring to the instrinsic validity of the will. The intrinsic
validity of the will shall be governed by the law in force at the time of death of the
decedent.
Facts: Amos Bellis is a citizen of the State of Texas and of the US. He had 5
legitimate children with his first wife whom he divorced. He had 3 legitimate children
with his 2nd wife. He also has 3 illegitimate children.
Amos Bellis executed a will in the Philippines in which he directed that after all taxes,
obligations and expenses of adminitration are paid for, his distributable estate should
be divided in trust in the following order:
(1) $240,000 to his first wife
(2) $120,000 to his 3 illegitimate chldren or P40,000 each
(3) the remainder shall go to his 7 surviving children by his first and second
wives.

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Amos Bellis died on July 8, 1958 in San Antonio, Texas. His will was admitted to
probate in the CFI of Manila on Sept. 15, 1958,
Maria Christina Bells (illegitimate) and Miriam Palma Bells (illegitimate) filed their
respective oppositions to the project of paritition which followed the orders of the
deceased.
The oppositions were overruled. CFI approved the project of partition relying upon
Art. 16 of the CC, it applied the national law of the decedent which is Texas law, which
did not provide for legitimes.
The Appellants Maria and Miriam argue that their case falls under the circumstances
mentioned in the 3rd par o Art. 17 in relation to Art. 16 of the CC.
ISSUE: Which applies: the national law of the decedent or the law of where he is
domiciled?
RULING:
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of
the decedent, in intestate or testamentary successions, with regard to four items: (a)
the order of succession; (b) the amount of successional rights; (e) the intrinsic
validity of the provisions of the will; and (d) the capacity to succeed. They provide
that —
ART. 16. Real property as well as personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary successions, both with respect to
the order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless of the country
wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
But appellants counter with the 3rd par. of art. 17 which states:
Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
They argue that as the exception to Art. 16, par.2 of the CC as aforequoted.
CONTENTION IS NOT CORRECT. Precisely, Congress deleted the phrase,
"notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while
reproducing without substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be applied in testate and
intestate succession. As further indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that capacity to succeed is to be
governed by the national law of the decedent.
WHATEVER PUBLIC POLICY OR GOOD CUSTOMS MAY BE INVOLVED IN OUR SYSTEM
OF LEGITIMES, CONGRESS HAS NOT INTENDED TO EXTEND THE SAME TO THE
SUCCESSION OF FOREIGN NATIONALS. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
Appellents point out that the decedent executed 2 wills: one to govern his Texas estate
and the other the Philippine estate— arguing that he intended Philippine law to govern
his Philippine estate.
ASSUMING THAT THAT IS TRUE, IT WILL NOT ALTER HE LAW, FOR IT HAS BEEN
HELD IN MICIANO VS. BRIMO, A PROVISION IN A FOREIGNER’S WILL TO THE EFFECT
THAT HIS PROPERTIES SHALL BE DISTRIBUTED WITH PHIL. LAW AND NOT WITH
HIS NATIONAL LAW, IS ILLEGAL AND VOID for his national law cannot be ignored in
regard to those matters that Art. .10 — now Art. 16 — of the CC states said national
law should govern.
It is not disputed that Amos Bellis was a citizen of Texas, USA and that
under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
First Exam
Note:
Testator here was a national of Texas and because his country does not provide for
the system of legitimes so it was proper for him to exclude those children from his
estate.
Which is superior: Art 16 or 17? Art. 16. Whatever system we have with respect to
legitimes, Congress did not intend to extend the same insofar as foreign nationals are
concerned. Moreover, specific provisions must prevail over general ones. Art. 17 is a
general provision over Art. 16 is specific. The latter must prevail over the 3rd par of
Art. 17.
Here, because the national law of the decedent did not provide for the system of
legitimes, then the will is valid even if it excluded some of his children.
PCIB VS. ESCOLIN
56 SCRA 266
When it comes to the intrinsic validity of the will, it is the national law of the decedent
which is the governing law. In a case of a foreigner, his law will govern the intrinsic
validity of his will. However, as discussed in PCIB, do we know the foreign law? Do we
take judicial notice of foreign laws?
SC said: the question of what is the foreign law governing the issue is one of fact and
not of law. Foreign laws may not be taken judicial notice of and has to be proven like
any other fact disputed by the parties.
GR: COURTS DO NOT TAKE JUDICIAL NOTICE OF FOREIGN LAWS. They must be
proven like any other fact disputed by the parties.
Examples of proof:
(1) authenticated copy of their civil code
(2) jurisprudence
(3) authorities, experts
EXCEPTION: When the said laws are already within the actual knowledge of the
court. Such as well and generally known or they have been actually been ruled upon
in other cases before it and none of the parties concerned claim that there is another
law governing the same.
MICIANO VS. BRIMO
50 Phil 867
Facts: The judicial administrator of the estate of Joseph G. Brimo filed a scheme of
parition. This was opposed by Andre Brimo, one of the brothers of the deceased. The
opposition was approved.
The opposition was based on the fact that the parition in question puts into effect the
provisions of Joseph Brimo’s will which are not in accordance with the laws of his
Turkish nationality, for which reason they are void being in violation of Art. 10 (now
Art. 16) of the CC which provides:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law of
the person whose succession is in question, whatever may be the nature of
the property or the country in which it may be situated.
Issue #1: Was the approval of the project of parition proper?
Ruling: YES.
1. Oppositor did not prove that said testamentary dispositions are not in
accordance with Turkish laws
2. He did not present any evidence showing what Turkish laws are on the matter,
and in the absence of evidence on such laws, they are presumed to be the same
as those of the Philippines.
3. The refusal to give the oppositor another opportunity to prove such laws is
proper for it is discretionary on the part of the trial court. The oppositor was
granted ample opportunity to introduce competent evidence.
4. There is no evidence in the record that the national law of the testator was
violated in the testamentary dispositions in question which, not being contrary to
our laws in force, must be complied with and executed.
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Issue #2: Is the provision in the will which excludes the oppositor because of his act
of opposing the will for being violative of Turkish law, valid?
“Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality
and, on the other hand, having resided for a considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the property that I now possess, it is my wish
that the distribution of my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons
who fail to comply with this request.”
Ruling: NO.
1. The institution of legatees in this will is conditional and that condition is that the
instituted legatees must respect the testator's will to distribute his property, not
in accordance with the laws of his nationality but in accordance with the laws of
the Philippines. This condition is void being contrary to law under Art. 792 which
provides that
Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide.
2. It expressly ignores the testator’s national law when according to Art. 10 of the
CC, such national law of the testator is the one to govern his testamentary
dispositions.
Thus, the institution of legatees in said will is unconditional and consequently valid
and effective even as to herein oppositor. It results from all this that the second
clause of the will regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary to law. All of the
remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's
national law. Therefore, the orders appealed from are modified and it is directed that
the distribution of this estate be made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and the scheme of partition submitted
by the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
Note: PROCESSUAL PRESUMPTION APPLIED
Since the testator is a Turkish national, the instrinsic validity of his will is governed
by his national law -- Turkish law. In the absence of evidence as to what was the
Turkish law that was alleged, presumption is it is the same as Philippine law under
the doctrine of PROCESSUAL PRESUMPTION.
This is an application of the doctrine of processual presumption. Although, Turkish
laws apply which is his national law, since the oppositor was not able to prove such
law, what was applied was Philippine law.
ANCHETA VS. GUERSAY-DALAYGON
GR 139868, June 8, 2006
Facts: Spouses Guersay were American citizens who have resided in the Philippines
for 30 years. They adopted Kyle Guersey Hill.
On July 29, 1979, Audrey (wife) died, leaving a will. She bequeathed her entire estate
to Richard (husband) who was also designated as the executor. The will was admitted
to probate in Maryland which named James Phillips as executor. The court also
named Atty. Ancheta as ancillary administrator.
In 1981, Richard married Candelaria (respondent) with whom he has 2 children.
Oct 12, 1982 — Audrey's will was also admitted to probate by the CFI. Atty. Ancheta,
as admin of Audrey’s estate, she field an inventory and appraisal of the ff:
(1) Audrey’s conjugal share in real estate with improvements at 28 Pili Ave,
Forbes Park, Makati, MM valued at P764,865
(2) current account in Audrey’s name with a cash balance of P12,417; and
(3) 64,444 shares of stock in A/G interiors Inc. worth P 64,444
July 20, 1984 — Richard died, leaving a will wherein he bequeathed his entire estate
to Candelaria, except for his rights and interests over the A/G Interiors which he left
to Kyle. The will was also admitted to probate in Maryland and Phillips was also
designated as the executor who designated Atty. Quasha as ancillary administrator.
First Exam
Richard’s will was also submitted for probate before the RTC with Atty. Quasha as
ancillary administrator.
In the project of partition concerning Richard’s estate, a project of partition was filed
wherein:
- 2/5 of Richard’s 3/4 undivided interest in the Makati property was allocated to
Respondent
- 3/5 of the Makati property were allocated to Richard’s 3 children
This was opposed by Candelaria on the ground that under the law of the State of
Maryland, “a legacy passes to the legatee the entire interest of the testator in the
property subject of the legacy. Since Richard left his entire estate to respondent,
except for his rights and interests over the A/G Interiors, Inc, shares, then his entire ¾
undivided interest in the Makati property should be given to Candelaria.
RTC: disapproved the project of partition insofar as it affects the Makati property. It
adjudicated Richard’s entire 3/4 undivided interest in the Makati property to
Candelaria.
Before the CA, Candelaria contended that petitioner willfully breached his fiduciary
duty when he disregarded the laws of the State of Maryland on the distribution of
Audrey’s estate in accordance with her will. Respondent argued that since Audrey
devised her entire estate to Richard, then the Makati property should be wholly
adjudicated to him, and not merely ¾ thereof, and since Richard left his entire
estate, except for his rights and interests over the A/G Interiors, Inc., to respondent,
then the entire Makati property should now pertain to respondent.
Atty. Ancheta contended that it is to the best interests of the surviving children that
Philippine law be applied as they would receive their just shares.
CA: Annulled RTC orders. The adjudication of the entire estate of Audrey in favor of
the Richard and the cancellation of the TCT in favor of Richard over the Makati
property was annulled
Issue: What law governs the instrinsic validity of the wills of Audrey and Richard?
Ruling:
THE LAWS OF MARYLAND SHOULD GOVERN THE WILLS OF AUDREY AND RICHARD.
1. IT IS NOT DISPUTED that Audrey Guersey was an American citizen domiciled in
Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625, it
was shown,that at the time of Audrey’s death, she was residing in the Philippines but
is domiciled in Maryland, U.S.A.; her Last Will and Testament dated August 18, 1972
was executed and probated before the Orphan’s Court in Baltimore, Maryland, U.S.A.,
which was duly authenticated and certified by the Register of Wills of Baltimore City
and attested by the Chief Judge of said court; the will was admitted by the Orphan’s
Court of Baltimore City on September 7, 1979; and the will was authenticated by the
Secretary of State of Maryland and the Vice Consul of the Philippine Embassy.
2. BEING A FOREIGN NATIONAL, THE INTRINSIC VALIDITY OF AUDREY’S WILL,
ESPECIALLY WITH REGARD AS TO WHO ARE HER HEIRS IS GOVERNED BY HER
NATIONAL LAW: LAW OF THE STATE OF MARYLAND.
1. This is in congruence to Art. 16 of the CC.
2. Art. 1039 of the CC further provides that “capacity to succeed is governed by the
law of the nation of the decedent.
3. Sec. 4, Rule 77 of the Rules of Court on the Allowance of Will Proved Outside the
Philippines and Administration of Estate thereunder states:
Sec. 4. Estate, how administered.—When a will is thus allowed, the court
shall grant letters testamentary, or letters of administration with the will
annexed, and such letters testamentary or of administration, shall extend to
all the estate of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be disposed of
according to such will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law in cases of estates
in the Philippines belonging to persons who are inhabitants of another state
or country. (Emphasis supplied)
3. WHILE FOREIGN LAWS DO NOT PROVE THEMSELVES IN OUR JURISDICTION AND
OUR COURTS ARE NOT AUTHORIZED TO TAKE JUDICIAL NOTICE OF THEM;
HOWEVER, ANCHETA AS ANCILLARY ADMIN OF AUDREY’S ESTATE, WAS DUTY-
BOUND TO INTRODUCE IN EVIDENCE THE LAW OF THE STATE OF MARYLAND.
Petitioner failed to introduce the Maryland laws before the trial court thus it was
presumed that the former was the same as Philippine laws. Petitioner failed to to
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perform his fiduciary duties. Such failure, prejudiced Candelaria and deprived her of
her full successional rights to the Makati Proeptry.
Court applied ruling of the CA:
In claiming good faith in the performance of his duties and responsibilities,
defendant Alonzo H. Ancheta invokes the principle which presumes the law
of the forum to be the same as the foreign law (Beam vs. Yatco, 82 Phil. 30,
38) in the absence of evidence adduced to prove the latter law (Slade Perkins
vs. Perkins, 57 Phil. 205, 210). In defending his actions in the light of the
foregoing principle, however, it appears that the defendant lost sight of the
fact that his primary responsibility as ancillary administrator was to
distribute the subject estate in accordance with the will of Audrey O’Neill
Guersey. Considering the principle established under Article 16 of the Civil
Code of the Philippines, as well as the citizenship and the avowed domicile
of the decedent, it goes without saying that the defendant was also duty-
bound to prove the pertinent laws of Maryland on the matter.
4. LAW OF MARYLAND STATES (AS OBSERVED BY THE TRIAL COURT)
"all property of a decedent shall be subject to the estate of decedents law,
and upon his death shall pass directly to the personal representative, who
shall hold the legal title for administration and distribution," while Section
4-408 expressly provides that "unless a contrary intent is expressly indicated
in the will, a legacy passes to the legatee the entire interest of the testator in
the property which is the subject of the legacy”.
Applying that in the case, since Audrey devised her entire estate to Richard, and
Richard bequeathed his entire estate to Candelaria, except for his rights and
interests over the A/G Interiors, Inc. which he left to Kyle. When Richard died, the
entire Makati property should have then passed on to Candelaria. This assumes the
proposition that the law of the State of Maryland which allows “a legacy to pass to
the legatee the entire estate of the testator in the property which is the subject of
the legacy," was sufficiently proven in Special Proceeding No. 9625.
5. THE COURT TOOK JUDICIAL NOTICE OF THE LAW OF MARYLAND. It applied the
ruling in Bohanan vs. Bohanan wherein the law of Nevada was (1) presented as
evidence before the trial court and was admitted as such; and (2) it was not disputed
by the parties.
Applying that in the case at bar, since the pertinent law of the state of
Maryland (1) has been brought to record before the CA and the trial court and (2) the
parties and other interested persons do not dispute the existence and the validity of
the law, then Audrey's and Richard’s estate should be distributed accoring to their
respective wills, and not according to the project of partition submitted by Atty.
Ancheta. Thus. THE ENTIRE MAKATI PROPERTY BELONGS TO CANDELARIA.
6. ALL DOUBTS MUST BE RESOLVED IN FAVOR OF THE TESTATOR’S HAVING MEANT
JUST WHAT HE SAID. Thus, Atty. Ancheta’s motive in equitably distributing Audrey's
estate cannot prevail over Audrey’s and Richard’s wishes. Whatever public policy or
good customs may be involved in our system of legitimes, Congress has not intended
to extend the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the decedent's
national Law. Specific provisions must prevail over general ones (Bellis vs. Bellis)
As to whether an American citizen can acquire the Makati property in view of the
Constitutional prohibition.
THE TRANSFER OF THE LAND TO CANDELARIA HAS CURED THE FLAW OF THE
OWNERSHIP OF THE GUERSEYS. Article XII, Sections 7 and 8 of the 1986
Constitution explicitly prohibits non-Filipinos from acquiring or holding title to private
lands or to lands of the public domain, except only by way of legal succession or if
the acquisition was made by a former natural-born citizen. Moreover, since the
Makati property had already passed on to respondent who is a Filipino, then whatever
flaw, if any, that attended the acquisition by the Guerseys of the Makati property is
now inconsequential, as the objective of the constitutional provision to keep our
lands in Filipino hands has been achieved.
Note: PROCESSUAL PRESUMPTION WAS NOT APPLIED.
The SC did not accept the invocation of the doctrine of processual presumption. This
was actually an administrative case filed against the lawyer/administrator.
The action of Atty. Ancheta could not be considered in good faith. Because he was in
a position to know which laws to apply in this particular case. Since he participated
in the proceedings abroad, he cannot simply invoke this doctrine of processual
presumption.
First Exam
TESTATE ESTATE OF SUNTAY
July 31, 1964
FACTS:
May 14, 1934 – Jose B. Suntay, a Filipino citizen and resident of the Philippines, died
in Amoy, Fookien, Republic of China. The value of the estate left by the deceased is
more than P50,000.
He left real and personal properties in the Philippines and a house in Amoy, Fookien
Province, China.
He has children in his first marriage with the late Manuela Cruz: Apolonio,
Concepcion, Angel, Manuel, Federico, Ana, Aurora and Emiliano. He has a child in his
2nd marriage with Natividad Lim Billian (still alive): Silvino.
Intestate proceedings were instituted in the CFI of Bulacan. Letters of administration
were issued to Apolonio Suntay. He was replaced by Federico Suntay when Apolonia
died.
October 15, 1934 – the surviving widow, Natividad filed a petition with the CFI of
Bulacan for the probate of a last will and testament claimed to have been executed
and signed in the Philippines on Nov. 1929 by the late Jose Suntay. This was denied
because of the loss of the said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the evidence to establish the loss of the
said will.
Despite of the deposition of Go Toh who attested that he witnessed the making of the
will, the probate court denied a motion for the continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed the petition.
After WW2, claiming that he had found among the files, records and documents of his
late father a will and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed, recorded and probated in
the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in
the intestate proceedings praying for the probate of the will executed in the
Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N)
CFI of Bulacan disallowed the alleged will and testament executed in Manila in
Novmber 1929 and the alleged last will and testament executed in Kulangsu, Amoy,
China on January 4, 1932, by Jose Suntay.
ISSUE #1: Are Silvino and Natividad estopped to have the alleged will of Jose Suntay
probated?
RULING: NO. There is no merit in the contention that the petitioner Silvino Suntay and
his mother Maria Natividad Lim Billian are estopped from asking for the probate of
the lost will or of the foreign will because of the transfer or assignment of their share
right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment
thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay,
for the validity and legality of such assignments cannot be threshed out in this
proceedings which is concerned only with the probate of the will and testament
executed in the Philippines on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to have been probated in the
municipal district court of Amoy, Fookien province, Republic of China.
ISSUE #2: Has the right of Silvino and Nativided to have the will probated,
prescribed?
RULING: The dismissal of the petition for probate of the will on February 7, 1938 was
no bar to the filing of the petition on June 18, 1947, or before the expiration of 10
years.
ISSUE #3: Was there a will?
RULING:
AS TO THE LOST WILL, Sec. 6, Rule 77 provides: No will shall be proved as a lost or
destroyed will unless the execution and validity of the same be established, and the
will is proved to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the
court, and the certificate must be filed and recorded as other wills are filed and
recorded.
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Those who testified to the provisions to the lost will of Jose Suntay are:
1) Manuel Lopez (attesting witness) – was dead at the time of the hearing of the
alternative petition
2) Go Toh – he attests to the fact that he was one of the witnesses of the will
which consists of 23 pages signed by Jose Suntay at the bottom of each in the
presence of Alberto Barretto, Manuel Lopez and himself; he did not take part in
the drafting; only that Jose told him that the contents thereof are the same as
that one which was in the office of Alberto Barretto; Mrs Suntay had the draft
of the will translated into Chinese and he read the translation; he did not read
the will and compare it to the draft
3) Ana Suntay -- Her father Jose Suntay left a will in the house of Apolonio
Suntay that she saw her brother Apolonio Suntay read the document in her
presence and of Manuel and learned of the adjudication made in the will by her
father of his estate, to wit: one-third to his children, one-third to Silvino and his
mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. ;  she
testifies that she read the part of the will on adjudication to know what was
the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies
that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto
4) Anastacio Teodoro – Go Toh left the will in Anastacio’s office. He attests to the
fact that the will was the same as the draft.
If the will was snatched, after the delivery of Go Toh to Anastacio sometime in January
1948, then the testimony of Ana Suntay that she heard her brother Apolinio Suntay read
the will in September 1934 must not be true.
The legal requirement that the provisions of the lost will must be “clearly and
distinctly proved by at least two credible witnesses” is not present. Credible
witnesses mean competent witnesses and those who testify to facts from or upon
hearsay are neither competent nor credible witnesses.
The testimony of Alberto Barretto corroborates that of Go Toh to the effect that only
one will was signed by Jose Suntay at his office in which Alberto barreto, Manuel
Lopez and Go Toh took part as attesting witnesses. Go Toh testified that he did not
leave the will in the hands of Anastacio Teodoro .
AS TO THE WILL CLAIMED TO HAVE BEEN EXECUTED on January 4, 1931 in Amoy,
China, THE LAW WHICH APPLIES ARE THE FF.:
Rule 78, Sec. 1. Wills proved and allowed in a foreign country, according to the laws
of such country, may be allowed, filed, and recorded by the proper CFI in the
Philippines.
Sec.2. When a copy of such will and the allowance   thereof, duly authenticated, is
filed with a petition for allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will
presented for allowance.
Sec. 3. If it appears at the hearing that the will should be allowed in the Philippines,
the court shall so allow it, and a certificate of its allowance, signed by the Judge, and
attested by the seal of the courts, to which shall be attached a copy of the will, shall
be filed and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be
proved. The law of China on procedure in the probate or allowance of wills must also
be proved. The legal requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no proof on these points.
The unverified answers to the questions propounded by counsel for the appellant to
the Consul General of the Republic of China set forth in Exhibits R-1 and R-2,
objected to by counsel for the appellee, are inadmissible, because apart from the fact
that the office of Consul General does not qualify and make the person who holds it
an expert on the Chinese law on procedure in probate matters, if the same be
admitted, the adverse party would be deprived of his right to confront and cross-
examine the witness. Consuls are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal district court of Amoy were for
the purpose of taking the testimony of two attesting witnesses to the will and that
the order of the municipal district court of Amoy does not purport to probate the will.
In the absence of proof that the municipal district court of Amoy is a probate court
and on the Chinese law of procedure in probate matters, it may be presumed that the
proceedings in the matter of probating or allowing a will in the Chinese courts are the
a deposition or to a perpetuation of testimony, and even if it were so it does not
measure same as those provided for in our laws on the subject. It is a proceedings in
First Exam
rem and for the validity of such proceedings personal notice or by publication or both
to all interested parties must be made. The interested parties in the case were known
to reside in the Philippines. The evidence shows that no such notice was received by
the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n.,
hearing of 24 February 1948). The proceedings had in the municipal district court of
Amoy, China, may be likened to or come up to the standard of such proceedings in
the Philippines for lack of notice to all interested parties and the proceedings were
held at the back of such interested parties.
The order of the municipal district court of Amoy, China which states that the
minutes of the interrogation of the parties who declare that there are no errors, after
said minutes were loudly read and announced actually in the court…. Does not
purport  to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles
followed in the probate and allowance of wills. Consequently, the authenticated
transcript of proceedings held in the municipal district court of Amoy, China, cannot
be deemed and accepted as proceedings leading to the probate or allowance of a will
and, therefore, the will referred to therein cannot be allowed, filed and recorded by a
competent court of this country.
Decision of the CFI is affirmed.
Note:
What do you call that probate proceeding in the Philippines? Re probate.
The will was allegedly already probated in China. Under our jurisdiction, do our courts
automatically recognize such will? No. It is not automatic. It has to undergo another
probate proceeding in the Philippines. That is what we call the re-probate proceeding.
In the re-probate proceeding, what matters should be proven?
However these requisites were not met.
Did the SC apply the doctrine of processual presumption? No.
In re-probate proceeding is governed Rule 78 Sec 2 and 3. It specifically lays down
what should be proven in such proceeding. We are not talking about substantive laws
here. We are talking about procedural laws. We do not have a presumption that the
laws of China are the same as the Rules of Court of the Philippines. Absent proof of
the matters specified by the Rules of Court, the probate shall be denied. Thus, we
cannot apply the rule on or the doctrine processual presumption.
TESTATE ESTATE OF CHRISTENSEN VS. GARCIA
January 31, 1963
Facts: This case involves the will of Edward Christensen who was a citizen of the US
and of the State of California. His will was executed in Manila on March 5, 1951 and
contains the following provisions:
3. I declare that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born in the Philippines about twenty-
eight years ago, and who is now residing at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants
except my above named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not in any
way related to me, nor has she been at any time adopted by me, and who,
from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine
Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid
to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per
month until the principal thereof as well as any interest which may have
accrued thereon, is exhausted..
xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the
said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing
as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.,
all the income from the rest, remainder, and residue of my property and
estate, real, personal and/or mixed, of whatsoever kind or character, and
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wheresoever situated, of which I may be possessed at my death and which
may have come to me from any source whatsoever, during her lifetime: ....
The executor in his final account and project of partition ratified the payment of
P3600 to Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen.
Helen Christensen Garcia filed an opposition to the approval of the project of
partition on the ground that it deprives her of her legitime as an acknowledged
natural child, she having been declared by US in a case an acknowledged natural
child of the deceased.
The legal grounds of opposition are
(a) that the distribution should be governed by the laws of the Philippines, and
(b) that said order of distribution is contrary thereto insofar as it denies to Helen
Christensen, one of two acknowledged natural children, one-half of the estate in
full ownership. In amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen should not be the
internal law of California alone, but the entire law thereof because several foreign
elements are involved, that the forum is the Philippines and even if the case were
decided in California, Section 946 of the California Civil Code, which requires that
the domicile of the decedent should apply, should be applicable. It was also
alleged that Maria Helen Christensen having been declared an acknowledged
natural child of the decedent, she is deemed for all purposes legitimate from the
time of her birth.
CFI: the successional rights and intrinsic validity of the provisions in his will are to be
governed by the law of California, in accordance with which a testator has a right to
dispose of his proeprty in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable.
Issue: Which law should apply?
Ruling:
DECEASED WAS A US CITIZEN AND IS DOMICILED IN CALIFORNIA.
THE LAW THAT GOVERNS THE VALIDITY OF HIS TESTAMENTARY DISPOSITIONS IS
DEFINED IN ART. 16 OF THE CC. The application of this article in the case at bar
requires the determination of the meaning of the term “national law” is used therein.
Since there is no single American law governing the validity of testamentary
provision in the US, the “national law” indicated in Art. 16 above quoted can not,
possibly mean or apply to any general American law. So it can refer to no other than
the private law of the State of California.
THE LAW OF CALIFORNIA PROVIDES: Art. 946 of the Civil Code of California. If there
is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
It is argued that as the deceased is a US citizen, the internal law thereof, which is that
given, should govern the determination of the validity of the testamentary provisions of
Christensen’s will.
Appellant insists that Art. 946 should be applicable, and in accordance therewith and
following the doctrine of the renvoi, the question of the validity of the testamentary
provision in question should be referred back to the law of teh decedent’s domicild
which is the Philippines.
ART. 946 OF THE CALIFORNIA CIVIL CODE IS ITS CONFLICTS OF LAWS RULE. If the
law on succession and the conflict of laws rules of California are to be enforced
jointly, each in its own intended and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State, but Article 946 should apply to
such of its citizens as are not domiciled in California but in other jurisdictions. The
rule laid down of resorting to the law of the domicile in the determination of matters
with foreign element involved is in accord with the general principle of American law
that the domiciliary law should govern in most matters or rights which follow the
person of the owner.
Appellees argue that what Art. 16 of the Civil Code of the Philippines pointed out as the
national law is the internal law of California.
THE CALIFORNIA INTERNAL LAW IS ENFORCED UPON ITS CITIZENS RESIDING
THEREIN AND THE CONFLICT OF LAWS RULES FOR THE CITIZENS DOMICILED
ABROAD. As already explained, the laws of California have prescribed 2 sets of laws
for its citizens, one for residents therein and another for those domiciled in toehr
jurisdictions. If we must enforce the law of California as in comity we are bound to
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of
First Exam
California in accordance with the express mandate thereof and as above explained,
i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those
domiciled abroad.
Appellees argue that the clause “if there is no law to the contrary in the place where the
property is situated” in art. 946 of the California Civil Code refers to Art. 16 of the Civil
Code of the philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased should govern.
THE NATIONAL LAW MENTIONED IN ART. 16 OF THE CC IS THE LAW ON CONFLICT
OF LAWS IN THE CALIFORNIA CIVIL CODE i.e. Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict
of laws rule in California, Article 946, Civil Code, precisely refers back the case, when
a decedent is not domiciled in California, to the law of his domicile, the Philippines in
the case at bar. The court of the domicile can not and should not refer the case back
to California; such action would leave the issue incapable of determination because
the case will then be like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law as directed in the conflict of
laws rule of the state of the decedent, if the question has to be decided, especially as
the application of the internal law of California provides no legitime for children while
the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent recognizing them.
WHAT LAW SHOULD GOVERN? We therefore find that as the domicile of the deceased
Christensen, a citizen of California, is the Philippines, the validity of the provisions of
his will depriving his acknowledged natural child, the appellant, should be governed
by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of
California, not by the internal law of California.
Case remanded to the trial court for partition to be in accordance with Philippine law.
Note:
What is the nature of the California Probate law? It is their internal law.
Which law will apply here? We apply the conflicts of law rule. Where if the testator is
a resident of another jurisidiction, then the law of his domicile will apply. But if we go
back to the Philippine law, Art. 16 provides that it is the national law which will apply.
So are we going back to California? No. After we refer to the California law, we apply
that law. Thus, since it provides that it is the law of the domicile which will prevail
(Art. 946), it is Philippine law which will govern. We do not go back to Art. 16 but we
go ahead and apply our internal law -- the rules on legitime, succession, etc..
If we go back to Art. 16, it will be an endless football game. This is the renvoi
doctrine.
CAYETANO VS. LEONIDAS
May 30, 1984
FACTS: Adoracion Campos died. She was survived by her father, Hermogenes and
sisters. Being the only compulsory heir, Hermogenes executed an Affidavit of
ADjudication whereby he adjudicated unto himself the ownership of the entire estate
of the deceased.
11 months later, Nenita (sister of deceased) filed a petition for the reprobate of the
will of the deceased which was allegedly executed in the US. She alleged that
Adoracion was a US citizen and at the time of her death, was a permanent resident in
Pennsylvania and she died in Manila while residing with her sister, Leveriza. She
made her will pursuant to the laws of Pennsylvania.
- opposed by Hermogenes on the ground that the will is a forgery, that the
intrinsic provisions of the will are null and void and if US laws on intrinsic
provisions are invoked, they cannot be applied because it would be injurious
to him
- the opposition was withdrawn
Cayetano (executrix of now deceased Hermogenes) that since Judge Leonidas
allowed the reprobate of Adoracion’s will, Hermogenes was divested of his legitime
which was reserved by the law for him.
ISSUE: Is the will of Adoracion valid?
RULING:
THE WILL IS VALID.
ADORACION WAS A US CITIZEN AT THE TIME OF HER DEATH. THUS ACCORDING TO
ART. 16 AND 1039 OF THE CC, IT IS HER NATIONAL LAW WHICH PREVAILS — LAW
OF PENNSYLVANIA. With regard to the intrinsic validity of the provisions fo the will, it
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is the national law of the decedent which must apply. Thus in Bellis vs. Bellis the
Court ruled:
It is therefore evident that whatever public policy or good customs may be
involved in our system of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has specifically chosen to
leave, inter alia, the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.
Subsection 2.
Testamentary Capacity and Intent
TESTAMENTARY CAPACITY
How do we distinguish testamentary capacity from testamentary power?
Technically speaking, when we say:
testamentary power — it refers to the power or the privilege granted by the
State to its citizens or individuals to execute wills.
3 THEORIES ON THE MEANING OF 18 YEARS OLD
1. Theory under the Spanish Law
‣ you are considered 18 years old if your 18th birthday has passed or
commenced
‣ One can execute a will one his 18th bday. It doesn’t matter that 18 years
ago, the time of his birth was 16:00PM. As long as the clock strikes OOAM
one can execute wills.
2. Theory under the American Law
‣ It is sufficient that the date preceding one’s birthday has commenced
‣ A person may execute a will on the eve of his birthday
3. Theory under the Civil Code
‣ You are considered 18 years old 4 days prior the 18th bday. Because of the
computation of time under the Civil Code.
‣ Since there are 365 days in a year, 365 x 18 = 6,570 days + 4 days (leap
years). That’s why 4 days before your birthday, you are already considered
18 years of age.
‣ This is relevant in contracts/ RPC/
How about in wills, when do we consider someone to be 18 years old? We follow the
theory of the Spanish Law. This is because the origins of our laws on succession is
traceable to the Spanish law.

testamentary capacity — it refers to the qualification of the testator to

Art. 798. In order to make a will it is essential that the testator be of
execute wills.
sound mind at the time of its execution.
Based on this distinction, can there be testamentary power without testamentary
The other requisite is soundness of mind at the time of the execution of the will.
capacity? Yes. Like in the Philippines, we all have testamentary power because the
NCC provides that we can execute wills. But if we do not the qualifications (i.e. 18
How do we know if a person is of sound mind?
years old and above and sound mind) then if even if you have testamentary power,
you do not have testamentary capacity. You are not qualified.
Can a person suffering under civil interdiction execute a last will and testament? Is
he in the same category as a person of unsound mind?
Are there also instances when there is testamentary capacity but no testamentary
Revised Penal Code provides:
power? Yes. In cases where the State has withheld one's privilege to execute wills.
Art. 34. Civil interdiction shall deprive the offender during the time of his
sentence of the rights of parental authority, or guardianship, either as to the
So if we rely on the technical meanings of testamentary capacity and testamentary
person or property of any ward, of marital authority, of the right to manage
power, it does not mean that if one has testamentary capacity automatically means
his property and of the right to dispose of such property by any act or any
that he has testamentary power and vice versa.
conveyance inter vivos.

But, the NCC uses those 2 terms synonymously. When you say testamentary capacity,
He cannot dispose properties inter vivos. How about wills? Yes, because the latter is
it also refers to testamentary power and vice versa. But if you are asked in the exam
mortis causa. A person suffering from interdiction is still qualified to make a will.
to distinguish, you should distinguish.
Who else are not disqualified?
TESTAMENTARY CAPACITY TESTAMENTARY POWER Spendthrifts
Prodigals
as long as they are 18 years of age and of sound mind.
Qualification of a person to execute a Power granted by the state to a citizen
will. (i.e. whether he is of sound mind to execute a will How about if the testator, 2 days before the execution of the will was not of sound
and he is 18 years old) mind? How about 2 days after? Would that affect his will? It will not. This is
discussed in the case of Dorotheo.
Passive testamentary capacity (to Active testamentary capacity (to make)
receive) may be referred to as plain is often referred to as testamentary
testamentary capacity power DOROTHEO VS. CA
320 SCRA 12 (1999)
Right to make a will provided certain Statutory right to dispose of property
conditions are complied with by acts effective mortis causa Facts: Lourdes who claimed to have taken care of the deceased, Alejandro, filed a
special proceeding for the probate of the latter’s will. This was admitted. However,
Jose and Vicente (legitimate children of Alejandro) filed a motion to declare the will
intrinsically void on the ground that the Alejandro was not of sound mind when he
executed the will. This was granted. A writ of execution was issued by teh lower
Art. 796. All persons who not expressly prohibited by law may make a court. The decision dismissing the petition became final and executory.
will.
Issue: Can a will already declared intrinsically void be given effect?
GR: All persons may make a will as long as he/she is not expressly prohibited by law.
Ruling: NO. The matters of due execution of the will and capacity of the testator
When we refer to persons, again we mean natural persons. Because a
acquired the character of res judicata and cannot again be brought into question, all
juridical person cannot have animus testandi.
juridical questions in connection therewith being once and forever closed. Such final
order makes the will conclusive against the whole world as to its extrinsic validity
2 QUALIIFICATIONS OF A TESTATOR:
and due execution.
(1) at least 18 years old
(2) sound mind
MATTERS DISCUSSED DURING PROBATE: (1) whether the will is indeed the
decedent’s last will and testament; (2) whether it complied with the prescribed
formalities for the execution of wills; (3) the testamentary capacity of the testator;
Art. 797. Persons of either sex under eighteen years of age cannot
(4) and the due execution of the last will and testament.
make a will.

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DUE EXECUTION includes the determination of whether the testator was of sound
and disposing mind at the time of ties execution, that he had freely executed the will
and was not acting under duress, fraud, menace and undue influence and that the will
is genuine and not a forgery, that he was of proper testamentary age and that he is a
person not expressly prohibited by law from making a will.
QUESTIONS REGARDING A WILL’S INTRINSIC VALIDITY MAY BE STILL RAISED
AFTER THE WILL HAS BEEN AUTHENTICATED. Thus, it does not necessarily follow
that a will which is extrinsically valid 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 or rightful inheritance according to the laws on
succession, the unlawful provisions/dispositions cannot be given effect.
Note:
As long as the testator was of sound mind at the time of the execution, the will is
valid.
Art. 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning facilities, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary
act.
1st paragraph:
- negative definition of testamentary capacity
- remember: it is not necessary that the testator be in full possession of his
reasoning faculties or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other causes
- a person does not need a perfectly balanced mind to be considered of sound
mind
2nd paragraph:
- positive definition
- when asked whether the testator is of sound mind enumerate the essential
requisites hereafter
- ESSENTIAL REQUISITES:
(1) testator must know the nature of the estate to be disposed of
‣ must have a sufficient recollection of his properties and
comprehend their kind character and quality in general
‣ even if the testator is at times forgetful but in general he knows he
has lands in Davao City, he has cash in bank (even if he does not
know how much exactly his money is)
(2) testator must know the proper objects of his bounty
‣ he must be aware of such persons who would naturally have a claim
upon him (i.e. children, wife)
(3) testator must know the character of the testamentary act
‣ must understand that the document he is executing is the last will
and testament and that the effect of such is that the properties
stated therein will be inherited by the heirs/devises/legatees
To be considered unsound mind is not necessary that the person must be totally
insane. As long as he is not able to comply with the all the requisites of the 2nd
paragraph of Art. 799, he is of unsound mind.
In that case where the testator had complete senile dementia — he forgot his
children, spouse — he couldn’t not be possibly be aware of the proper objects of his
bounty. So he is not qualified under that situation. Even if he is not insane but in a
coma — how can he possibly execute a will in that situation?
Based on the cases:
NEYRA VS. NEYRA
76 Phil. 333
Facts: Trinidad filed a complaint against Encarnacion for the recovery of 1/2 portion
of the property left by their father, Severo. Trinidad was able to get a favorable
judgement but the court ordered her to pay Encarnacion P1000 for money spent.
First Exam
Trinidad appealed to the decision. This was dismissed because of an agreement or
compromise entered into by the sisters on Nov 3, 1942.
2 years later, Encarnacion died of Addison’s disease. Her heirs filed a motion for the
reconsideration of the judgement saying that the compromise agreement entered
into by the sisters could not have been understood by Encarnacion because she was
already at the threshold of death. In fact she died the day after the execution of the
agreement. If it had been signed at all by Encarnacion, her thumbmark must have
been affixed by Trinidad’s attorney, against Encarnacion’s will. When the agreement
was filed on Nov. 4, 1942, Encarnacion was already dead.
Issue: Is the compromise agreeement and will valid?
Ruling:
THE MENTAL FACULTIES OF PERSONS SUFFERING FROM ADDISON’S DISEASE
REMAIN UNIMPAIRED. Because of the sleep they enjoy, they necessarily receive the
benefit of physical and mental rest. And that like patients suffering from tuberculosis,
insomnia or diabetes, they preserve their mental faculties until the moments of their
death. The logical conclusion is that Encarnacion was of sound mind and possessed
the necessary testamentary and menatl capacity at the time of the execution of the
agreement and will dated Nov 3, 1942.
- Encarnacion on Oct 31, 1942 had confession, mass in her house, reconciled
with Trinidad
- the sisters agreed to have the case dismissed on the condition that the
property involved should be givene xclusively to Trinidad and that Trinidad
should waive her share in the rents collected.
- the sisters agreed to send for Atty. Panis to prepare the document which will
embody their agreement
- the agreement was read to Encarnacion in a slow and loud voice in the
presence of Fr. Garcia, Dr. Abad and Dr. Aldecoa, Trinidad ad others
- Encarnacion asked for the pad and the 2 docuemnts and with the help of the
son of Trinidad, placed her thumbmark at the foot of each one of the 2
documents, in duplicate, on her bed in the sala, in the presence of the
attesting witnesses
Note:
What does Addision’s do the person? The kind of disease does not affect the mind in
such a way that it will make it unable to execute a will.
A person of addison’s disease or sleeping sickness is still considered of sound mind
because what is important is that he is able to meet the 3 requisites:
(1) testator must know the nature of the estate to be disposed of
(2) testator must know the proper objects of his bounty
(3) testator must know the character of the testamentary act
BAGTAS VS. PAGUIO
22 Phil. 227
Facts: The probate of the will of Pioquinto Paguio was opposed on the ground that it
was not executed in accordance ot the formalities and requirments of the law and the
testator was not in the full enjoyment and use of his mental faculties and was
without the mental capacity necessary to execute a valid will.
Record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years
prior to the time of his death suffered from a paralysis of the left side of his body;
that a few years prior to his death his hearing became impaired and that he lost the
power of speech. Owing to the paralysis of certain muscles his head fell to one side,
and saliva ran from his mouth. He retained the use of his right hand, however, and
was able to write fairly well. Through the medium of signs he was able to indicate his
wishes to his wife and to other members of his family.
Pioquinto, wrote out on pieces of paper notes and items relating to the disposition of
his property and these notes were delivered to Señor Marco who transcribed them
and put them in form. The witnesses testify that the pieces of paper upon which the
notes were written are delivered to attorney by the testator; that the attorney read
them to the testator asking if they were his testamentary dispositions; that the
testator assented each time with an affirmative movement of his head; that after the
will as a whole had been thus written by the attorney, it was read in a loud voice in the
presence of the testator and the witnesses; that Señor Marco gave the document to
the testator; that the latter, after looking over it, signed it in the presence of the four
subscribing witnesses; and that they in turn signed it in the presence of the testator
and each other.
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SHE WAS AWARE OF THE NATURE OF HER ESTATE TO BE DISPOSED OF, THE
Issue: Was Pioquinto of sound mind at the time he executed his will? PROPER OBJECTS OF HER BOUNTY AND THE CHARACTER OF THE TESTAMENTARY
Ruling: YES ACT. A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the
THE PRESUMPTION IN FAVOR OF THE MENTAL CAPACITY OF THE TESTATOR WAS document she executed. She specially requested that the customs of her faith be
NOT OVERCOME. Since the testator here was never been adjudged insane by a court observed upon her death. She was well aware of how she acquired the properties
of competent jurisdiction, this presumption continues.It is therefore incumbent upon from her parents and the properties she is bequeathing to LORENZO, to his wife
the opponents to overcome this legal presumption by proper evidence. This we think CORAZON and to his two (2) children. A third child was born after the execution of the
they have failed to do. The law does not require that a person shall continue in the will and was not included therein as devisee.
full enjoyment and use of his pristine physical and mental powers in order to execute
a valid will. If such were the legal standard, few indeed would be the number of wills Note:
that could meet such exacting requirements. The authorities, both medical and legal, As long as the person is able to satisfy the 3 requisites of the 2nd paragraph of Art.
are universal in statement that the question of mental capacity is one of degree, and 799, he is of sound mind.
that there are many gradations from the highest degree of mental soundness to the
lowest conditions of diseased mentality which are denominated as insanity and To be considered of unsound mind, it is not necessary that the person must be totally
idiocy. insane. As long as he is not able to comply with all the requisities he is of unsound
mind.
The statements of the witnesses to the execution of the will and statements of the i.e. complete senile dementia, in a coma
conduct of the testator at that time all indicate that he unquestionably had mental
capacity and that he exercised it on this occasion. At the time of the execution of the
will it does not appear that his conduct was irrational in any particular. He seems to
SOUND MIND
have comprehended clearly what the nature of the business was in which he was
engaged. The evidence show that the writing and execution of the will occupied a
Torres vs. Lopez ‣ Senile Dementia, when it is not complete is not
period several hours and that the testator was present during all this time, taking an
indicative of unsound mind
active part in all the proceedings. Again, the will in the case at bar is perfectly
‣ Senile dementia usually called childishness has
reasonable and its dispositions are those of a rational person.
various forms and stages. To constitute complete
senile dementia there must be such failure of the
Note:
mind as to deprive the testator of intelligent
action,. In the first stages of the diseases, a
How was he able to execute his will? Could he still speak? How did he communicate?
person may possess reason and have will power.
He made signs he was able to indicate his wishes.
(27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's
Medical Jurisprudence, vol. I. pp. 791 et seq.;
Even if the testator suffered from paralysis (could not move a part of his body.)
Schouler on Wills, vol. I, pp. 145 et seq.)
Insofar as soundness of mind is concerned he would still qualify under 799.
‣ The mere fact that she was under guardianship is
not conclusive as to the condition of the person
‣ Rule concering the nature and rationality of the
BALTAZAR VS. LAXA will
GR 174489, April 11, 2012 1. Is the will simply or complicated?
2. Is it natural or unnatural?
Facts: Pacencia made her will when she was 78 years old. It was entitled Tauli Nang
Bilin o Testamento Miss Pacencia Regala in the Pampango dialect on Sept 13, 1981. Avelino vs. Dela Cruz ‣ Blindness, because this is in fact recognized under
The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), Art. 808 under the proper conditions
was read to Paciencia twice. After which, Paciencia expressed in the presence of the ‣ No presumption of incapacity can arise from the
instrumental witnesses that the document is her last will and testament. She mere fact that he was blind
thereafter affixed her signature at the end of the said document on page 3 and then ‣ He must comply with Art. 808, though
on the left margin of pages 1, 2, and 4.
Caguioa vs. Calderon ‣ Insomnia, in view of the positive and direct
The will was admitted for probate. Antonio Baltazar filed an opposition averring that testimonies of the witnesses, the testator was
the properties subject of the Will belong to Nicomeda Ragala Mangalindan, his mentally capacitated
predecessor-in-interest, hence Pacencia had no right to bequeath them to Lorenzo.
Later argued that Pacencia was mentally incapacble to make a will. Samson vs. Corrales Tan ‣ Even if the testator was alleged to be in a coma
several days prior to the making of the will. This
Rosie testified that Pacencia was referred to as magulyan or forgetful because she was because there were testimonies that there
would sometimes leave her wallet in the kitchen then start looking for it moments were times when the testator was awake and had
later. She was just based on her personal assessment. lucid intervals
‣ Mere professional speculation cannot prevail over
Antonio testified that Pacencia thought that the documents pertained to a lease of the positive statements of 5 credible witnesses
one of her rice lands and it was he who explained that the documents were actually a whose testimonies are not unreasonable
SPA to sell the fishpond and other properties upon her departure for the US. Then
Pacencia said “WHy will I never return, why will I sell all my properties? Who is Bagtas vs. Paguio ‣ Paralysis and loss of speech, because one can still
Lorenzo? Is he only [son] of God? I have other relatives [who should] benefit from my comply with the requisites unde rArt. 799
properties. Why should I die already?” ‣ Said requisites refer only to state of mind and not
to physical infirmities
Issue: Was Pacencia of sound mind when she executed her will? ‣ Mere weakenss of mind and body, induced by age
Ruling: BALTAZAR FAILED TO OVERCOME THE PRESUMPTION IN FAVOR OF THE and disease do not render a person incapable of
MENTAL CAPACITY OF THE TESTATOR. Forgetfulness does not mean that a person is making a will
not of sound mind. The burden of proof rests upon the person alleging that the
testator is of unsound mind. There is no substantial evidence, medical or otherwise Hernaez vs. Hernaez ‣ Old Age: that the testator is very old does not
that would show that Pacencia was of unsound mind at the time of the execution of overcome the presumption in favor of the mental
the will. The testimony of the subscribing witnesses to a will concerning the capacity of the testator
testator’s mental condition is entitled to great weight where they are truthful and
intelligent. There was no showing that Pacencia was publicly known to be insane 1
month or less before making the will thus the presumption continues.

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SOUND MIND UNSOUND MIND

Neyra vs. Neyra ‣ Addison’s disease (sleeping sickness) because (1) Excessive drunkenness or drug addiction
people who are afflicted with such do get a good (2) Person in comatose
sleep and the mind is well rested (3) Undue Influence, unless
‣ Even if the hand is guided in signing the will is not (a) There has been initial lack of
indicative that the testator was mentally testamentary capacity
incapacitated (b) If from the day of execution of the will
until the death of the testator, his mental
Alsua-Betts vs. CA ‣ Mere weakness of mind or partial imbecility from condition is such that he cannot judge
disease of body or from age does not render a the propriety of revoking the will; and
person incapable of making a will. (c) Where the alleged testator harbors the
belief that he had not executed the will in
Sancho vs. Abella ‣ Deafness by itself does not overcome the question (Cuyugan vs. Baron)
presumption that the person is in the full (4) Excitement or stress — if cannot recall
enjoyment of his mental capacity intelligently the extent of his property, etc.
(5) Partial Insanity; insane delusions;
Carillo vs. Jaococo ‣ A judgement rendering a testator mentally hallucinations; belief in things which do not
incapacitated after the execution of the will is not exist
conclusive that the testator was incapacitated at (6) Idiocy — congenital intellectual deficiency
the time he made the will

Yap Tua vs. Yap Ca Kuan ‣ “sick” — did not say the illness
‣ although the doctor's testimony pertained to the As to whether a person can execute a will, may also depend upon his IQ
mental health of the testator 24 hours before the
Can
execution of the will, there were other testimonies IQ
make a
which is to the effect that the testator was of level
will?
sound mind and memory (i.e. asked for pen and
ink
✘ They are congenitally and intellectualy deficient.
Idiots 25 unsound They cannot take care of their bodily needs.
Epilepsy as long as the will was not executed during an attack mind
They cannot be trained.

Bugnao vs. Ubag ‣ advanced stage of tuberculosis complicated with ✘ They are mentally deficient due to disease and
severe intermittent attacks of asthma Imbeciles 26-50 unsound they can be trained to take care of their bodily
‣ all this evidence of physical weakness in no wise mind needs and only to that extent.
establishes his mental incapacity or a lack of
testamentary capacity ✔
They can learn reading, writing, simple math.
‣ he was able to give the person who wrote the will Moron 51-70 can
execute They can be self-supporting.
clear and explicit instructions as to how his wills
properties will be disposed

Galvez vs. Galvez ‣ cholera
‣ evidence show that the mental faculties of the
testator were unimpaired, the contents of the will,
and the desire manifested by the latter to rectify
an error he incurred in the execution of his first
will, show that the testator was of sound mind and
perfectly aware of his duties with respect to the
legal, inviolable rights of his daughter and sole
heir.
UNSOUND MIND
Torres vs. Lopez Complete Senile Dementia, because it is only when
the three requirements are highly unlikely to have
been complied with.
Albornoz vs. Albornoz Lack of memory and understanding like in Jocson vs.
Jocson, unless the failure of memory is total or
extends to his immediate family or property
Neyra vs. Neyra Delirium when it beclouds the mind
In the case of Torres vs. Lopez, the mere fact that a person is placed under
guardianship, does not necessarily mean that he is not of sound mind. A person can
be placed in guardianship for other reasons (i.e. he could be a spendthrift, prodigal,
civil interdictee). In spite of being a spedthrift, prodigal, a civil interdictee, he is
qualified to execute a will. Each case must be decided upon its own facts. It is a case
to case basis.
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one mouth, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval.
Under Art. 800, the general rule is soundness of mind. Every person is of sound mind,
in the absence of proof to the contrary.
The burden is on the person alleging that the testator was not of sound mind at the
time when he made the will.
Effect: During probate, the testator need not prove that he is of sound mind
because it is presumed that he is. The burden is upon the oppositor to show
that the testator was not of sound mind at the time of the execution of the
will.
Proof Required to discharge the burden: CLEAR AND CONVINCING
EVIDENCE
- high degree of proof (goes next to proof beyond reasonable doubt)

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There can be an instance that the presumption is on the reverse: that the testator
was not of sound mind at the time that he made the will.
3 INSTANCES WHEN THE PRESUMPTION IS THAT THE TESTATOR WAS NOT OF
SOUND MIND:
(1) When the testator was publicly known to be insane one month or less
before making his will (Art. 800(2))
(2) When the testator was judicially declared to be insane before making the
will (In Spec Pro: hospitalization of insane persons; can file a petition for
the hospitalization of that person)
(3) Insanity of a general or permanent nature shown to have existed at one
time is presumed to have continued (based on Rule 131, Sec. 3(ee), Rules
of Court)
Rule 131, Sec. (ee) — A thing once proved to exist continues as long
as is usual with things of the nature;
ATTENDING PHYSICIAN — given highest regard
SAMSON VS. CORRALES TAN
44 Phil 573
The testimony of the physician here was not given much weight. Because it was
merely his speculations. He was not the attending physician of the testator.
As to the witnesses:
ATTESTING WITNESSES OF THE WILL (notarial wills) — given great weight
OTHER WITNESSES — if they were present during the execution of the will or
at least reasonably before after the same day; they can also testify as to the
mental condition of the testator

ex. A is born retarded. When he was 5 , 18 and 20 years old, he was still
retarded. Then when he died, a petition for probate was filed for a
document which is allegedly A’s last will and testament. What is the weight
presumption with respect to the mental condition? It is presumed that his witness given to Why?
mental condition continued. Because it was already established to exist at testimony
some particular point in time. One cannot allege that all his time he was
retarded then suddenly he made a will. not given Although generally, testimonies of
much notary publics are given great
Effect: the proponents of the will have the burden of proof to show that the Ramirez vs. notary weight weight, the notary public in this case
testator was of sound mind at the time of the execution of his will. Ramirez public was very evasive and did not directly
Proof Required: Clear and Convincing Evidence. (E to the and categorically state that the
GR) testator was of sound mind.
Evidence allowed by the Rules to prove soundness of mind:
All 3 doctors examined Tomas
Rodriguez before the will was
RAMIREZ VS. RAMIREZ executed. On the same day the will
39 SCRA 147 was executed, they signed a
3 doctors in certificate stating that patient was
Facts: This involves the will of Maria Garnier Garreau which was denied probate on
Torres vs. the hospital given sufferingfrom anemia, hernia,
the ground of the lack of testamentary capacity. Therein she instituted her nephew,
Lopez where weight dyspepsia and senility; that the
Lirio Pfannenschmidt. He is one of 4 children of the brother of Maria, Jose.
testator died mental faculties were sound except
that the memory is weak. The will
Jose testified that when Maria’s husband died, Maria went out looking for him — she
was short. It could easily be
had totally forgotten that he had passed away. He also said that she was easily
understood by a person in physical
susceptible to any suggestion from others, particularly those close to her and after
distress. It was reasonable.
doing what she was told, would promptly forget about it.
The fact these witnesses had a hazy
2 doctors gave their testimonies: Dr. de Arcos, family physician and Dr. Germain who recollection of the execution of the
had an impressive CV. Junquera 3
not given will shows that the will was a
vs. subscribing
weight forgery coupled with the fact that
Notary public also gave his testimony. Borromeo witnesses
the testator was old and physically
poor, his signatures were straight.
Issue: Was Maria of sound mind at the time she executed her will?
Ruling: MARIA WAS COULD NOT BE OF SOUND MIND AT THE TIME SHE EXECUTED Samson vs. not given Because he was not the attending
HER WILL. Trial court judge was based mainly on expert medical testimoony to the Corrales physician much physician. He merely made
effect that her mental infirmity was observed by the family physician as far back as Tan weight speculations and assumptions.
1953 and confirmed in 1955 by a competent psychiatrist, who described the process
of the mental degeneration as progressive and irreversible; on the written admissions They said that Silvestra understood
and declarations of appellant herself, who would have no motive then to falsify the the will when none of them
facts; and on the testimony of the testatrix' brother-in-law, Jose Eugenio Ramirez. On Cuyugan exchanged a single word of
the question of credibility, we find no ground to disregard such evidence in favor of not given
vs. Baron & 3 witnesses conversation with her. There was no
the vague, inconclusive statements of the notary public who authenticated the will any weight
Baron evidence that Silvestra took any
and of the two instrumental witnesses, nor even of the testimony of the rebuttal active part in the preparation thus
witnesses, the more categorical character of whose affirmations only serve to the will was not admitted to probate.
weaken their credibility, conflicting as they do not only with the evidence for appellee
but also with that given by the other witnesses for appellant.

Note:
Art. 801. Supervening incapacity does not invalidate an effective will,
When the notary public testifies before the court to prove the soundness of mind of
the testator, as a general rule, it is entitled to great weight. nor is the will of an incapable validated by the supervening of capacity.

Just remember we need testamentary capacity, both age and soundness of mind, at
However, what was the nature of his testimony in this particular case? Aside from the
the time of the execution of the will.
fact that he merely referred to the certification? The testimony was of the nature of
being evasive and would tend to beg the very issue. He did not positively declare that
As long as the testator is of sound mind at the time the will was made, even if he
the testator was of sound mind. Since the testimony was not categorial and direct,
becomes insane after, such fact will not invalidate the will.
the SC did not give much weight to it.

As to physicians:

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The execution of a will during a lucid interval is valid. Supervening capacity or
supervening incapacity does not invalidate an effective will.
Art. 802. A married woman may make a will without the consent of her
husband, and without the authority of the court.
Art. 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property.
Even if a woman is married, she can execute a last will and testament without the
consent of the husband.
While in the Family Code, a spouse cannot dispose of a property belonging to the
absolute/conjugal property without the written consent of the other, in succession,
the spouse may validly dispose of his or her particular share in the conjugal/absolute
property — without the consent of the other; more so when it comes to his/her
separate property. Because that disposition will only take effect after the death of the
spouse. Upon the death, there has to be a liquidation of the conjugal partnership of
the absolute community.
Family Code provides:
Art. 97. Either spouse may dispose by will of his or her interest in the
community property.
That a married woman may dispose by will, is just reiterated here in the law of
succession because before this was not recognized. To erase all doubts that the
married woman can dispose of her share in the absolute community or separate
property by will, we have this provision.
Subsection 3.
Forms of Wills
Art. 804. Every will must be in writing and executed in a language or
dialect known to the testator.
We have 2 kinds of wills which are recognized in the NCC:
(1) notarial will
(2) holographic will / ordinary wills
These wills require different formalities.
Art. 804 is a general requirement which is applicable in both holographic wills and
notarial wills.
MUST BE IN WRITING
As to what kind of writing, we have to make a distinction — in
notarial wills: typewritten, computerized
holographic wills: everything has to be in the handwriting of the testator
The law does not require any kind of ink, pwede pencil, ballpen, pentel pen.
The law does not require any kind of paper. You can even write it on your wall.
Pero ang hirap nun i-probate.
What is important here is oral wills are NOT allowed. Only written wills are allowed
in our jurisdiction.
NUNCUPATIVE WILLS — wills orally made by the testator in contemplation of
death and before competent witnesses.
- this kind of will is not recognized; even if you have 1000 witnesses
MUST BE IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR
The testator must understand the language used in the will. He does not need to
be proficient in the language as long as he can understand it.
What happens if the testator did not understand the language used in the will but
it was interpreted or explained to him? Is that sufficient?
IT WILL NOT CURE THE DEFECT.
From the phrase: “The will written in English and was explained and interpreted to
the testator..” — we can say that the will is invalid as the testator did not
understand the language used.
law presumes that the testator knew the language
With respect to this requirement, the law presumes that the language used in the
will is known to the testator. In fact, if there is a question as to whether the
testator understood the language, extrinsic evidence may be presented —
writings, witnesses who can testify that the testator.
EFFECT OF THE PRESUMPTION:
1. There is no statutory requirement that the will should state that it is in a
language or dialect known to the testator.
‣ in some cases, the will mentions that a particular will is written in a
language known to the testator — such mentioning is allowed; but is
not required
‣ even without that statement, the will is not automatically voided.
2. There is no need to state in the attestation clause that the will is written in a
language known to the testator.
‣ Under Art. 805, there are 4 statements which must be mentioned in the
attestation clause, but this is not one of them
3. That the will is written in a language known to the testator may be proven by
extrinsic evidence
‣ when we go to the principle on substantial compliance, there are
matters which cannot be proved by extrinsic evidence, you only have to
limit yourself to the writings in the will, in the attestation clause or in
the acknolwedgement
‣ insofar as the language is concerned, you can accept extrinsic
evidence, i.e. witnesses, writings made by the testator while he was still
alive, etc
ABANGAN VS. ABANGAN
40 Phil 476
FACTS: This involves the probate of the will of Ana Abangan. The will consists of 2
sheets written in Bisaya.
1st page contained all the disposition of the testatrix, duly signed at the bottom by
Montalban in the name and under the direction of the testatrix and by 3 witnesses.
The 2nd page contains only the attestation clause duly signed at the bottom by the 2
instrumental witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these omissions,
according to appellants' contention, are defects whereby the probate of the will
should have been denied. We are of the opinion that the will was duly admitted to
probate.
It was alleged that the records do not show that the testatrix knew the dialect in
which the will was written.
ISSUE: Should the will be avoided because it does not state that Ana knew the
dialect in which her will was written?
RULING: NO. The circumstance appearing in the will itself that same was executed in
the city of Cebu and in the dialect of this locality where the testatrix was a neighbor
is enough, in the absence of any proof to the contrary, to presume that she knew this
dialect in which this will is written.
Note:
Why did the opposition even contend that the will was not in the language known to
the testator? The will was written in Cebuano but the testator did not reside in Cebu
or nearby localities.
Based on the circumstances of the testatrix during her lifetime, one can say that
there is a connection between the language used in the will and the language which
she knew or understood during her lifetime.
The court could safely presume that the neighboring localities knew the language
spoken because of the proximity.
Here the will was valid.
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REYES VS. VIDAL
91 Phil 127
This involves the petition for the probate of the will of Maria Zeniga Vda. de Pando.
Dolores Vda de Vidal opposed the petition on the ground that the will was written in
Spanish which the testatrix did not understand.
Note:
Even if nobody testified as to whether the testatrix knew the Spanish language, the
evidence on record showed that the testatrix knew the language.
- several letters written in spanish
- she was a mestisa
- she was married to a Spaniard
- the legal presumption that she knew the language in which the will was
written stands
ABADA VS. ABAJA
GR 147145, January 31, 2005
Opposition: nowhere in the will can one discern that Abada (testator) knew the
Spanish language.
Note:
Was the will written in the language known to the testator?
Yes. A witness testified that Abada used to gather Spanish-speaking people
in their place. In these gatherings, Abada and his companions would talk in
Spanish.
We have here extrinsic evidence — the testimony. It is to the effect that the testator,
during his lifetime, used to gather Spanish-speaking people. This was sufficient to
prove that he knew the language. Besides, you have this presumption that the
testator knew the language which was used in the will. Presumption stands.
ACOP VS. PIRASO
91 SCRA 127
Testator: Piraso, lived in Baguio
language used in the will: English
The record show that the testator knew no other language other than Igorot and
Ilocano.
Does the presumption that the will was written in the language known to the testator
stand? No. Even though there is no requirement that whether the language is known
to the testator be written in the will, it was not only proven that the will was written in
English but there is also positive proof that Piraso knew no other language than
Igorot and Ilocano.
The presumption did not arise because of the contrary evidence. Even if the
presumption would arise, it can be fully contradicted and destroyed by
evidence.
Note:
Based on this case, you cannot see a connection between the language used in the
will and the circumstances of the testator. The will was written in English, and the
testator lived in Baguio. There was no evidence that he travelled to the US, or any
place where English is spoken. He lived in Baguio and he only knew the Igorot and
Ilocano dialect.
Even if you have the presumption under the law that the will is written in a language
known by the testator, it will not stand if it is fully contradicted and destroyed
because of evidence which prove otherwise.
TESTATE ESTATE OF JAVELLANA VS. JAVELLANA
106 Phil 173
Language used in the will: Spanish
Opposition: language was not understood by testator; he was a resident of Rizal
where Spanish is not spoken; he spoke the Visayan language when he was alive.
First Exam
Does the presumption apply in the case? No. The surrounding circumstances of the
case prove that the language used in the place of residence and the language that he
knew was not Spanish.
Note:
Nothing in the cirucumstances of the testator would show that he knew the Spanish
language. He lived in San Juan, Rizal and he was a Visayan. He cannot be presumed
that a Visayan knows the Spanish language.
If you notice, where the SC allowed the probate of the will, at least there are certain
circumstances which bear a CONNECTION between the testator and the language
used in the will.
In this case, the SC said that no such presumption can arise because there is nothing
in the records which would show that the testator knew the Spanish language.
LOPEZ VS. LIBORO
81 Phil. 429
This involves the last will and testament of Don Sixto Lopez. It was written in
Spanish.
Liboro impugns the will for its silence on the testator’s understanding of the
language used in the testament.
ISSUE: Is the will valid?
RULING: YES. There is no statutory requirement that such knowledge be expressly
stated in the will itself. It is a matter that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a
will written in Tagalog was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the subject other than the fact
that the testator resided in a Tagalog region, from which the court said "a
presumption arises that said Maria Tapia knew the Tagalog dialect.
SUROZA VS. HONRADO
110 SCRA 32
FACTS: This involves the will made by Marcelina Suroza, a veteran’s widow. The will
was in English and thumbmarked by her. She was illiterate. Therein, she bequeathed
all her properties to granddaughter Marilyn.
The petition for probate filed by the laundrymaid of Marcelina was granted by Judge
Honrado.
Nenita Suroza opposed the petition on the ground that the will was falsified. This
was corroborated by Marcelina’s niece.
Nenita, 10 months later, filed a complaint against Judge Honorado for having
probated the fraudulent will of Marcelina. The complainant reiterated her contention
that the testatrix was illiterate as shown by the fact that she affixed her thumbmark
to the will and that she did not know English, the language in which the win was
written. (In the decree of probate Judge Honrado did not make any finding that the
will was written in a language known to the testatrix.)
ISSUE: Should disciplinary action be taken against respondent judge for having
admitted to probate a will which on is face is void because it is written in English, a
language not known to the illiterate testatrix?
RULING: 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". 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 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).
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Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator’s name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credibel
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as foresaid,
each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or causd some other person to write his name,
under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 805 gives us the requirements for notarial wills.
Even if the law says “every will,” it only refers to notarial wills.
I don’t suggest that you memorize Art. 805 verbatim. But you have to master all the
requirements mentioned. Let us summarize the formalities of notarial wills.
1. Must be in writing (Art. 804)
2. Must be in a language or dialect known to the testator (Art. 804)
3. Must be subcribed at the end by the testator himself or the testator’s name
written by some other person in his presence and by his express direction
4. Must be attested and subcribed by 3 or more credible witnesses in the presence
of the testator and of one another
5. Must be signed on the left margin by the testator or the person requested by him
to write his name and by the instrumental witnesses on each and every page
thereof except the last
6. All the pages shall be numbered chronologically in letters, placed on the upper
part of each page
7. There must be an attestation clause
8. The will must be acknowledged before a notary public (Art. 806)
What is the purpose why we have these requirements?
The purpose is to close the door against fraud, bad faith, to avoid substitution and to
guarantee the authenticity of the will.
If you don’t have these formalities, there might be a chance that we are left with a
last will and testament which is not really executed by the testator. It may be forged
one. He may have made it but he was forced or intimidated to execute it.
SUBCRIPTION BY THE TESTATOR OR BY SOME OTHER PERSON IN THE
PRESENCE AND UNDER THE EXPRESS DIRECTION OF THE TESTATOR
The will must be subscribed by the testator himself. He must sign it.
Can he delegate the task to someone else? Yes. As long as the signing is done in
the presence of the testator and under the express direction of the testator.
What should the testator affix in his will? Ideally, it should be his full signature.
What if he merely used his customary signature, “JD Cruz”? It is allowed.
What if he merely signs his initials, JDC? Yes.
What if thumbmark or a smiley face or a thumbmark or stamped? Yes.
What do you have to remember in notarial wills?
As long as it is the customary signature of the testator or he intended it to be his
signature, it will be a valid signature.
That is in notarial wills.
First Exam
LEANO VS. LEANO
30 Phil 612
Facts: Testatrix, Cristina Valdes, placed a cross against her name attached by
some other person to the instrument offered for probate which purports to be her
last will and testament, in the presence of the three witnesses whose names are
attached to the attesting clause, and that they attested and subscribed the
instrument in her presence and in the presence of each other.
Issue: Is the will valid?
Ruling: The placing of the cross opposite her name at the conclusion of the
instrument was a sufficient compliance with the requirements of section 618 of
the Code of Civil Procedure, which prescribes that except where wills are signed
by some other person than the testator in the manner and form therein indicated,
a valid will must be signed by the testator. The right of a testator to sign his will
by mark, executed animo testandi, has been uniformly sustained by the courts of
last resort of the United States in construing statutory provisions prescribing the
mode of execution of wills in language identical with, or substantially similar to
that found in section 618 of our code, which was taken from section 2349 of the
Code of Vermont.
Note: There was evidence that Cristina Valdes intended the cross to be her
signature. Here, the will was considered signed by the testator -- thus valid.
GARCIA VS. LACUESTA
90 Phil. 489
Facts: The will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.
Sgd. Numeriano Evangelista Sgd. Rosenda Cortes
Sgd Bibiana Illegible
The will was signed by Atty. Florentino Javier who wrote the name of Antero
Mercado followed below by “A ruego del testator” and the name of Florentino
Javier. Antero Mercado allegedly wrote a cross immediately after his name.
CA said that the attestation clause failed to certify that after the signing of the
name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of
which the will consists and at the end thereof.
Issue: Is the will valid?
Ruling: CA upheld. VOID.
THE ATTESTATION CLAUSE IS FATALLY DEFECTIVE FOR FAILING TO STATE THAT
ANTERO MERCADO CAUSED ATTY. JAVIER TO WRITE THE TESTATOR’S NAME
UNDER HIS EXPRESS DIRECTION, AS REQUIRED BY SEC. 618 OF THE CODE OF
CIVIL PROCEDURE. The herein petitioner Garcia argues, however, that there is no
need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases of De Gala vs.
Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs.
Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not
have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.
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Note:
Was it signed by him? SC ruled that there was no proof that the cross was
intended by Antero Mercado to be his signature.
The SC ruled that if one should have another person sign in their behalf, such fact
must be stated in the attestation clause. Since it was not provided in the
attestation clause, the will was rendered void.
Again, it was voided because such fact was not mentioned in the attestation
clause.
Under the law, it is actually acceptable that a 3rd person to subscribe a will in the
presence of the testator and under his express direction. However, there is an
additional requirement: that it should be stated in the attestation clause.
None was written in the attestation clause so the will was void. Take note that, it
was not voided because the cross was not the customary signature of the
testator because a 3rd person may sign on behalf of the testator. Again, the will
was disallowed because the attestation did not contain that the signature was
signed by someone else.
That is the difference between Leaño vs. Leaño and Garcia vs. Lacuesta.
Can one of the attesting witnesses sign on the behalf of the testator?
In the Barut vs. Cagacungan, it appears that anybody may sign for the
testator. Even one of the subscribing witnesses. But in the much later
case of In Re Will of Tan Duico, the SC implied that it is allowed that one
of the subscribing witnesses to sign as long as there are more than 3
witnesses. Because in the case of Barut, there were actually 4 witnesses.
So, this is allowed as long as there are more than 3 witnesses or at least
4 witnesses.
When the 3rd person signs on behalf of the testator, the law says that it must be
in his presence and under his express direction.
IN RE WILL OF TAN DUICO
45 Phil 807
Facts: Mamerta Base filed this petition for the probate of the will executed by the
Chinaman Tan Duico. The latter died on December 8, 1920.
The document was signed by Simplicio Sala by the order of the testator, whose name
is before the said signature, by reason of the latter’s incapacity on account of his
weakness and the trembling of his hand, the testator also stating that he directed
Simplicio Sala to sign it in his name and in the presence of the 3 witnesses who also
signed with him at the bottom of the document, and on the left margin of each of its
3 pages correlatvely numbered in the letters by Sala in the name of Tan Duico and by
witnesses: Maturan, Fenomeno and Peñaredondo. to wit:
We, the undersigned witnesses to the forgoing will, do hereby state that the testator
signed this will and each of its sheets in the presence of all and each of us, and we and
each of us likewise did sign this will and all of its sheets in the presence of the testator
and each of us, witnesses.
Tan Duico
By Simplicio Sala
Fenomeno
Maturan
Peñaredondo
The probate was denied by the CFI of Leyte it was not signed by three instrumental
witnesses beside the signature of the testator and before the attestation clause.
ISSUE: Is the will valid?
RULIGN:
ACT 2645 PROVIDES THAT THE WILL MUST BE ATTESTED AND SIGNED BY 3 OR
MORE CREDIBLE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF EACH
OTHER. Sec. 618 provides: The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall
state the number of sheets or pages used, upon which the will is written, and that
fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
WITH REGARD TO THE ATTESTATION, SEC. 618 DOES NOT SAY THAT THE
WITNESSES MUST BE DIFFERENT FROM THOSE WHO SIGNED THE ATTESTATION
CLAUSE. Because in the first part of said section, after speaking of the signature of
the testator or the person signing in his place, it adds, "and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each other," from
which it clearly follows that the same witnesses who signed on the left margin of
each page of the document presented by the testator to them as his will, must be the
ones who should sign the attestation clause, inasmuch as they alone can certify the
facts to be stated in said clause, for having taken a direct part therein, as they saw
the testator sign the will, or the person requested by him to sign all the sheets of the
will, that is, the document constituting his last will and testament, and affirm that it
was signed under his express direction in the presence of said witnesses and that all
the sheets thereof had also been signed by them in the presence of said testator and
of each of them, as stated in the attestation clause of the will of the deceased Tan
Diuco, with the other details appropriate in said clause.
THE 3 WITNESSES WHO SIGNED THE ATTESTATION CLAUSE, ALSO SIGNED THE LEFT MARGIN
AND BESIDE THE SIGNATURE OF THE TESTATOR OR OF SIMPLICIO SALA WHO SIGNED BY THE
ORDER OF THE LATTER. It is evident that in the instant case, it is merely a matter of technicality
devoid of any importance as to the probate of the will that said witnesses are called instrumental
witnesses, as if they were different from those who have to sign the attestation clause, for all of
them are but the same witnesses; and, as this court held in the case of Abangan vs. Abangan (40
Phil., 476), "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 guarantee 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 a
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded;" which doctrine must be applied in this case, in view of the facts
herein mentioned and what has been above demonstrated.
The document is admitted to probate.
Note:
“IN HIS PRESENCE”
What do you mean by “in his presence”?
There are 4 tests of presence:
(1) Test of vision — testator must see the will being signed
(2) Test of position — even if he did not see, but he was in a position to see the
will being signed
(3) Test of mental apprehension — did not see that the will was being signed by
the person directed by him, but at the back of his mind, the testator knows
that the will is being signed
(4) Test of available senses — usually applied to blind testators
A blind person can be a testator under Art. 808. The fact that he cannot
see, does not mean that there was no signing that was done in his
presence. The signing could be known with the use of the other available
senses like touch, smell, or hear.
It can be considered within his presence as long as it is within the range
of the other available senses. This must be coupled with the fact that the
signing must be under the direction of the testator. The subscriber must
have been clearly authorized by the testator.
BY HIS EXPRESS DIRECTION
The testator, by word of mouth or action should clearly indicate to the proxy his
desire to have his name signed on the instrument. Since the law says “express
direction,” such direction by the testator cannot be implied. The testator’s silence
does not mean that he gave his consent. There has to be an express direction
from the testator.
WHAT IS THE PROXY SUPPOSED TO AFFIX IN THE WILL?
The proxy must affix the name of the testator — since it is the testator’s will.
He may also put “for Juan Dela Cruz by Rafael Rivas”
What the third person spelt the testator’s name incorrectly? It does not matter. As
long as what is affixed is intended to be the name of the testator.
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How about an e-signature under the Electronic Commerce Act — is that allowed in
wills? An e-signature, according to the E-Commerce Act, is one attached to or
logically associated with the e-data message or e-document or any methodology or
procedures employed or adopted by a person with the intention of authenticating or
approving an e-message or e-document.
They are affixed pursuant to the transaction and contracts. The
intention in the law, under the E-Commerce Act, is for the signatures to be attached
pursuant to transactions and contracts. As we have already discussed before, wills
are not contracts. They are unilateral acts of the testator.
Therefore, you cannot affix an e-signature in a will. In notarial wills,
even if we say that such signature is intended to be a signature, the law does not yet
allow those e-signatures to be affixed in wills. More so in holographic wills since
everything has to be in the handwriting of the testator. E-signatures are just for
transactions and contracts.
LOCATION OF THE SIGNATURE: SIGNED AT THE END
When you say “end,” it is the logical end.
What do we mean by the “logical end”?
Order of things in a will: (1) testamentary provisions (2) signature (3)
attestation clause (4) signatures of the witnesses (5) acknowledgement (6)
signature of the notary public
Logical end — that portion after the testamentary dispositions but before the
attestation clause.
It is not necessarily the physical end. Because in one case, there is a big
space between the testamentary provisions and the attestation clause, it
was alleged that the will is void because the signature does not appear to be
at the end. In fact, it was physically in the middle of the document. That the
attestation clause was added belatedly. The SC said that the will was signed
at the end because it is found after the testamentary dispositions and before
the attestation clause — although the attestation clause is on the second
page.
Even if there was still a big space after the signature, it is okay. The law does
not say that the signature should be at the physical end. It is required that it
be merely placed on the logical end.
What if the after the signature of the testator in the notarial will, he made
some insertions? Testator forgot to include an heir. So he puts the
disposition there and signs it again (before the attestation clause.) What is
the effect of the insertion after the signature? When it comes to notarial
wills, the presence of additional provisions after the signature of the testator
will invalidate the entire will. Please remember that because the rule is
different when it comes to holographic wills.
Why would it invalidate the entire will when it is the testator himself that
inserted the disposition? The will is invalidated because it no longer
complies with the formal requisites. The law says that the signature must be
at the logical end. If you add some provisions after the signature, the
signature would no longer be considered to be at the end. Although we may
say that the reason is flimsy, the purpose for this is to protect the will
against unauthorized insertions.
If you are executing a notarial will and would like to add to it, you may do so
in another will or execute a codicil.
TESTATOR OR PERSON REQUESTED BY HIM TO SIGN AND THE CREDIBLE
WITNESSES EACH AND EVERY PAGE OF THE WILL ON THE LEFT MARGIN
EXCEPT THE LAST PAGE
Marginal Signatures
The testator and the attesting witnesses must all sign in the margin — that’s what we
call the marginal signatures.
The law says “left margin,” but what if they signed on the right margin? It does not
matter whether the margin is signed at the left, right, top or bottom. The purpose of
the marginal signatures is just for identification. So, during the probate of the will, the
witness can attest to the authenticity of the will by saying that he knows it is the
same will since he signed it. That way, the witness can identify that the will being
probated is the very same will that was attested to by the witnesses and subscribed
by the testator.
First Exam
When the purpose is just for identification, you can identify it regardless of the
location of the signature.
Except the last page
The marginal signatures are not required here because the last page usually contains
all the signatures: testator’s signature, the witnesses’ signatures and the notary
public’s signature. Just remember that each page contains all signatures.
Illustration: In a will that has 3 pages. 1st and 2nd contain the testamentary
dispositions and 3rd page has the attestation clause. The signatures in the
1st and 2nd page can be on the left, right, top or bottom. On the 3rd page, the
testator signed after the testamentary provisions then the witnesses signed
at the end of the attestation clause. Do they have to sign on the margin? No
need because all signatures are already found in that page.
In a will that uses only 1 page, back to back — do you need marginal
signatures for each page? In the front, yes. In the back, no need for the
marginal signatures.
In a will that only has 1 page — do you need marginal signatures? As
discussed in Abangan vs. Abangan, there is no need for the marginal
signatures because the signatures can already be found in therein after the
testamentary dispositions (for the testator) and after the attestation clause
(for the witnesses.)
“The signature is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes the will.
We hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains
only the attestation clause and is signed also at the bottom by the
three witnesses, it is not necessary that both sheets be further
signed on their margins by the testator and the witnesses, or be
paged.”
In the case of Fernandez vs. De Dios, the last page contained only the
attestation clause. Does that page require the signature of the testator?
Let’s say the 1st page was signed by the witnesses on the margin and by the
testator after his testamentary dispositions. The 2nd page contained just the
attestation clause signed by the witnesses. The will's validity was question
on the ground that it was not signed by the testator on the margin. Is the will
valid? The law says, the will must be signed on the margins on each and
every page. The attestation clause is not the will of the testator — it is purely
the act of the witnesses. So if there are no testamentary dispositions in that
page, the SC said that the testator does not need to sign on the margin of the
last page.
Just remember that insofar as marginal signatures are concerned, each and every
page of the will must be signed on the margins by the testator and the 3 instrumental
witnesses.
What is the effect of one page not being signed at the margin?
GR: it invalidates the entire will
Let’s go to the case of Icasiano vs. Icasiano.
ICASIANO VS. ICASIANO
11 SCRA 422
Josefa Villacorte died on Sept 12, 1958. On June 2, 1956, she executed a last will and
testament in duplicate at the house of her daughter Felisa, published before and
attested by 3 instrumental witnesses: Attys Torres, Jr., Natividad, and Diy. The will
was acknowledged by the testatrix and by the 3 instrumental witnesses before Atty
Ong, the notary public. The will was prepared by Atty. Samson who was also present
during the execution and signing of of the decedent’s last will and testament. The
Gov. of Bulacan, Judge Icasiano and a little girl were also present at that time.
The Attys Torres and Natividad, Samson and the notary public testified as to the due
execution of the will.
Records show that the original of the will which was surrendered simultaneously with
the filing of the petition consists of 5 pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty.
Natividad on page 3. But the duplicate copy attached to the amended and
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supplemental petition is signed by the testatrix and the attesting witnesses in each
and every page.
A petition for the probate of the will of Josefa Villacorte and for the appointment of
Celso Icasiano as executor was filed on October 2, 1958.
Natividad, the daughter of the testatrix filed her opposition, she petitioned to have
herself appointed as special administrator. Court issued an order appointing the
Philippine Trust Company as special administrator.
Enrique Icasano, the son of the testatrix adopted the opposition of his sister.
Natividad and Enrique filed an opposition to the admission of the will as evidence.
However, the court admitted the will and its duplicate to probate. Thus this appeal
before the SC.
Issue: Is the will valid?
Ruling: YES.
1. The inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of 2 pages in the course of signing, is
not per se sufficient to justify the denial of probate. Impossibility of substitution
of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or
the attestation clause".
2. The failure of the witness, Natividad to sign page 3 was entirely through pure
oversight shown by his own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
3. This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,
41 Phil. 476); and that despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by letters or numbers is
not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify
the Court's policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or unnecessary curtailment
of the testamentary privilege.
Note:
That will wherein a page was not signed, was it the original? Yes.
Were there other copies of the will? Yes.
In this case, the SC said that the court should not penalize the testator for the
negligence or inadvertence of one witness over whose actions the testator had no
control. Especially that in this case, there were other copies of the will. The other
copies contained all the signatures. Whatever omission was in the original copy, it
was supplied by the other copies in the will.
SC applied the principle of substantial compliance, thus allowing the will. It is not a
fatal defect.
I must emphasize that there are other copies of the will. The omission was supplied by
the other copies of the will. It would be different if there are no copies or there is one
and yet it still did not contain all the signatures.
Recap: The will must be signed on each and every page on the left margin. Although
in many cases, the SC said that the location of the signature is not that material
because the purpose of marginal signatures is only for identification. The will can still
be identified even if the signatures appear on the left, right, top or bottom.
First Exam
In the case of Icasiano, that was an application of the principle of substantial
compliance rule because even if one of the pages was not signed by the testator — it
was found to be a mere inadvertence. Besides, there were other copies of the will
where all of the signatures could be found.
ALL THE PAGES SHALL BE NUMBERED CORRELATIVELY IN LETTERS,
PLACED IN THE UPPER PART OF EACH PAGE
Each page must be numbered.
Purpose:
(1) to guard against fraud
(2) to forestall any attempt to supress or substitute any of the pages
(3) to prevent any increase or decrease in the pages
(4) to afford means to detect the loss of any of the pages
The law says: numbered correlatively in letters
If you are to follow the letter of the law: page one, page two etc.
How about the paging is done by roman numerals, alphabet letters? There is no
prohibition if the pages of the will are done like that.
In Unson vs. Abella, the use of arabic numerals was allowed.
In Aldaba vs. Roque, the letters a, b, c, was allowed.
In Nayve vs. Mojal, the numbers 1, 2, 3 was allowed.
Because you can still determine what is the 1st page, the 2nd page, and the 3rd
page.
How about if the numbering is partly in letters and partly in figures? That was
accepted in the case of In Re Pilapil. 72 Phil 546
What if there is only 1 page, and it is not numbered? The SC said in Lopez vs.
Liboro and Abangan vs. Abangan, if the will consists of only 1 page, and there is
no numbering, it is understandable that it is the first page. You are guarded
against the loss of tha pages because if page 1 is lost, everything is lost. That is
not a fatal defect.
In the case of Fernandez vs. Vergel De Dios, the document had 4 pages, however,
only the 3 pages were numbered. The 4th page is not numbered. The attestation
clause, however mentioned that the document/will consists of 3 pages excluding
the page which had the attestation clause. With that statement in the attestation
clause, it is evident that the last page was the 4th page. It was curable by
reference to the attestation clause. You do not have to go outside the will to
know how many pages really were contained in that will.
In the same case, although the law says that the numbering should be found
on the upper part, it can be written at the bottom or by indication — such as in
the body itself, as long as it is indicated that it is the 1st page, the 2nd page, and
so on.
When the law says: letters, it is okay as long as they are consecutive.
THE WILL MUST BE ATTESTED AND SUBSCRIBED BY 3 OR MORE
CREDIBLE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF ONE
ANOTHER
Here, we have attestation and subscription.
When the testator signs a will — that is subscription.
The testator, aside from subscribing, witnesses the signing of the other
witnesses.
What do the witnesses do?
(1) They subscribe/sign in the attestation clause and in the margins
(2) they attest the signing of the testator in the execution of the will as well as
the signing of the other witnesses
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Attestation
it consists of witnessing the testator’s
execution of the will in order to see and
take note mentally that those things
are done in accordance with the
statutes on wills; and that the
testator’s signature exists as a fact
it is a mental act; an act of the senses
all of them witness the act of each and
every one of them
Purpose: to render available proof of
the authenticity of the will and its due
execution/ proof as to the facts which
attended the execution of the will
to attest the will is to know that it was
published as such and to certify the
facts required to constitue an actual or
legal publication
if you forget: attestation = you witness
The witnesses subscribe and witness. Take note that the act of subscription must be
done in the presence of each and every one of them and of the testator.
When they attest, it should also be in the presence of the testator and of each and
every one of them. They are also witnesses of each other.
Subscription
it is the signing of the witnesses’
names upon the same paper for the
sole purpose of identification of such
paper of the will which was executed by
the testator
it is a mechanical act; an act of the
hand
they sign on the will
Purpose: for identification; for the
witnesses to testify to the court that
the will being presented for probate is
the same will they signed
to subcribe 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
subscription = when you write
importance. He, with the other witnesses and the testator, had
assembled for the purpose of executing the testament, and were
together in the same room for that purpose, and at the moment when the
witness Javellana signed the document he was actually and physically
present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper
direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before
he finally left the room.
2. The purpose of a statutory requirement that the witness sign in the
presence of the testator is that the testator may have ocular evidence of
the identity of the instrument subscribed by the witness and himself, and
the generally accepted tests of presence are vision and mental
apprehension.
3. In the matter of Bedell, it was held that it is sufficient if the witnesses are
together for the purpose of witnessing the execution of the will, and in a
position to actually see the testator write, if they choose to do so; and
there are many cases which lay down the rule that the true test of vision
is not whether the testator actually saw the witness sign, but whether
he might have seen him sign, considering his mental and physical
condition and position at the time of the subscription.
4. The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them to
the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were complied
with, and that the lower court erred in denying probate to the will on the
ground stated in the ruling appealed from.
Note:
What was the position of the witness?
Did anyone see him sign?

Recall the Tests of Presence: The test used here was the test of position. They could have seen the act of
(1) Test of vision — the witnesses saw the subscription and the attestation signing had they just looked at the witness.
(2) Test of position — they did not see but they were in a position to see

Let’s look at the case of Jaboneta vs. Gustilo

JABONETA VS. GUSTILO
GR 1641, January 19, 1906
Facts: CFI denied the probate of the last will and testament of Macario
Jaboneta because one of the witnesses (Julio Javellana) did not attach his
signature thereon in the presence of Isabelo Jena, another of the witnesses.
Isabelo testified that he believed that Javellana signed because he held a pen
in his hand although did not see him actually sign.
The Court found that following facts: On December 26, 1901, Macario
Jaboneta executed the will. Macario called Julio Javellana, Aniceto Jalbuena,
and Isabelo Jena as witnesses. They were all together in the room where
Jaboneta was and were present when he signed the document. Isabelo
signing as a witness, and in his presence and in the presence of the other 2
witnesses. Jalbuena signed as a witness in the presence of the testator, and
in the presence of the other two persons who signed as witnesses. Isabelo
being in a hurry to leave, took his hat and left the room. As he was leaving
the house Julio Javellana took the pen in his hand and put himself in
position to sign the will as a witness, but did not sign in the presence of
Isabelo Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of the
witness Aniceto Jalbuena.
Issue: Is the will valid?
Ruling:
THE WILL IS VALID.
1. The fact that Jena was still in the room when he saw Javellana moving
his hand and pen in the act of affixing his signature to the will, taken
together with the testimony of the remaining witnesses which shows
that Javellana did in fact there and then sign his name to the will,
convinces us that the signature was affixed in the presence of Jena. The
fact that he was in the act of leaving, and that his back was turned while
a portion of the name of the witness was being written, is of NO
NERA VS. RIMANDO
GR L-5971, Feb 27, 1911
Facts: There was an opposition to the probate of the will on the ground that
one of the subscribing witnesses was not in the small room where the will
was executed but rather in the large room which was beside the small room.
Between the two rooms hung a curtain which made it impossible for anyone
to see what was happening inside the small room.
Issue: Whether the subscribing witness was present in the small room where
the will was executed.
Ruling: YES.
1. However, if the subscribing witness was in the other room, that would
invalidate the will. The signatures would not comply with the requisite
that the subscription be done in the presence of the witnesses. The
curtain would definitely prevent the witnesses from seeing what the
testator is doing
2. The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature.
3. The position of the parties at the moment of the subscription of each
signature, must be such that they may see each other sign if they choose
to do so.
4. It is sufficient that at that moment of subscription that if they cast their
eyes in the proper direction that they could see each other sign.
Note:
If there is a curtain, it could not be in the range of vision. It could not pass
the test of position because of the curtain. The will would not be valid if that
is the case.

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What if it is a sliding door? If it is made out of glass, the will shall be valid.
But if it is made out of wood, the effect would be like that of the curtain —
they could not see.
MARAVILLA VS. MARAVILLA
GR L-23225, Feb 27, 1971
Facts: The brother and sister of the testatrix, Digna Maravilla opposed the
probate on the ground that the testatrix did not sign the will.
The trial court did not allow the probate of the will after it found that
instrumental witness (Aquilino Mansueto) did not actually see Digna sign it.
Although he testified that Digna signed the will in the presence of the 3
witnesses and the lawyer. Mansueto also testified that he could not
remember very well the other details because 14 years have elapsed and
when he signed as a witness, he did not give it any importance (as at that
time, he was worried that he’ll be arrested by the Japanese Kempetei). The
trial court judge concluded that Mansueto did not actually see Digna sign the
will based on the fact that while Mansueto positively identified his own
signature ("I identify this as my signature") but not that of the testatrix, his
five answers to the questions of counsel, in reference thereto, being "this
must be the signature of Mrs. Digna Maravilla."
Issue: Did he witness the subscription by the testatrix as required by law?
Ruling:
THE TESTATRIX SIGNED THE WILL IN THE PRESENCE OF THE WITNESSES.
1. It was but natural that witness Mansueto should be positive about his
own signature, since he was familiar with it.
2. He had to be less positive about Digna Maravilla’s signature since he
could not be closely acquainted with the same. To demand that in
identifying Digna’s signature Mansueto should display a positiveness
equal to the certainty shown by him in recognizing his own, exceeds the
bounds of the reasonable.
3. In Mansueto’s cross examination, he said: "I remember and (I) signed the
will in the presence of all the witnesses and in the presence of attorney
Villanueva". In the absence of an assurance that no one else was
present, this assertion does not really contradict Mansueto’s testimony
in chief that "I have read the entire document before I signed it in the
presence of the other witnesses, Digna Maravilla and Attorney
Villanueva". A will may be allowed even if some witnesses not remember
having attested it, if other evidence satisfactorily show due execution,
and that failure of witness to identify his signature does not bar
probate.
4. Mansueto, Hernaez, Bunaflor, and the testatrix, and lawyer, sat next to
one another around one table when the will was signed is clearly
established by the testimony of the lawyer and Mr. Maravilla. Such detail
proves beyond doubt that each one of the parties concerned did sign in
the presence of all the others. It should be remembered, that the test is
not whether a witness did see the signing of the will but whether he was
in a position to see if he chose to do so.
Note:
The test of position was complied with. The fact that they were seated in a
round table, establishes the fact that they would be able to see each other
sign.
What was the other test mentioned here? Test of available senses.
How about the witnesses, can you apply the test of available senses? No.
This kind of test is only applicable /allowed if it is the testator who is blind.
So even if the testator did not see that the witnesses subscribed the will or
attested to it, as long as that was done within the range of her other
available senses. This test cannot be applied to the witnesses because a
blind person is disqualified to become a witness.
A blind person cannot be disqualified to be a testator. One cannot deprive a
blind man’s privilege to make a will. The testator can neither delegate the
making of his will or his testamentary power.
The blind person is disqualified to become a witness because the testator
can choose between many more qualified person, why choose the blind
man?
(3) Test of mental apprehension —
(4) Test of available senses — only applicable to the testator and not the
witnesses
What if the witnesses signed ahead the testator?
In Gabriel vs. Mateo, the question there is whether it should be the testator who
should sign the will ahead of the witnesses. What happens if the other signed before
the testator? The SC said that it does not matter that the witnesses signed ahead of
the testator or after the testator for as long as the signing is sufficiently
contemporaneous and made on one occasion and a part of a single transaction.
As long as all of you are there and in a position to see each other, it does not
matter whether the witnesses signed ahead of the testator.
What about the signing before the notary public? Should it be done on the same day the
will was executed?
No. With respect to the acknowledgement before the notary public, it is not even
required that the notary public be there. What is important is they appeared before
the notary public — on the next day, or another day.
It is not required that they all appear together, but it is required that they appear
before the notary public. It is not required that the will be acknowledged in the
presence of each and every one of them.
ATTESTATION CLAUSE
To attest means to witness. It is a mental act of the senses.
To attest is to declare that the witnesses actually saw the testator signed the will
and that all the witnesses signed the will and also attested to the execution of the
will.
Even if they did not actually see but are in a position to see the signing,
that is sufficient.
Aside from the act of attesting, there should be an attestation clause itself.
Attestation clause — is the written statement in the will as to what actually
transpired during the execution of the will. It is that clause of an ordinary or
notarial will wherein the witnesses certify that the instrument has been executed
before them and the manner of the execution of the same. It is a separate
memorandum or record of the facts surrounding the conduct of execution and
once signed by the witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed.
- not enough that the will was attested
- aside from the fact of attestation, there should be an attestation clause
which is written as part of the will
That is the attestation clause — it preserves in a permanent form the facts
attendant during the execution of the will.
Purpose of the attestation clause: In the case of death, absence or failure of the
memory of the subscribing witnesses or other casualty the due execution will still
be proved.
- the death of the testator remains uncertain from the execution of the will;
if he dies 50 years from now, the attestation clause serves as proof as to
what transpired during the execution
- this is just in case the witnesses forget what actually happened and just in
case they die before the testator
Strictly speaking, the attestation clause is not part of the will. That is why the
marginal signature of the testator, is not needed in that page which solely
contains the attestation clause. The law merely requires that the will must be
signed on each and every page. Again, the attestation clause is not part of the
will.
What do the subscribing witnesses attest in the the attestation clause?
(1) They attest as to the genuineness of the signature of the testator
(2) They attest to the due execution of the will as embodied in the attestation
clause
What happens if there is no attestation clause?
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The absence of an attestation clause in a notarial will, makes such will void. It
cannot be cured by the testimony of witnesses.
Statements which must be found in the attestation clause:
(1) The number of pages used upon which the will is written
‣ ex. “This will consists of 10 pages, including this page where the
attestation clause is written.”
‣ that is aside from the fact that each and every page must be numbered
‣ Isn’t it a surplusage? No. This is to prevent the increase and decrease in
the pages of the will.
AZUELA VS. CA
GR 122880, April 12, 2006
Facts: Felix Azuela filed a petition for the probate of the notarial will of
Eugenio Igsolo which was notarized on June 10, 1981. The will had 2 pages
and was writen in Filipino. The attestation clause in the will is as follows:
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa
sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat
dahon ng kasulatan ito.
Petitioner Azuela thus argues that under Art. 805 of the CC that the number
of pages used in a notarial will be stated in the attestation clause is merely
directory, rather than mandatory, and therefore susceptible to substantial
compliance.
Issue: Is the will valid?
Ruling: THE WILL IS INVALID.
1. THE ATTESTATION CLAUSE FAILS TO STATE THE NUMBER OF PAGES OF
THE WILL. There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the
testation clause. Yet, the blank was never filled in.
Purpose of the numbering: The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets
such removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets or pages.
If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended with much
greater difficulty.
Petitioner cites Singson vs. Florentino and Taboada vs. Hon. Rosal where the
Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will.
THE CASES CITED ARE NOT APPLICABLE TO THIS CASE. In Singson vs.
Florentino, while the attestation clause does not state the number of sheets
or pages upon which the will is written, the last part of the body of the will
contains a statement that it is composed of 8 pages, which circumstance
takes the case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations. In Tabaoda vs. Rosal, it was discernible from the entire will
that it is really composed of only 2 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 . In this
case, the number of pages used in the will is not stated in any part of the
Will.
First Exam
SUBSTANTIAL COMPLIANCE RULE UNDER ART. 809 HAS A MORE LIBERAL
CONSTRUCTION WITH REGARD TO THE INTERPRETATION OF THE LEGAL
FORMALITIES REQUIRED IN THE EXECUTION OF THE ATTESTATION CLAUSE
IN WILLS. JBL Reyes says: The rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in the
probate proceedings.
Thus, the Court has ruled in Caneda (wherein the Court refused to
allow the probate of a will whose attestation clause failed to state
that the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other, to wit:
It must be stated that the rule, as it now stands, is those omissions
which can be supplied by an examination of the will itself, without
the need of restorting to extrinsic evidence, will not be fatal and
correspondingly, would not obstruct the allowance to the 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. Thus, a
failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be
checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one anothers presence
should be considered a fatal flaw since the attestation is the only
textual guarantee of compliance.
THE FAILURE OF THE ATTESTATION CLAUSE TO STATE THE NUMBER OF
PAGES ON WHICH THE WILL WAS WRITTEN REMAINS A FATAL FLAW,
DESPITE ART. 809.
1. 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. The failure to state the number of
pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed
to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However, in
this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
2. Art. 809 should not deviate from the need to comply with the formal
requirements as enumerated under Art. 805.
Note:
What was the contention with respect to the blank which should have
contained the number of pages? That the will is void because of the failure
of the attestation clause to state the number of pages in the will.
What was the defense of the proponents of the will? That the number is
directory because it can be susceptible to the substantial compliance rule. If
the omission is supplied by the will itself, then the will is valid pursuant to
the substantial compliance rule. Because also, by placing the blank, there
was an intention to fill it up.
What is the purpose of the need to state the number of the pages? To
safeguard the will against possible interpolation or omission of one or some
of its pages. To prevent any increase or decrease in the pages.
This cannot be cured under the principle of substantial compliance because
the principle of substantial compliance applies only if the defect is curable
by intrinsic evidence. There is nothing in the will which supplies as to the
total number of pages. Thus, this still remains to be a fatal defect.
How about in the case of Matter of Petition for the Probate of the will of
Lopez?
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MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE LOPEZ VS. RICHARD LOPEZ
GR 189984, November 12, 2012
Facts: Enrique Lopez died on June 21, 1999, leaving his wife (Wendy Lopez)
and their 4 legitimate children (Petitioner Richard, and respondenents Diana
Lopez, Marybeath de Leon and Victoria Tuazon) as compulsory heirs. Before
Enrique’s death, he executed a Last Will and Testament on August 10, 1996
and constituted Richard as his executor and administrator.
Richard filed a petition for the probate of his father's last will. This was
opposed by Marybeth and Victoria.
RTC: disallowed the probate of the will for failure to comply with Art. 805
which requires a statement in the attestation clause of the number of pages
used upon which the will was written. While Art. 809 of the CC requires mere
substantial compliance of the form laid down in Art. 805, the rule only
applies if the number of pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required. The acknolwedgement
portionof the will states that the will consists of 7 pages, when the will
consists of 8 pages.
CA: The failure to state the number of pages of wthe wil in the attestation
clause was fatal. It noted that while Article 809 of the Civil Code sanctions
mere substantial compliance with the formal requirements set forth in
Article 805 thereof, there was a total omission of such fact in the attestation
clause. Moreover, while the acknowledgment of the will made mention of “7
pages including the page on which the ratification and acknowledgment are
written,” the will had actually 8 pages including the acknowledgment portion
thus, necessitating the presentation of evidence aliunde to explain the
discrepancy.
Issue: Is the will valid?
Ruling:
THE LAW IS CLEAR THAT THE ATTESTATION MUST STATE THE NUMBER OF
PAGES USED UPON WHICH THE WILL IS WRITTEN. The purpose of the law is
to safeguard against possible interpolation or omission of one or some of its
pages and prevent any increase or decrease in the pages.
RICHARD FAILED TO SUBSTANTIALLY COMPLY WITH THE FORMAL
REQUISITES. The statement in the Acknowledgement portion fo the subject
last will and testament that it "consists of 7 pages including the page on
which the ratification and acknowledgement are written" cannot be deemed
substantial compliance. The will actually consists of 8 pages including its
acknowledgement which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence
aliunde.
JBL Reyes says: The rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the
signatures appear in each and evergy page; whether the subscribing
witnesses are 3 or the will was notarized. All these are facts that the
will itself can reveal, and defects or even omissions concerning them
in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate
proceedings.
Note: In this case, the attestation clause stated that the will consisted of 7
pages including that which embodied the ratification and acknowledgement.
However, the will actually had 8 pages. The principle of substantial
compliance cannot be applied because extrinsic evidence is needed to cure
the defect. Nowhere in the will does it state that the total number of pages is
8.
In the case of Taboada vs. Rosal, just in the case of Lopez, there was no
statement in the attestation clause as to the total number of pages. That
would have been a fatal defect because it does not comply with Art. 805.
However, in the acknowledgement portion, which stated that the will
consisted of 2 pages including that page which contained the
acknowledgement portion. That statement is sufficient to supply the
omission in the attestation clause. Even if there was no statement in the
attestation clause as to the total number of pages, the acknowledgement
portion stated such fact. It is curable, under the principle of substantial
compliance.
This is different from the case of Lopez because in Lopez the
acknowledgement portion still stated the wrong number of pages. The
discrepancy was not cured.
TABOADA VS. ROSAL
GR L-36033, November 5, 1982
Facts: The petition of probate of Dorotea Peres was filed before the CFI of
Southern Leyte by Apolonio. The alleged last will was written in Cebuano-
Visayan dialect, and constists of two pages. The first page contains the
entire testamentary dispositions and is signed at the end or bottom of the
pages by the etstratrix alone and at the left hand margin by the 3
instrumental witnesses. The second page which contains the attestation
clause and the acknowledgement is signed at the end of the attestation
clause byt eh 3 attesting witnesses and at the left hand margin by the testa
trix.
CFI: denied the probate of the will of Dorotea Perez for want of a formality in
its execution.
According to Judge Rosal, for a notarial will to be valid, not only the testatrix, but also the
subscribing witnesses must sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting witnesses to a will attest not merely
the will itself but also the signature of the testator. It is not sufficient compliance to sign
the page, where the end of the will is found, at the left hand margin of that page.
Taboada maintains that Art. 805 does not make it a requirement that the signatures of
the subscribing witnesses should be located at the end of the wig after the signature of
the testatrix.
Issue: For the validity of a formal notarial will, does Art. 805 of the CC
require that the testatrix and all the 3 instrumental attesting witnesses sign
at the end of the will and in the presence of the testatrix and of one
another?
Ruling: NO.
ART. 805 PROVIDES THAT THE WILL MUST BE SUBSCRIBED OR SIGNED AT ITS END BY
THE TESTATOR HIMSELF OR BY THE TESTATOR’S NAME WRITTEN BY ANOTHER PERSON
IN HIS PRESENCE, AND BY HIS EXPRESS DIRECTION, AND ATTESTED AND SUBSCRIBED
BY 3 OR MORE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF ONE
ANOTHER. It must be noted that the law uses the terms attested and subscribed
Attestation consists in witnessing the testator's 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.
THE WILL WAS SUBSCRIBED IN A MANNER WHICH FULLY SATISFIES THE PURPOSE OF
THE IDENTIFICATION.
1. 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.
2. 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
3. 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"
4. Judge Pamatian even said that were it not for the defect in the place of the
signatures of the witnesses, the testimony is sufficient to establish the validity of
the will.
5. The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions, especially so so when the will
was properly Identified by subscribing witness Vicente Timkang to be the same will
executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.
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***THE ATTESTATION CLAUSE WHICH FAILED TO STATE THE NUMBER OF
PAGES USED IN WRITING THE WILL IS NOT A FATAL DEFECT BECAUSE IT IS
IS DISCERNIBLE FROM THE ENTIRE WIF THAT IT IS REALLY AND ACTUALLY
COMPOSED OF ONLY 2 PAGES DULY SIGNED BY THE TESTATRIX AND HER
INSTRUMENTAL WITNESSES. The first page 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”.
Ruling in Singson vs. Florentino and Icasiano vs. Icasiano was applied.
(2) The fact that the testator signed the will and every page thereof or caused
some other person to write his name under his express direction
‣ take note that while the signing of by another person in behalf of the
testator and under his express direction, must be stated
‣ the law merely requires that it state that the will was signed under
express direction and
‣ if it was omitted that it was done within his presence, it is acceptable
‣ so even if the fact that the proxy signed the will in the presence of the
testator and such was not stated in the attestation clause, it is
acceptable (of course kailangan under his express direction)
Going back to the case of Garcia vs. Lacuesta, where the testator Antelo
Mercado’s name was written by the lawyer and Antelo affixed a cross
beside his name. There was no evidence that he intended to be bound by
the mark or whether that was his customary signature. That being the case,
the cross was just disregarded. It is as if Antelo Mercado did not sign his
will. Instead, the will was deemed to be signed by his lawyer under his
express direction and in his presence — Such act is valid. However, this fact
was not expressed in the attestation clause. Consequently, the failure to
state that the signature was affixed by a third person under the express
direction of the testator is a defect which is fatal. The will was disallowed
for probate.
(3) The signing of the testator or by the person requested by him was in the
presence of the instrumental witnesses.
(4) That the instrumental witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
‣ the omission that it was signed/witnessed …. is a fatal defect
‣ it must be stated that the witnessess witnessed and signed the will…
In the case of Abada vs. Abaja, it is not necessary that you really have to copy
verbatim the letter of the law. In that case, the attestation clause said
“Subscribed and professed by the testator Alipio Abada as his last will and
testatment. In our presence, the testator having also signed it in our
presence on the left margin of each and every one of the pages of the same.”
With respect to the witnesses it stated: “In his witness, everyone of us also
signed in our presence and of the testator.” The SC said: precision of
language in the drafting in an attestation clause is desirable. However it is
not imperative that a parrot like copy of the words of the statute be made. It
is sufficient if from the language employed it can be reasonable be deduced
that the attestation clause fulfills what the law expects of it.
Since it could be gathered that the testator signed in the presence of
the witnesses and the witnesses also witnessed and signed in the presence
of the testator and each and every one of them, it was valid.
Although I suggest that if you draft a will, you just copy Art. 805. Kung
magkamali ka, it’s very fatal. Kawawa yung mga voluntary heirs.
In the case of Azuela vs. CA, as to the issue regarding the attestation clause:
AZUELA VS. CA
GR 122880, April 12, 2006
The will was opposed on the ground that the 3 named witnesses affixed their
signature on the left-hand margin of both pages of the will but not at the
bottom of the attestation clause and the decedent’s signature did not appear
on the 2nd page of the will and that it was not properly acknowledged.
Is the will valid? No.
THE ATTESTATION CLAUSE WAS NOT SIGNED BY THE INSTRUMENTAL
WITNESSES. While the signatures of the instrumental witnesses appear on
the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the
notary public. Cagro vs. Cagro is the prevailing rule where the signatures of
the witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on
the left-hand margin. While 3 Justices considered the signature requirement
substantially complied with, a majority of 6 ruled that the attestation clase
had not been duly signed, rendering the will fatally defective. The attestation
clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation. The signatures on the left -hand margin
is not substantial compliance — only in compliance with the rule that the will
should be signed on the left- hand margin of all its pages, not with the
attestation rule.
Art. 805 segregates the requirement that the instrumental witnesses
sign each page of the will, from the requisite that the will be attested
and subscribed by [the instrumental witnesses]. The respective
intents behind these two classes of signature are distinct from each
other. The signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.
Would be different if the witnesses signed the attestation
clause itself, but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental witnesses
signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is the witnesses,
and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. The only proof in the will
that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
The witnesses failed to sign both pages of the will on the left margin, her
only signature appearing at the so-called logical end of the will on its first
page.
Note:
Was the principle of substantial compliance applied? No.
Why do the signatures have to be at the bottom of the attestation clause?
(1) The signatures at the bottom of the attestation clause signified that
the witnesses avow and own the statements made above their
signatures.
(2) To foreclose the possibility of inserting an attestation clause on a
subsequent occasion when in the first place, there was none.
If you do not put your signatures at the bottom of the attestation clause and
merely just on the margins, it would be easy to append a belated attestation
clause when there was really none in the beginning.
The will here is not valid.
What is the purpose of the signatures in the margins? For identification.
That purpose cannot serve the same purpose of the signatures being placed
below the attestation clause.
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What if the attestation clause is signed at the bottom but there are no more
signatures in the margins? The signatures in the margins are merely for
identification — the location of which does not matter since the purpose
would be served as long as the signatures are there. However, the witnesses’
signatures pertaining to the attestation clause should be located at the
bottom. This is to avow the statements made in the attestation clause.
Those signatures at the bottom can serve the purpose of identification. The
presence of the signatures at the bottom could be used to identify the will.
Thus it is better if the signatures are placed under the attestation clause
than anywhere else. Signatures placed at the bottom can satisfy both
purposes for establishing that the witnesses are referring to the statements
contained in the attestation clause itself as well as the purposes of
identification — will would still be valid even if there are no more signatures
in the margins.
This is a reiteration of the case of Cagro vs. Cagro.
Language used in the Attestation Clause
When it comes to the testator, he should know the language used in the will. It
cannot just be explained or interpreted to him. The testator does not have to know
the language used in the attestation clause. Strictly speaking, the attestation
clause is not a part of the will -- rather, it is an act of the witnesses.
With respect to the witnesses themselves, it is preferrable that they know the
language used in the attestation clause. But an interpretation or an explanation of
the contents of the attestation clause to the witnesses could be sufficient.
Let’s now go to Art. 806
ABANGAN VS. ABANGAN
40 Phil 476
This involves the probate of the will of Ana Abangan. The will consists of 2 sheets.
1st page contained all the disposition of the testatrix, duly signed at the bottom by
Montalban in the name and under the direction of the testatrix and by 3 witnesses.
The 2nd page contains only the attestation clause duly signed at the bottom by the 3
instrumental witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these omissions,
according to appellants' contention, are defects whereby the probate of the will
should have been denied. We are of the opinion that the will was duly admitted to
probate.
Issue: Is the will valid?
Ruling:
PURPOSE OF REQUIRING EVERY SHEET OF THE WILL BE SIGNED AT THE MARGIN
BY TESTATOR AND 3 WITNESSES IN THE PRESENCE OF EACH OTHER: To avoid
substitution of any of the sheets, thereby changing the testator’s dispositions.
THE SIGNATURE OF THE TESTATOR AND THE WITNESSES AT THE BOTTOM OF THE
1ST PAGE IS SUFFICIENT. By doing so, the subscription has already satisfied the
purpose of the marginal signatures which isfor identification. To require the
witnesses and the testator to sign again in the margins would be useless.
As these signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of the
sheet guaranties its authenticity, another signature on its left margin would
be unneccessary; and if they do not guaranty, same signatures, affixed on
another part of same sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
As for the 2nd page, the testator and the witnesses need not sign at the margins
because the page containing the attestation clause is not part of the will. The
testator is not required to sign. The signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are formalities
not required by the statute. Moreover, referring specially to the signature of the
testatrix, we can add that same is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the attestation clause and
is signed also at the bottom by the three witnesses, it is not necessary that both
sheets be further signed on their margins by the testator and the witnesses, or be
paged.
BALONAN VS. ABELLANA
109 Phil. 359
FACTS: The will of Anacleta Abellana is sought to be probated. The will was written in
Spanish language and consists of 2 typewritten pages. The fist page was signed by
Juan Bello and under his name appears typewritten “for Anacleta Abellana.” On the
2nd page, appears the signatures of the 3 instrumental witnesses, at the bottom of
which appears the signature of the notary public. The witnesses also signed the 1st
page on the margins. 2nd page contained the signature of Juan Bello under whose
name “for Anacleta Abellana”
ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement
"Por la Testadora Anacleta Abellana..., Ciudad de Zamboanga," comply with the
requirements of law prescribing the manner in which a will shall be executed?
RULING: YES. It is unimportant whether the person who writes the name of the
testatrix signs his own or not. As long as it clearly appears that the name of the
testatrix was sined at her express direction. (Barut vs. Cabacungan, Caluya vs.
Domingo, Garcia vs. Lacuesta)
ABAYA VS. ZALAMERO
10 Phil. 357
FACTS: This involves the probat eof the will of Juan Zalamero. The will was written in
Tagalog. The opposition alleged that the will had not been executed and signed in
accordance with law. The petition for probate It was denied.
It is shown by evidence and by the will itself that the testator requested one of the
witnesses to the will to write the surname of Juan Zalamero, and that he put a cross
between them and a note stating that what had been written before the name and the
surname of Juan Zalamero, with the cross placed at the foot thereof was his
testament and directed by him — in the presence of the 3 witnesses.
ISSUE: Is the will valid?
RULING: YES. The will clearly stated (1) the reason why it was not signed by the
testator himself (2) the request he made to the witness Zaguirre — a repetition
thereof was not necessary. The fact need not be stated again: that this same witness,
upon being requested, wrote with his own hand the name and surname of the
testator, who afterwards placed the cross between them, all of which was written
immediately after the said name and surname of the testator and the cross made by
him, and the same was subscribed by the three witnesses in the manner provided by
law.
The essential requisites prescribed by the above-mentioned section 618
of the law have been complied with, namely, that three witnesses were present at the
execution of the will of Juan Zalamero at the date mentioned therein; that they heard
his statement that the said instrument, written and drawn up under his direction,
contained his last will; that they saw and witnessed when, at the express request of
the testator, and under his direction, the witness, Mariano Zaguirre, wrote at the foot
of the will the name and surname of Juan Zalamero, and when the latter put the cross
between his written name and surname, each of the witnesses subscribing it at the
time and in the presence of each other.
GABRIEL VS. MATEO
51 Phil. 216
FACTS: This involves the probate of Florencia Mateo. The will was composed of 2
sheets. It was signed by the testatrix and 3 witnesses on the left margin of each of
the sheets, by the testatrix alone at the bottom, and by the 3 witnesses after the
attesttation clause.
The testatrix from girlhood knew how to sign her name and did so with her right
hand; but as the right side of her body later became paralyzed, she learned to sign
with her left hand and for many years thereafter, up to the time of her death, she used
to sign with that hand. Opponents allege that Florencia Mateo did not sign this will.
(1) the direction of the signature of testator was upwards to avoid writing on
the signature of Felicisimo Gabriel
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(2) it was alleged that witnesses signed before the testatrix
(3) different kinds of ink was used by the testatrix in her signature
ISSUE: Is the will valid?
RULING: YES. At all events, even admitting that there is a certain question as to
whether the attesting witnesses signed before or after the testatrix, or whether or not
they signed with the same pen and ink, these are details of such trivial importance,
considering that this will was signed two years before the date on which these
witnesses gave their testimony, that it is not proper to set aside the will for this
reason alone.
PAYAD VS. TOLENTINO
GR 42258, September 5, 1936
Facts: Leoncia Tolentino’s will was prepared by Atty. Almario on Sept 7, 1933. Therein
she bequeathed her property to Payad as compensation for his diligent and faithful
services rendered to her.
The will was written by Atty. Almario in his own handwriting, and was written in
Spanish because he had been instructed to do so by the testatrix. It was read to her
in the presence of Pedro Cruz, Jose Cruz and Perfecto Ona and other persons who
were then pesent. Leoncio approved all the contents of the document and requested
Atty. Almario to write her name where she had to sign by means of her thumbmark
(because she did not have enough strength to hold a pen.) Atty. Almario wrote
Leoncia’s name on 3 pages composing the will and Leoncia placed her thumbmark
between her name and surname. Atty. Almario signed the three pages of the will in
the presence of the testatrix and also of Pedro Cruz, Jose Cruz and Perfecto Ona who
signed it.
Aquilina Tolentino contends that the probate of the will of Leoncia Tolentino should
be allowed on the ff. grounds:
1) testatrix did not personally place her thumbmark on her alleged will;
2) testatrix did not request Atty. Almario to write her name and surname on
the spaces of the will where she should place her thumbmarks;
3) the will was not signed by testatrix on the date indicated
4) testatrix never made the qill
5) on the date the will was excuted, the testatrix was no longer in a physical
or mental condition to make it.
Rodriguez and Quisonia testified that they had not seen Atty. Almario in the morning
of Sept 7, 1933 in the house of Leoncia. The first time they saw him was on Sept 8
when Leoncia was already dead, Gliceria Quisonia stating that on that occasion
Almario arrived there accompanied only by woman named Pacing. They did not state
that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L.
Ona, the instrumental witnesses of the will. Said two witnesses, however, could not
but admit that their room was situated at the other end of the rooms occupied by the
deceased herself and by the petitioner Victorio Payad, and that their said room and
that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia
saw the deceased only once on the 7th and twice on the 8th, and that Julian
Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th
of said month. Gliceria Quisonia further stated that in the morning of September 7th,
she prepared the noonday meal in the kitchen which was situated under the house.
Both also testified that on the 7th, the testatrixx was already so weak that she could
not move and that she could hardly be understoof because she could no longer
enunciate. Thus making it absolutely impossible for her to make any will. De Leon ,
another witness testified that Leoncia could not even open her eyes or make herself
understood.
Issue: Is the will valid?
Ruling:
Motion for Reconsideration denied.
LEONCIA TOLENTINO, NOTWITHSTANDING HER ADVANCED AGE OF 92, WAS IN
GOOD HEALTH UNTIL SEPT 1, 1933. She only slight cold on said date for which
reason she was visited by her physician, Dr. Florencio Manuel. Said physician again
visited her three or four days later and found her still suffering from said illness but
there was no indication that she had but a few days to live. She ate comparatively
well and conserved her mind and memory at least long after noon of September 7,
1933. She took her last nourishment of milk in the morning of the following day,
September 8, 1933, and death did not come to her until 11 o'clock sharp that
morning.
IT IS NOT STRANGE THAT THE 2 WITNESSES DID NOT SEE THE TESTATRIX. In order
to be able to see her and also Almario and the instrumental witnesses of the will, on
that occasion, it was necessary for them to enter the room where the deceased was,
or at least the adjoining room where the will was prepared by Attorney Almario, but
they did not do so.
THE TESTIMONY OF THE WITNESSES ARE NOT SUFFICIENT TO OVERTHROW OR
DISCREDIT THE TESTIMONY OF THE PETITIONER-APPELLANT OR THAT OF ATTY.
ALMARIO AND THE 3 INSTRUMENTAL WITNESSS. The physician of the deceased and
accountant Ventura Loreto who are 2 disinterested witnesses, testified to the effect
that 3 or 4 days before the death of Leoncia, they visited her in her home and found
her not so ill as to be unable to move or hold a conversation. They stated that she
spoke to them intelligently; that she answered all the questions which they had put to
her, and that she could still move in spite of her weakness.
Aquilina filed a motion for new trial because (1) before the deceased died, she left a
letter signed by herself, placed in a stamped envelope addressed to Yangco with
instructions not to open it until she dies; (2) therein the deceased transfer all her
property to Yangco. Thus the deceased could not have made the will in question. Tht
she did not hae to inform the court of the newly discovered evidence because the
judgement of the lower court was favorable to her.
MOTION FOR NEW TRIAL IS DENIED.
1. The new evidence is not of the nature that would warrant a new trial.
1. The affidavit of Atty. Cortes is neither material nor important — it is simply
hearsay or at most corroborative evidence
2. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would,
in the eyes of the law, be considered important or material evidence but
this court has not the letter in question before it, and no attempt was ever
made to present a copy thereof.
3. The affidavit of Atty. Viola or testimoney he may give pursuant thereto is
not more competent that Atty. Cortes, becaue granting that he was called
by Victorio Payad to help Leoncia to make her will on Sept 5, the deceased
was almost unconcscious, unintelligible and could not speak, does not
necessarily mean that on teh day she made her will, 7th, she had not
recovered consciousness
4. if the oppositor decided not to call Atty. Viola to testify as a witness in her
favor, it might have been because she considered his testimony
unimportant and unnecessary.
2. At the present stage of the proceedings, it is already too late to clim that what
Atty. viola may not testify is a newly discovered evidence.
CAGRO VS. CAGRO
GR L-5826, April 29, 1953
Facts: Pelagio Cagro, appellant insists that the will of Vicente Cagro is fatally
defective because its attestation clause is not signed by the attesting witnesses.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
Issue: Is the will valid?
Ruling:
THE WILL IS VOID. The position of the appellant is correct. The attestation clause is
'a memorandum of the facts attending the execution of the will' required by law to be
made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their participation.
THE SIGNATURES OF THE 3 WITNESSES ON THE LEFT-HAND MARGIN DOES NOT
CONFORM SUBSTANTIALLY TO THE LAW. The signatures in the left-hand margin are
in compliance with the legal mandate that the will be signed on the left hand margin
of all its pages. If an attestation clause not signed by the 3 witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the
witnesses.
NAYVE VS. MOJAL
47 Phil 152
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notarized, whether a jurat or acknowledgement, become public documents — So,

IN RE ESTATE OF SAGUINSIN
they can be secured by anyone who knows about the doc number, page number —
41 Phil. 875
they can go to the Clerk of Court and secure a copy.

However, wills are personal to the testator. Wills are confidential. Even under the
AVERA VS. GARCIA Rules of Court, wills are an exception to the rule that all documents acknowledged
42 Phil. 145 before a notary public are public documents. Wills, even acknowledged before a
notary public do not become public documents. That is why notary publics are not
required (although they can) to retain a copy of a will or to file it with the clerk of
ESTATE OF TAMPOY VS. ALBERASTINE court.
February 25, 1960
What is an acknowledgement? That is discussed in the case of Azuela.

ALDABA VS. ROQUE

AZUELA VS. CA
43 Phil. 378
GR 122880, April 12, 2006

Ruling:
TENAFRANCIA VS. ABAJA A NOTARIAL WILL THAT IS NOT ACKNOWLEDGED BEFORE A NOTARY PUBLIC BY THE
87 Phil 139 TESTATOR AND THE WITNESSES IS FATALLY DEFECTIVE, EVEN IF IT IS SUBSCRIBED
AND SWORN TO BEFORE A NOTARY PUBLIC.
1. The importance of the rule under Art. 806 is emphasized as it is segregated from
LEYNEZ VS. LEYNEZ the other requirements under Art. 805.
68 Phil. 745 2. Here, the notary public, Bautista wrote Nilagdaan ko at ninotario ko ngayong
ika-10 ng Hunyo, 1980 dito sa Lungsod ng Maynila. This is cannot be construed as
an acknowledgement. An acknowledgement is the act of one who has executed a
deed in acknowledging before some competent officer or court and declaring it
JALLORES VS. INTERINO to be his act or deed. It involves an extra step undertaken whereby the signor
GR L-42463 actually declares to the notary that the executor of a document has attested to
the notary that the same is his/her free act and deed.
3. The sentence affixed of the notary public could be a jurat1, however, even if it was
such, the will would still remain invalid, as the express requirement of Art. 806 is
UY COQUE VS. SIOCA
that the will be acknowledged, and not merely subscribed and sworn to. The will
<>
does not present any textual proof, much less one under oath, that the decedent
and the instrumental witnesses executed or signed the will as their own free act
or deed. The acknowledgment made in a will provides for another all-important
SAÑO VS. QUINTANA
legal safeguard against spurious wills or those made beyond the free consent of
<>
the testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
GUMBAN VS. GORECHO their own free act or deed. Such declaration is under oath and under pain of
50 Phil 30 perjury, thus allowing 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
QUINTO VS. MORATA certain mindset in making the testamentary dispositions to those persons he/
<> she had designated in the will.

Note:
CANEDA VS. CA The tenor of the acknowledegment should be something like this: "Before me, 11th
222 SCRA 781 day of August 2017, in the City of Davao, personally appeared Juan dela Cruz who
executed to me his driver's license required to secure a goverment ID a notary public.
Known to be and known to be the same person who appear and he acknowledged to
me that the document was his own free and voluntarily act and will.”

Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of
Court.
So the notary public really coerces them into admitting that this was done by them
voluntarily. It is enough that is under oath, it has to be acknowledged.
In this case, there was nothing which states anything about the witnesses and the
testator having executed the document freely and voluntarily.

ACKNOWLEDGEMENT BEFORE A NOTARY PUBLIC Can a notary public be an attesting witness?

This is another requirement. Although the law says every will, this only pertains to
notarial wills. Holographic wills do not need an acknowledgement.
Under the Notarial Law,
if you notarize a document. It is required that you retain 2 copies. One copy for
your file and another will be submitted to the clerk of court.
The clerk of court will keep your document for a certain number of years, and
eventually he will have to forward these documents to the archives office. The
purpose here is to make these documents, public documents. Documents
As we discussed before in the case of Azuela, the purpose of the
acknowledgement is to be sure that the document was executed voluntarily
by the testator with respect to the will and the witnesses with respect to the
attestation clause.
What if one of the witnesses is also the notary public before whom the will is
acknowledged? We have the case of Cruz vs. Villasor. The only question here is
whether the will was valid. The SC said that the notary public before whom the will
was acknowledged cannot be one of the attesting witnesses. Why?
(1) Because it would be a physical impossibility

1 Jurat is that part of an affidavit where the notary certifies that before him/her the document was subscribed and sworn to by the executor.

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- when you acknowledge a document before the notary public, you
avow that the document was voluntarily executed by the testator
- a notary public cannot possibly avow a document before himself
and force himself that he voluntarily made the document — it is
absurd
(2) Because of conflict of interest
- The function of the notary public is to guard against any illegal or
immoral arrangements and this function will be defeated if he was
one of the attesting witnesses.
- If the notary public was be one of the attesting witnesses, he would
be interested in sustaining the validity of the will — because it
directly involves himself and the validity of his own act.
- Another function of the notary public is to ensure that there was no
coercion and that the will was regularly and validly executed.
What is the consequence if one of the witnesses is the notary public?
If there are only 3 witnesses, and one of them is the notary public = WILL IS VOID
- since the notary public is disqualified, there are only 2 witnesses left
which is short of the requisite number of witnesses. (3 is required)
If there are 4 witnesses, and one of them is the notary public = WILL IS VALID.
- even if we exclude the presence of the notary public as a witness, there
would still be 3 witnesses
- here we just disregard the notary public as one of the witnesses, but he
can still validly acknowledge it
Remember: The fact that the notary public before whom the will was acknowledged
is also one of the attesting witnesses only affects his qualification as a witness. It
does not affect his qualification as a notary public.
Is the notary public, before whom the will was acknowledged, required to know the
contents of the will?
GR: There is no such requirement.
As long as he ensures that the testator voluntarily executed the will
and the witnesses also voluntarily executed the attestation clause.
It is not required that he should read the will or know its contents.
E: In case of blind testators which we will discuss in Art. 808.
Under the LGC, it is required that documents acknowledged before notary publics
should bear a documentary stamp.
Will the failure to affix a documentary stamp in the acknowledgement of the will
render it void? The SC ruled in Gabucan vs. Judge Manta, such failure will not affect
the validity of the will.
GABUCAN VS. JUDGE MANTA
21 SCRA 1056, January 28, 1980
Facts: The petition for the probate of the notarial will of Rogaciano Gabucan was
dismissed by the CFI on the groung that it did not bear the 30-centavo documentary
stamp thus not admissible in evidence. It cited Sec. 238 of the Tax Code, now Section
250 of the 1977 Tax Code, to wit:
Sec. 238. Effect of failure to stamp taxable document. — An instrument,
document, or paper which is required by law to be stamped and which has
been signed, issued, accepted, or transferred without being duly stamped,
shall not be recorded, nor shall it or any copy thereof or any record of transfer
of the same be admitted or used in evidence in any court until the requisite
stamp or stamps shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his
jurat or acknowledgment to any document subject to documentary stamp
tax unless the proper documentary stamps are affixed thereto and cancelled.
According to it, the the notarial acknowledgement of the said will is subject to the 30-
centavo documentary stamp tax fixed in Sec. 225 of the Tax Code, now section 237 of
the 1977 Tax Code.
Judge Manta did not reconsider even if there was a documentary stamp attached to
the original of the will.
Issue: Is the will valid if it had no documentary stamp affixed to it?
Ruling: YES. CFI ERRED IN DISMISSING THE CASE. it was held that the documentary
stamp may be affixed at the time the taxable document is presented in evidence (Del
First Exam
Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a
documentary stamp, the court should have allowed plaintiff's tender of a stamp to
supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in
Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a
document does not invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403,
405-6.)
In the case of Enchavez vs. Dozen,
ECHAVEZ VS. DOZEN CONSTRUCTION AND DEVT CORP AND THE ROD OF CEBU
CITY
GR 192916, Oct 11, 2010
Facts: Vicente Enchavez donated Lot No. 1956-A and Lot No. 1959 to Manuel
Enchavez through a Deed of Donation Mortis Causa. The donation was accepted by
Manuel. However, in March 1986, Vicente executed a Contract to Sell over the same
lots in favor fo Dozen Construction and Decelopment Corporation. In October 1986,
they executed two Deeds of Absolute Sale over the same properties.
November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s nephew filed a petition
for the settlement of Vicente's intestate estate. On the other hand, Manuel filed a
petition to approve Vicente's donation mortis causa in his favor and an action to annul
the contracts of sale.
RTC: dismissed the petition. The execution of a Contract to Sell in favor of Dozen
Corp, after Vicente donated the lots to Manuel was an equivocal act that revoked the
donation.
CA: affirmed. Deed of donation in favor of Manuel being one in mortis causa, must
have complied with the formalities for the validity of wills. Hence, since it did not
contain an attestation clause, it was void.
Manuel claims that CA should have applied the rule on substantial compliance in the
construction of a will to Vicente's donation mortis causa. The strict construction of a
will was not warranted in the absence of any indication of bad faith, fraud, or
substitution in the execution of the Deed of Donation mortis causa. The CA ignored
the Acknowledgement portion of the deed of odonation which contains the import
and purpose of the attestation clause required in the execution of wills.
BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu,
personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094
issued on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same
person who executed the foregoing instrument of Deed of Donartion Mortis
Causa before the Notary Public and in the presence of the foregoing three (3)
witnesses who signed this instrument before and in the presence of each
other and of the Notary Public and all of them acknowledge to me that the
same is their voluntary act and deed
Issue: Is the Deed of Donation void?
Ruling: CA ruling affirmed. Void.
A DONATION MORTIS CAUSA MUST COMPLY WITH THE FORMALITIES PRESCRIBED
BY LAW FOR THE VALIDITY OF WILLS, OTHERWISE THE DONTATION IS VOID AND
WOULD PRODUCE NO EFFECT. Articles 805 (which refers to the attestation clause)
AND 806 (refers to the acknowledgement) must have been applied. The purported
attestation clause embodied in the Acknowledgement portion does not contain the
number of pages on which the deed was written. The exception in Singson vs.
Florentino and Taboada vs. Hon Rosal, cannot be applied to this case. In those cases,
the Court found that although the attestation clause failed to state the number of
pages upon which the will was written, the number of pages was stated in one
portion of the will. This is not the factual situation in the present case.
EVEN IF THE ACKNOWLEDGED CLAUSE EMBODIED WHAT THE ATTESTATION CLAUSE
REQUIRES, AN ATTESTATION CLAUSE AND AN ACKNOWLEDGEMENT CANNOT BE
MERGED IN ONE STATEMENT. Since the requirements of attestation and
cknowledgement are embodied in 2 separate provisions of the CC (Art. 805 which
refers to the attestation and 806 which refers to the acknowledgement clause)
indicates that the law contemplates 2 distinct acts that serve different purposes. An
acknowledgement is made by one executing a deed, declaring beofre a competent
offier or court that the deed or act is his own. On the other hand, the attestation of a
will refers to the act of the instrumental witnesses themselves who certify to the
execution of the instrument before them and to the manner of its execution. Although
the witnesses in the present case acknowledged the execution of the Deed of Donation
Mortis Causa before the notary public, this is not the avowal the law requires from the
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instrumental witnesses to the execution of a decedents will. An attestation must state
all the details the third paragraph of Article 805 requires. In the absence of the required
avowal by the witnesses themselves, no attestation clause can be deemed embodied in
the Acknowledgement of the Deed of Donation Mortis Causa.
Note:
Obviously there was no attestation but there was an acknowlegement.
What was their allegation with respect to what was contained in that
acknowledgement? That even if there was no attestation clause, it was included
already in the acknowledgement portion.
SC said that you cannot merge the attestation clause and the acknowledgement
portion. They are intended to be distinct requirements thus embodied in separate
provisions. Art. 805 refers to the attestation, Art. 806 refers to the acknowledgement.
Even if we assume that they can be merged — there was actually no statement at all
in the acknowledgement portion which can be considered as sufficient compliance to
the statements required by law.
(i.e. it should state the total number of pages in which the will is written, that
the testator signed the will in the presence of the witnesses, that the
witnesses signed the will and attested the will in the presence of the testator
and each and every one of them.)
But still, SC said that you cannot merge the attestation clause and the
acknowledgement portion.
As we already discussed before, if is it intended to be a disposition mortis causa, it
has to be in the form of a will — it cannot just be in a form of a deed of donation.
GARCIA VS. GATCHALIAN
GR L-20357, November 25, 1967
Facts: This involves the probate of the will of Pedro Reyes Garcia. He died at age 71,
leaving no forced heirs. Petitioner Garcia filed a petition for probate wherein he was
instituted as the sole heir.
This was opposed by Gatchalian, Camins, Cosca, Tubog, Talanays on the ground that
the will was procured by fraud and that the deceased did not intend the instrument
signed by him to be as his will; and that deceased was physically and mentally
incapable of making a will at the time of the execution. It was denied by the CFI of
Rizal on the ground that the attesting witnesses did not acknowledge the will before
the notary public.
An examination of the document shows that the same was acknowledged before the
notary public by the testator but not by the instrumental witnesses.
Issue: Whether the will is void because the witnesses did not acknowledge it before
a notary public.
Ruling: THE WILL IS VOID. We have held heretofore that compliance with the
requirement contained in the above legal provision to the effect that a will must be
acknowledged before a notary public by the testator and also by the witnesses is
indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L-11948, April
29, 1959). As the document under consideration does not comply with this
requirement, it is obvious that the same may not be probated.
JAVELLANA VS. LEDESMA
GR L-7179, June 30,1955
Facts: This for the probate of the will and codicil of Apolinaria Ledesma which was
written in the Visayan dialect, witnessed by Ramon Tabiana, Gloria Montinola de
Tabiana and Vicente Yap and executed on March 30, 1950 and May 20, 1952. It was
opposed on the following grounds: that the testatrix did not have testamentary
capacity and that the dispositions were procured through undue influence.
Nevertheless, the CFI admitted for probate the documents.
Now, Matea Ledesma who is the sister, appealed before the SC, insisting that
thedocuments were not exeucted n conformity with law. She argues that the CFI
erred in refusing credence to her witnesses Pagerogao and Allado, Cook and driver,
respectively of the deceased. Both testified that on March 30, 1950, they saw and
heard Vicente Yap informing the deceased that he had brought the "testamento" and
urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested
that she could not go, because she was not feeling well; and that upon Yap's
insistence that the will had to be signed in the attorney's office and not elsewhere,
the deceased took the paper and signed it in the presence of Yap alone, and returned
it with the statement that no one would question it because the property involved
was exclusively hers.
Issue: Is the will valid?
Ruling: YES.
THE WILL IS EXECUTED IN FRONT OF THE WITNESSES.
1. The Court did not give credence to the testimony of the yaya and the driver
because it was contradictory to the testimony of the instrumental witnesses,
Yap, Tabiana and Montinola who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the house
of the decedent at General Hudges St., Iloilo City, On March 30, 1950. It is highly
unlikely and contrary to usage that the witnesses would insist that Apolinaria
should leave her house to execute a will, when all 3 witnesses could have easily
went to the testatrix's house.
2. There are fatal flaws in the yaya and driver's testimonies: (a) the cross-
examination has revealed fatal flaws in the testimony of Contestant's witnesses.
Both claim to have heard the word "testamento" for the first time when Yap used
it; and they claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is to be
remembered must first be rationally conceived and assimilated (b) the yaya was
positive that Yap brought the will and the deceased alone signed it precisely on
March 30, 1950 but she could remember no other date (c) Allado claimed to have
heard what allegedly transpired between Yap and Apolinaria from the kithcen of
the house, that was later proved to have been separated from the deceased's
quarters and standing on a much lower level, so that the conversations in the
main building could not be distinctly heard from the kithcen. — this was sought
to be cured by saying that he was upstairs but this such correction is unavailing,
since it was plainly induced by 2 highly leading questions from the counsel.
THE DISCREPANCIES IN THE TESTIMONIES OF THE INSTRUMENTAL WITNESSES
CONCERNING THE PRESENCE OR ABSENCE OF AURELIO MONTINOLA AT THE
SIGNING OF THE TESTAMENT AND THE CODICIL ARE NOT MATERIAL AND ARE
LARGELY IMAGINARY. Since the witness Mrs. Tabiana confessed inability to
remember all the details of the transaction. Neither are we impressed by the
argument that the use of some Spanish terms in the codicil and testament (like
legado, partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are of common
use even in the vernacular, and that the deceased was a woman of wide business
interests.
WHE T HER O R NOT T HE NOTARY SIGNED T HE CERT IFIC AT IO N O F
ACKNOLWEDGEMENT IN THE PRESENCE OF THE TESTATRIX AND THE WITNESSES
DOES NOT AFFECT THE VALIDITY OF THE CODICIL. Unlike the Code of 1889 (Art.
699,) the new CC does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act.
A comparison of Articles 805 and 806 of the new Civil Code reveals that
while testator and witnesses sign in the presence of each other, all that is
thereafter required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the latter
should avow to the certifying officer the authenticity of their signatures and
the voluntariness of their actions in executing the testamentary disposition.
This was done in the case before us. T
he 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
can not 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 codem die ac tempore in eadem loco", and no reversible
error was committed by the Court in so holding. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the same day or
occasion that it was executed.
Note: The acknowledgement could be done on another day.
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CRUZ VS. VILLASOR
GR L-32213 November 26, 1973
Facts: Manuel Lugay filed a petition for the probate of the will of the deceased,
Valente Cruz. This was opposed by the Agapita Cruz, the surviving spouse of the
deceased. She alleged that the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument was executed
without the testator having been fully informed of the content thereof, particularly as
to what properties he was disposing and that the supposed last will and testament
was not executed in accordance with law.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-
appellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence,
p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.
Issue: Whether the will is valid.
Ruling: THE WILL IS NOT VALID.
1. 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
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. To permit such a situation to obtain would be sanctioning a sheer
absurdity.
2. THE FUNCTION OF A NOTARY PUBLIC WOULD BE DEFEATED IF THE NOTARY
PUBLIC WERE ONE OF THE ATTESTING INSTRUMENTAL WITNESSES. His function as
a notary public is, among others, to guard against any illegal or immoral
arrangement. For them he would be interested sustaining the validity of the will as it
directly inolves him and the validity of his own act. It would place him in an
inconsitent position and the very purpose of the acknowledgement, which is to
minimize fraud would be thwarted. (there is a conflict of interest)
EFFECT: TO ALLOW THE NOTARY PUBLIC TO ACT AS 3RD WITNESS OR ONE OF THE
ATTESTING AND ACKNOWLEDGING WITNESSES, WOULD HAVE THE EFFECT OF
HAVING ONLY 2 WITNESSES TO THE WILL WHICH WOULD BE IN CONTRAVENTION
OF THE PROVIONS OF ART. 805 AND 806 WHICH REQUIRES THAT THE TESTATOR
and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.
VOID:
IF THERE ARE 3 WITNESSES AND ONE OF THEM IS THE NOTARY PUBLIC,
THE WILL IS VOID = SHORT OF THE REQUIISTE NUMBER WHICH IS 3.
VALID:
If there are 4 witnesses and one of them is the notary public, we should just
disregard the notary public. Thus, the will is valid.
First Exam
CONEJOS VS. YVES
11 C.A. Rep. 945
GONZALES VS. CA
May 25, 1979
Facts: Private Respondent Lutgarda Santiago (nieces) filed a petition for the probate
of the will of Isabel Gabriel who designated Petitioner Rizalina Gabrial Gonzales as a
the principal beneficiary and executrix. The testatrix died as a widow and without
issue, at the age of 85.
The will was typewritten in Tagalog, which appears to have been executed in Manila
on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation
clause and the acknowledgment of the notary public were written. The signatures of
the deceased Isabel Gabriel appear at the end of the will on page four and at the left
margin of all the pages. The attestation clause, which is found on page four, reads as
follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan
ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba
nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING
HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora
na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan
na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito,
at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of
each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa
kaliwang panig ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of
Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same,
under the heading "Tirahan", are their respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two
Gimpayas. Their signatures also appear on the left margin of all the other pages. The
WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of
each page.
The will provides that all expenses of the burial will be paid from her estate (wanted
to be buried in the Catholic Cemetery of Navotas); all of her obligations be paid;
legacies in specified amounts be given to her sister (Praxides) brother (Santiago) and
her nephews and nieces (Benjamin, Slaud, Rizalina, Victoria, Ester, Andres, and
Evangeline, Rudrardo, Andrea, Marcial, Numancia, Verena.
To Lutgarda Santiago, , Marcial, Numancia, Verena an surnamed Santiago. To herein
private respondent Lutgarda Santiago, who was described in the will by the testatrix
as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were bequeathed all
properties and estate, real or personal already acquired, or to be acquired, in her
testatrix name, after satisfying the expenses, debts and legacies as aforementioned.
It was opposed by Rizalina on the following gounds:
(1) not genuine
(2) not executed and attested as required by law
(3) at the time of the alleged execution of the purported will the decedent lacked
testimentary capacity due to old age and sickness
(4) the will was procured through undue and improper pressure and influence by
Lutgarda.
CFI: That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.
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CA: It allowed the probated. The will was signed and executed by the deceased
Isabel Gabrial on APril 15, 1961 in the presence of 3 attesting witnesses: Orobia,
Celso Gimpaya, Maria Gimpaya, signing and witnessing the document in the presence
of the deceased and of each other as required by law.
Rizalina opposes the probte on the groudn that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign the will in the presence of
each other. She contends that he will is void because there is no proof that the 3
instumental witnesses were credible witnesses. That the requirement in Art. 806 that
the witnesses must be credible is an absolute requirement which must be complied
with before an alleged last will and testament may be admitted to probate and that to
be a credible witness, there must be evidence on record that the witness has a good
standing in his community, or that he is honest and upright, or reputed to be
trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends that
the term "credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be credible as
required by Article 805 of the same Code. It is further urged that the term "credible"
as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wigs with respect to the qualifications of witnesses.
Issue: Whether the will was executed and attested as required by law.
Ruling:
ART. 820 PROVIDES THE QUALIFICATONS OF A WITNESS TO THE EXECUTION OF
WILLS WHILE ART. 821 SETS FORTH THE DISQUALIFICATION FROM BEING A
WITNESSES TO A WILL. There is no mandatory requirement that the witnesses testify
initially or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough
that the qualifications enumerated in Article 820 of the Civil Code are complied with,
such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from
his appearance, testimony , or competently proved otherwise, as well as the fact that
he is not blind, deaf or dumb and that he is able to read and write to the satisfaction
of the Court, and that he has none of the disqualifications under Article 821 of the
Civil Code. We reject petitioner's 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.
THE MEANING OF ‘CREDIBLE’ IS NOT THE SAME AS THE ONE USED IN THE
NATURALIZATION LAW. In the latter, it is mandatory that the petition for
naturalization must be supported by 2 character witnesses who must prove their
good standing in the community, reputation for trustworthiness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the Act
and a person of good repute and morally irreproachable and that said petitioner has
in their opinion all the qualifications necessary to become a citizen of the Philippines
and is not in any way disqualified under the provisions of the Naturalization Law
(Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testatment and
affirm the formalities attendant to the execution. Court found each of the 3
instumental witnesses to be competent and credible — supported by the
evidence found by the CA which the SC is bound to accept. Lutgarda also has
not alleged that the instrumental witnesses are disqualifie, much less that it
is shown that anyone of them is below 18 years of age, of unsound mind,
deaf or dumb, or cannot read or write.
While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires the attestation
of three or more credible witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible witness under Article
805. She says that competency is different from credibility. That there is no evidence to
show that the instrumental witnesses are credible in themselves.
It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria
Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much less the
humble or financial position of a person do not disqualify him to be a competent
testamentary witness.
As to the contention that the qualifications of the 3 or more credible witnesses
mentioned in Art. 805 are those mentioned in Art. 820. Thus in Suntay vs. Suntay the
Court held that “granting that a will was duly executed and that it was in existence at
the time of, and not revoked before the death of the testator, still the provisions of the
lost will must be clearly and distinctly proved by at least 2 credible witnesses. Credible
witnesses mean competent witnesses and not those who testify to facts from or upon
hearsay.
THE COMPETENCY OF A PERSON TO BE AN INSTRUMENTAL WITNESS TO A WILL IS
DETERMINED BY THE STATUTE, THAT IS ART. 820 AND 821. HIS CREDIBILITY
DEPEDNS ON THE APPRECIATION OF HIS TESTIMONY THAT ARISES FROM THE
BELIEF AND CONCLUSION OF THE COURT THAT THE SAID WITNESS IT TELLING THE
TRUTH. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, 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."
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. We, therefore,
reject petitioner's position that it was fatal for respondent not to have introduced
prior and independent proof of the fact that the witnesses were "credible witnesses
that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Art. 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise he shall designate two persons
to read it and communicate to him, in some practicable manner, the
contents thereof.
Here is another requirement if the testator is deaf, or deaf-mute.
There is a reading required, if he can read. If he cannot read, then he must designate 2
persons to read the contents of the will to him.
The law says : the testator shall designate 2 persons.
Although it can be recommended to him as long as the testator admits that
these 2 persons read the contents of the will to him.
There is also no requirement that these 2 persons should also be the attesting
witnesses.
There is no requirement that such be stated in the attestation clause. This can
be proved by extrinsic evidence.
Art. 808. If the testator is blind, the will shall be read to him twice; one,
by one of the subscribing witnesses and again, by the notary public
before whom the will is acknowledged.
Art. 808 talks of the situation where the testator is blind. We already discussed
before that a person who is blind can be a testator. We can still comply with the test
of presence if the signing was made in the range of the available senses.
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But a blind person cannot be a witness. They are disqualified under Art. 821.
What do we mean by a blind person under Art. 808? Should the person be in total
darkness/ cannot see at all? What is blindness contemplated by law?
GARCIA VS. VASQUEZ
32 SCRA 490
Testatrix: del Rosario
At the time of her death: 90 years old.
Contention of the oppositors: The requirement under Art. 808 was not complied with.
At the time of the tesatrix’s death, her eyesight was so poor and defective. She could
not have read her own will. Her opthalmologist testified that the testatrix was far-
sighted and that she can only see objects from a distance.
Is she blind?
THE RECORD IS CONVINCING THAT THE TESTATRIX COULD NOT HAVE PHYSICALLY
READ OR UNDERSTOOD THE ALLEGED TESTAMENT. IT SHOULD NOT BE ADMITTED
TO PROBATE. SHE IS A BLIND TESTATOR AND HER WILL SHOULD HAVE BEEN
EXECUTED IN ACCORDANCE WITH ART. 808.
1. The testimony of Doña Gliceria’s opthalmologist, who treated the deceased,
therefore have first hand knowledge of the actual condition of her eyestight, fully
establish the fact that notwithstanding the operation and removal of the
cataract in her left eye and her being fitted with aphakic lens (used by cataract
patients), her vision remained mainly for viewing distant objects and not for
reading print.
(a) the conclusion is inescapable that with the condition of her eyesight in
August, 1960, and there is no evidence that it had improved by 29
December 1960, Gliceria del Rosario was incapable of reading, and could
not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated
that she read the instrument “silently".
2. The will was made without regard for her defective eyesight
(a) the attestation clause and acknowledgment were crammed together into a
single sheet of paper, to much so that the words had to be written very
close on the top, bottom and two sides of the paper, leaving no margin
whatsoever
(b) the word "and" had to be written by the symbol" &", apparently to save on
space
3. The will was made with haste.
(a) typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or
"Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental",
and "acknowledged" for "acknowledge’’, remained uncorrected,
➡ It is difficult to understand that so important a document containing the
final disposition of one’s worldly possessions should be embodied in an
informal and untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the ability to
read the purported will and had done so.
ART. 808 PROVIDES THAT THE WILL SHALL BE READ TO HIM TWICE: ONCE BY THE
SUBSCRIBING WITNESSES AND AGAIN, BY THE NOTARY PUBLIC BEFORE WHOM
THE WILL WAS ACKNOWLEDGED. The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of reading the will himself (as when
he is illiterate), 18 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. That the aim of the law is
to insure that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly reflective of his
desire, is evidenced by the requirement that the will should be read to the latter, not
only once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testator’s) other senses.
- There is nothing in the records which show that the requirements have been
complied with.
Note:
What other evidence were considered by the SC in saying that the reading
requirement was not complied with? (Please see #2 and #3 in the digest)
How many pages were there in the will? 1 page with everything crammed in there.
In this case, even if the testator was still able to see, she was considered as a blind
testator for the reason that she could not read. Thus, Article 808 was applied.
SC was convinced that Art. 808 was not complied with. If you are disposing of your
properties through a will, you should make it at least presentable. That is your last
will and testatment.
ALVARADO VS. GAVIOLA
226 SCRA 317, September 14, 1993
Facts: On November 5, 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will at the time awaiting probate
before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final
draft of the will himself. Instead, private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four followed the reading
with their own respective copies previously furnished them.
December 9, 1977 — Brigido's holographic will was admitted to probate on December
9, 1977.
December 29, 1977 — a codicil entitled “Kasulatan ng Pagabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nob 5, 1977 ni Brigido
Alvarado” was executed changing some dispostitions in the will to generate cash for
the testator’s eye operation. Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As in the case of the notarial
will, the testator did not personally read the final draft of the codicil. Instead, it was
Gaviola who read it aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial will) and the notary public who
followed the reading using their own copies.
January 3, 1979 — a petition for probate of the notarial will and codicil was filed upon
testator’s death by Gaviola as executor
It is not disputed that the vision of Brigido on both eyes was only of “counting
fingers at 3 feet” by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
December 14, 1977.
CONTENTION OF THE OPPOSITION: at the time of the execution of the “Huling
Habilin” and the codicil, Brigido was already “blind” within the meaning of Art. 808.
The non-compliance therewith, made the will invalid.
CFI: Probate was granted.
Alvarado contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. Dr. Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either printed or handwritten matters
as of 14 December 1977, the day of his first consultation.
CA: Despite the medical testimony, it held that the testator could still read on that
day and the codicil were executed but chose not to do so because of “poor eyesight.”
Since the the testator was still capable of reading at that time, the court a quo
concluded that Art. 808 need not be complied with.
Issue: Does Brigido qualify as a “blind” testator under Art. 808?
Ruling: YES.
ART. 808 IS APPLICABLE TO BRIGIDO.
1. ALTHOUGH BRIGIDO WAS ABLE TO READ AT THE TIME HIS WILL AND CODICIL
WERE PREAPRED, THE FACT REMAINS THAT BRIGIDO DID NOT DO SO BECAUSE
OF HIS “POOR” “DEFECTIVE” OR “BLURRED” VISION MAKING IT NECESSARY
FOR GAVIOLA TO READ IT FOR HIM.
What is the rational behind the requirement of reading the will to the testator if
he is blind or illiterate? The purpose is to make the provisions thereof known
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to him, so that he may be able to object if they are not in accordance with his
wishes.
2. ART. 808 APPLIES NOT ONLY TO BLIND TESTATORS BUT ALSO TO THOSE FOR
ONE REASON OR ANOTHER ARE INCAPABLE OF READING THEIR WILLS. 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. Hence, to consider his will as validly executed and entitled to
probate, it is essential that we ascertain whether Art. 808 had been complied
with.
ART. 808 REQUIRES: If the testator is blind or is incapable of reading the will by
himself,
1) the will shall be read twice:
(a) once by one of the instrumental witnesses and
(b) again by the notary public before whom the will was acknowledged
ART. 808 WAS NOT STRICTLY FOLLOWED. It was the lawyer (Gaviola) who drafted the
8-paged will and the 5 paged codicil who read the same to Brigido, and read them
only once, not twice.
PROBATE IS ALLOWED. THERE WAS SUBSTANTIAL COMPLIANCE. 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, and when taken into account, may
only defeat the testator’s will.
1. Galviado read the testator’s will and codicil aloud in the presence of the testator,
his 3 instrumental witnesses and the notary public
2. Only after the testator affirmed that the contends corresponded with his
instructions did the testator and the instrumental witnesses signed the
documents
3. there is no evidence that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido
had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft.
4. It was not only Atty. Gaviola who read the documents on Nov 5 and Dec 29. The
notary public and the three instrumental witnesses also read the will and codicil,
albeit silently. The notary public (Atty. de la Peña) and Dr. Evidente (one of the 3
instrumental witnesses and testator’s physician) asked the testator whether the
contents of the document were of his own free will. Brigido said yes. With four
persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
Note:
Was Art. 808 compled with?
Was the spirit of the law served?
Although the will was executed in accordance with the letter of Art. 808, it was not
even the notary public who read the will — it was the lawyer. The others just read
silently with their own copies. Still, the SC said that although there should be strict
compliance, formal imperfections should be brushed aside when they do not affect
its purpose and when taken into account, may only defeat the testator’s will.
SUBSTANTIAL COMPLIANCE RULE
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of Article 805.
Art. 809 is the rule on substantial compliance or liberal interpretation.
What defects are excused?
1) Defects and imperfections in the form of attestation
2) Defects and imperfections in the language used in the attestation
For Art. 809 to apply, we have the following requisites:
(1) The defects and imperfections refer to the form of the attestation clause or
in the language used therein
(2) There is no bad faith, forgery or fraud or undue or improper pressure and
influence
(3) The will was executed and attested in substantial compliance with all the
requirements
(4) The fact of such execution and attestation is proved
If you read the letter of Art. 809, can you determine when to apply the principle of
substantial compliance and when not to apply? It is difficult if you just read Art. 809.
We have discussed cases before where SC applied this principle and in those cases,
they have always cited Justice JBL Reyes:
If the rule is so broad, that no matter how imperfect the attestation clause
happens to be, the same could be cured by evidence aliunde or extrinsic
evidence, the attestation could be of no value in protecting against fraud or
defective execution. Hence the rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required
to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate
proceedings.
Meaning: Not just any defect can be cured under the principle of substantial
compliance. What can be cured are only those defects which can be cured by
intrinsic evidence — or that which is found in the will itself (or even in the attestation
clause or the acknowledgement portion).
If you would still allow extrinsic evidence or evidence aliunde to cure a
defect, then almost any defect can be cured. There would be no sense in
prescribing the formalities since you can just cure it with the use of extrinsic
evidence. So, only those defects which can be cured by intrinsic evidence
can be allowed under the principle of substantial compliance.
Like in the case of Abada vs. Abaja, it was mentioned that there was a defect in the
attestation clause because the number of witnesses were not mentioned. The SC
applied the substantial compliance rule because just by counting the number of
signatures in the will, you will know that there are 3 witnesses. That defect can be
cured by intrinsic evidence.
In Taboada vs. Rosal, the attestation clause did not state the number of pages used in
the will. But reference to the acknowledgement would show that the will actually
consisted of 3 pages. It was mentioned therein that the document constisted of 2
pages including that page which contained the acknowledgement. That omission in
the attestation clause, is supplied by a statement in the acknowledgement portion.
We do not go out of the will.
If the defect would already require extrinsic evidence, then the defect can no longer
be cured.
Example: Attestation clause failed to state that the witnesses attested and
signed the will in the presence of the testator
Attestation clause says: “The witnesses and the testator signed the will and
each and every page thereof.”
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There is nothing which states that in the presence of the testator and of
each and everyone of them. Although the attesting witnesses can testify
that it was really and signed in their presence, but this is not allowed — that
would be introducing extrinsic evidence. This defect cannot be cured under
the substantial compliance rule.
Just take note of the other cases we discussed.
ALVARADO VS. GAVIOLA
226 SCRA 317, September 14, 1993
As to the contention that there is substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only
valid compliance or compliance to the letter and since it is admitted that neither the
notary public nor an instrumental witness read the contents of the will and codicil to
Brigido, probate of the latter's will and codicil should have been disallowed.
THE PROBATE IS ALLOWED. 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 testator’s will.
1. Galviado read the testator’s will and codicil aloud in the presence of the testator,
his 3 instrumental witnesses and the notary public
2. Only after the testator affirmed that the contents corresponded with his
instructions did the testator and the instrumental witnesses signed the
documents
3. there is no evidnce that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido
had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft.
4. It was not only Atty. Gaviola who read the documents on Nov 5 and Dec 29. The
notary public and the three instrumental witnesses also read the will and codicil,
albeit silently. The notary public (Atty. de la Peña) and Dr. Evidente (one of the 3
instrumental witnesses and testator’s physician) asked the testator whether the
contents of the document were of his own free will. Brigido said yes. With four
persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
THUS THE COURT SAID IN ABANGAN VS. ABANGAN. The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid the substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on the 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 ends, any
other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's will, must be disregarded
(emphasis supplied).
BRIGIDO ALVARADO HAD EXPRESSED HIS LAST WISHES IN CLEAR AND
UNMISTAKABLE TERMS IN HIS “HULING HABILIN” AND THE CODICIL ATTACHED
THERETO. We are unwilling to cast these aside from the mere reason that a legal
requirement intended for his protection was not followed strictly when such
compliance had been rendered unnecessary by the fact that the purpose of the law,
i.e., to make known to the incapacitated testator the contents of the draft of his will,
had already been accomplished. To reiterate, substantial compliance suffices where
the purpose has been served.
First Exam
CANEDA VS. CA
222 SCRA 781
Facts:
December 5, 1978 — Mateo Caballero, a widower, without any children and already in
the twilight years of his life, executed a will and testament at his residence in Talisay,
Cebu before 3 attesting witnesses: Labuca, Cabando and Toregosa. The testator was
assisted by his lawyer: Atty. Lumontad and a notary public, Atty. Manigos in the
preparation of the last will. It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni
G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the
testator.
A petition for probate was field by Mateo himself before the CFI. He died on May 29,
1980 even before his probate hearing was done by reason of many postponements.
Benoni Cabrera, one of the legatees in the will, sought his appointment as special
administrator of the testator’s estate, the estimated value of which was P24,000, and
he was appointed.
Petitioners herein, claimed to be the nephews and nieces of Mateo Caballero. They
filed a second petition entitled “in the Matter of the Intestate Estate of Mateo
Caballero”.
The intestate proceedings and the petition for probate were consolidated by the
court.
Caneda opposed to the petition for probate on the ground that on the alleged date of
its execution, the testator was already in the poor state of health and couldn’t have
possibly executed the same.
Labuca, one of the attesting witness and the notary public, Atty. Filoteo Manigos
testified that the testator executed the will in question in their presence while he was
of sound and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in the
execution of his will. Labuca also testified that he and the other witnesses attested
and signed the will in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as the had died by
then.
CFI: the will in question was the last will and testament of Mateo Caballero.
Caneda asserted that the will is null and void because its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they also signed the
will and all the pages thereof in the presence and of one another.
CA: Attestation clause substantially complies with Art. 805.
What appears in the attestation clause which the oppositors claim to be defective is :
”we do certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in
letters of the upper part of each page, as his Last Will and Testament, and he
has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin in the presence of the said testator
and in the presence of each and all of us
That is sufficient compliance and no evidence need be presented to indicate the
meaning that the said will was signed by the testator and by the witnesses in the
presence of all of them and of one another. Or as the language of the law would have
it that the testator signed the will "in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in the presence
of the testator and of one another." If not completely or ideally perfect in accordance
with the wordings of Art. 805, the phrase as formulated is in substantial compliance
with the requirement of the law.”
Issue: Whether the attestation clause contained in the last will and testament of the
late Mateo Caballero complies with the requirements of Art. 805 in relation to Art.
809 of the Civil Code.
Ruling:
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NOTARIAL WILL HOLOGRAPHIC WILL

Art. 805
must be acknowledged before a notary
public by a testator and the attesting
witness
both should be in writing and must have been executed in a language or dialect
known to the testator
where the testator is deaf or mute, Art.
807 requires that he must personally
read the will, if able to do so. Otherwise
must designate 2 persons who would
read the will and communicate its
contents to him in a practicable
manner
If the testator is blind, the will should
be read to him twice: once by anyone of
the witnesses thereto, and again before
the notary public.
Art. 810
one that is entirely written, dated and
signed by the testator himself; requires
no attestation by witnesses
CAGRO VS. CAGRO
226 SCRA 317
Facts: Pelagio Cagro, appellant insists that the will of Vicente Cagro is fatally
defective because its attestation clause is not signed by the attesting witnesses.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
Issue: Is the will valid?
Ruling:
THE WILL IS VOID. The position of the appellant is correct. The attestation clause is
'a memorandum of the facts attending the execution of the will' required by law to be
made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their participation.
THE SIGNATURES OF THE 3 WITNESSES ON THE LEFT-HAND MARGIN DOES NOT
CONFORM SUBSTANTIALLY TO THE LAW. The signatures in the left-hand margin are
in compliance with the legal mandate that the will be signed on the left hand margin
of all its pages. If an attestation clause not signed by the 3 witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the
witnesses.

Note:
ATTESTATION CLAUSE NEED NOT BE WRITTEN IN A LANGUAGE OR DIALECT KNOWN
TO THE TESTATOR SINCE IT DOES NOT FORM PART OF THE TESTAMENTARY
Cagro vs. Cagro is the prevailing rule — where the signatures of the witnesses to the
DISPOSITION. The language use in the attestation clause likewise does not need to
will do not appear at the bottom of the attestation clause, although the page
be known to the attesting witnesses. Art. 805 merely requires that in such a case, the
containing the same is signed by the witnesses on the left-hand margin. While 3
attestation clause shall be interpreted to the witnesses.
Justices considered the signature requirement substantially complied with, a
majority of 6 ruled that the attestation clase had not been duly signed, rendering the
ATTESTATION CLAUSE refers to that part of an ordinary will whereby the attesting
will fatally defective. The attestation clause is "a memorandum of the facts attending
witnesses certify that the instrument has been executed before them and to the
the execution of the will" required by law to be made by the attesting witnesses, and it
manner of the execution the same. It is a separate memorandum or record of the
must necessarily bear their signatures. An unsigned attestation clause cannot be
facts surrounding the conduct of execution and once signed by the witnesses, it
considered as an act of the witnesses, since the omission of their signatures at the
gives affirmation to the fact that compliance with the essential formalities required
bottom thereof negates their participation. The signatures on the left -hand margin is
by law has been observed. It is made for the purpose of preserving in a permanent
not substantial compliance — only in compliance with the rule that the will should be
form a record of the facts that attended the execution of a particular will, so that in
signed on the left- hand margin of all its pages, not with the attestation rule.
case of failure of the memory of the attesting witnesses, or other casualty, such facts
may still be proved.

WHAT SHOULD THE ATTESTATION CLAUSE CONTAIN: (1) the number of pages used
upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator
of the will and all its pages, and that said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.
Purpose: 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 signature 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.
RULE OF SUBSTANTIAL COMPLIANCE WAS NOT APPLIED IN THIS CASE. The will
totally omitted the fact that the attesting witnesses signed each and every page of
the will in the presence of the testator and of each other. In such a situation, the
defect is not only in the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be specifically stated in the
attestation clause of a will. There is no implication that the attesting witness actually
bear witness to the signing by the testator of the will and all of its pages and that
said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another. Since the proof of the acts required to
have been performed by the attesting witnesses can be supplied only be extrinsic
evidence, the rule on substantial compliance cannot be applied.
TABOADA VS. ROSAL
November 5, 1983
The petition of probate of Dorotea Peres was filed before the CFI of Southern Leyte
by Apolonio. The alleged last will was written in Debuano-Visayan dialect, and
constists of two pages. The first page contains the entire testamentary dispositions
and is signed at the end or bottom of the pages by the testratrix alone and at the left
hand margin by the 3 instrumental witnesses. The second page which contains the
attestation clause and the acknowledgement is signed at the end of the attestation
clause by the 3 attesting witnesses and at the left hand margin by the testatrix.
CFI: denied the probate of the will of Dorotea Perez for want of a formality in its
execution.
According to Judge Rosal, for a notarial will to be valid, not only the testatrix, but also
the subscribing witnesses must sign at the same place or at the end, in the presence
of the testatrix and of one another because the attesting witnesses to a will attest
not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand
margin of that page.
Taboada maintains that Art. 805 does not make it a requirement that the signatures
of the subscribing witnesses should be located at the end of the will after the
signature of the testatrix.

SUBSTANTIAL COMPLIANCE RULE: Omissions that can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence will
not be fatal. Those omission which cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation clause and ultimately of the will
itself.
Issue: Is the will valid?
Ruling: YES
ART. 805 PROVIDES THAT THE WILL MUST BE SUBSCRIBED OR SIGNED AT ITS END
BY THE TESTATOR HIMSELF or by the testator’s name written by another person in
his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

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WILL MUST BE LIBERALLY CONSTRUED.
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.
1. 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" (Report of the Code commission, p. 103).
2. Judge Pamatian stated in his questioned order that were not for the defect in the
place of signatures of the witnesss, he would have found the testimony sufficient
to establish the validity of the will
3. the objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary dispositions, especially so when
the will was properly Identified by subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
ATTESTATION CLAUSE FAILED TO STATE THE NUMBER OF PAGES. BUT HERE THE
WILL IS ONLY COMPOSED OF ONLY 2 PAGES. 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”.
CASES WHERE THE WILL WAS LIBERALLY CONSTRUED:
SINGSON VS. FLORENTINO — The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied by a consideration or
examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations.
ICASIANO VS. ICASIANO — Impossibility of substitution of this page is assured not
only of the fact that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no
control where the purpose of the law to guarantee the Identity of the testament and
its component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or
bungling it or the attestation clause.
VILLAFLOR VS. TOBIAS
53 Phil 714
Facts: This case involves the probate of the will of Gregoria Villaflor which was filed
by Jose Villaflor, one of the testamentary heirs of the deceased.
This was opposed by Pilar Villaflor, Deogracias Tobias, and several others whose
names do not appear in the record, upon the ff. grounds: (1) That it was not signed by
the alleged testatrix personally though she was able to do so at the time of the
execution of the document; (2) that said testatrix did not authorize any one to sign
the alleged will in her name; (3) that both before and after the execution of the
document, Gregoria Villaflor signed various documents by thumb marks; (4) that
although it is true that the testatrix requested that the will be prepared, she
nevertheless refused to sign it because it was contrary to her desires and
instructions; (5) that subsequent to the date upon which the alleged will was
First Exam
executed, Gregoria Villaflor on several occasions stated that it was not her
testament; (6) that the alleged will was not executed or signed in conformity of the
law.
The probate was disallowed by the trial court on the ff. grounds:
(1) sufficiently proved the Lazo, the person who is alleged to have signed the name
of the testatrix in her behalf, and by her express direction, subscribed the name
and surname of testatrix was done without one of the attesting witnesses
(2) When Soliven (attesting witness) signed the same, the other attesting witness,
Tacderas was not present
(3) The will which was typewritten on 8 sheets, one separated from the others; that
the attestation clause was written on a separate sheet, marked page 9, when said
clause could not have been written totally or partially on page 8, since one-half
of this latter page is blank.
(4) Villaflor did not sign nor subscribed to the alleged will — on the day of its
execution, the testatrix was, in good and sound health, although she could not
walk on her own feet inasmuch as she was then suffering from rheumatism or
partial paralysis of the lower extremities, and that on July 27, and May 25, 1923,
the testatrix Gregoria Villaflor used to mark with her thumb, if she did not sign,
the document she executed, as it was proven during the trials by Exhibit 1 and 2
of the opponents, the doubt and suspicion which this court entertains in regard
to the authenticity of the will in question, becomes a certainty that said
testament is false.
Issue: Is there substantial compliance?
Ruling: YES. Will is admitted to probate.
THE WILL WAS EXECUTED IN STRICT COMPLIANCE WITH THE PROVISIONS OF THE
EXECUTION OF WILLS.
1. The testatrix's name was signed by one Claro Lazo, a clerk in the office of
municipal treasurer of Santo Domingo, and the attesting witnesses were Vicente
Tacderas, municipal president, Rufino D. Soliven, chief of police, and Mariano
Pizarro, municipal treasurer, all of the town of Santo Domingo. The finding of the
court below that the witness Soliven was not present when Claro Lazo signed the
name of testatrix and when Vicente Tacderas signed as witness, is based on the
fact that, in testifying in this case, Claro Lazo upon being asked to enumerate the
names of the persons present at the time of signing of the document, omitted the
name of Soliven. But it appears from the transcript of the testimony that he
afterwards corrected his original statement and testified that Soliven, as well as
the other witnesses to the will, was present while all of the signatures were
fixed. This is in harmony with the testimony of all of the instrumental witnesses
and is undoubtfully true; there is, indeed, nothing strange or unusual in a mistake
such as that made by Lazo. It may be noted that it is not disputed that the lawyer
Gallardo was present during the whole proceeding and as he appears to have
possessed full knowledge of the formal requirements for the execution of the
will, it is highly improbable that he would have allowed the will in question to be
signed without the presence of a testatrix and of all the witnesses.
2. THAT THE ATTESTATION CLAUSE OF THE WILL IS WRITTEN ON A SEPARATE
PAGE AND NOT ON THE LAST PAGE IS NOT OF IMPORTANCE. It was explained
that if the clause had been written on the eight page of the will in direction
continuation of the body thereof, there would have been sufficient space on that
page for the signatures of the witnesses to the clause. It is also to be observed
that all of the pages, including that upon which the attestation clause is written,
bear the signatures of all the witnesses and that there is no question whatever as
to the genuineness of said signatures.
3. THAT THE NAME OF THE TESTATRIX WAS WRITTEN BY ANOTHER PERSON, AND
THAT SHE DID NOT SIGN BY THUMB MARK IS BECAUSE OF THE ATTEMPT OF
THE LAWYER, GALLARDO, TO COMPLY STRICTLY WITH THE FF. CLAUSE IN THE
SPANISH TEXT OF SEC. 618 OF THE CODE OF CIVIL PROCEDURE. “Excepto en el
caso a que se refiere el articulo anterior, no sera valido para la transmision de
bienes muebles e inmuebles, ni los gravara y afectara, ningun testamento a
menos que este escrito y que haya sido firmado por el testador, o que lleve el
nombre de este, escrito por otra persona en su presencia y bajo su direccion
expresa, . . . ." The making of a finger mark is not "escribir" and it may be noted
that Gallardo apparently is a good Spanish scholar, that it does not appear that
he knows the English language;. and that he therefore probably used the Spanish
text of the Code.
4. THE TESTIMONIES TO THE EFFECT THAT THE EXECUTION OF THE WILL WAS
NOT MADE IN CONFORMITY WITH HER INSTRUCTIONS AND IT WAS NOT HER
WILL IS NOT GIVEN ANY WEIGHT/ GIVEN LITTLE IMPORTANCE. The testatrix was
an old woman and might have well made the statements by way of justification in
conversation with persons who considered themselves wronged by the
provisions of her will, but expressions of that kind cannot, of course, work the
revocation of the document. The testatrix lived for over two years after the will
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was made and had ample opportunity to make another will if she was dissatisfied
with the first.
CANEDA VS. CA
222 SCRA 784
Ruling: 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. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation
or in the language used therein shall not render the will invalid if it is not
proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805"
While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witness affixed their
respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution
of a will is supposed to be one act so that where the testator and the witnesses sign
on various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
HOLOGRAPHIC WILLS
Art. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
Art. 810 talks about holographic wills. This is the other kind of will which is
recognized in the Philippines.
Art. 804 also applies to a holographic will: (1) must be in writing; (2) it must be in a
language or dialect known to the testator.
Moreover,
REQUISITES:
1. MUST BE ENTIRELY HANDWRITTEN BY THE HANDS OF THE TESTATOR
2. MUST BE ENTIRELY DATED BY THE HANDS OF THE TESTATOR
3. MUST BE SIGNED BY THE HANDS OF THE TESTATOR
It does not require attestation clause, acknowledgement, witnesses.
Right now you can execute your holographic wills, as long as you comply with these
requirements.
ADVANTAGES OF HOLOGRAPHIC WILLS:
(1) easier to make
(2) easier to revise — can make insertions, alterations unlike in notarial wills
(3) easier to keep secret — it is only the testator who knows the contents of his
will and that he made a will
DISADVANTAGES OF HOLOGRAPHIC WILLS:
(1) it is easier to forge
(2) it is easier to misunderstand -- because the testator may be faulty in
expressing his last wishes
(3) there is no guarantee that no fraud, force , intimidation, mistake or undue
influence attended the execution of the will
(4) there is no guarantee as to the soundness of mind of the testator when he
made the will — no one can testify
HISTORY OF HOLOGRAPHIC WILLS
There was a point in time that holographic wills were not allowed. If you relate this to
Art. 795, when you say holographic will, it is a matter of form. It refers to the extrinsic
validity of the will. Under Art. 795, the extrinsic validity shall be governed by the law
in force at the time of the execution of the will.
What if you made a holographic will at the time when the law did not recognize it?
Even if the testator died at the time where holographic wills were already allowed,
still it is not valid.
1) SPANISH CIVIL CODE
2) CODE OF CIVIL PROCEDURE / ACT NO. 190 — August 7, 1901
‣ only notarial wills were recognized thereby repealing holographic wills
3) NEW CIVIL CODE — August 30, 1950
‣ holographic wills were revived.
From August 7, 1901 until August 29, 1950, holographic wills were not recgonized. If
there appears to be a holographic will executed within that period, it is not valid.
REQUIREMENTS OF HOLOGRAPHIC WILLS
1. MUST BE ENTIRELY HANDWRITTEN BY THE HANDS OF THE TESTATOR
‣ EVERYTHING has to be written by the testator
‣ purpose: to guarantee against all falsifications or alterations in the will
‣ it would be perhaps be easier to forge the signature of the testator; but it
would be more difficult to forge the entire handwriting of the testator
‣ cannot delegate the mechanical act of drafting the will to a third person
(unlike in the notarial wills, one can delegate the drafting of the will)
‣ if partly handwritten and typewritten = void
If the attestation clause is typewritten while the entire will was handwritten.
Is the will valid? If the handwritten portion complies with all the requisites of
a holographic will, the attestation clause is merely a surplusage. An
attestation clause is not required in holographic wills. The attestation can be
disregarded.
2. MUST BE DATED BY THE HANDS OF THE TESTATOR
- the date must be written in the hands of the testator
- The date is very important in holographic wills. This is unlike in notarial
wills, it is not because the date can be proved by the presentation of
extrinsic evidence.
- Reasons for the importance of the date in holographic wills:
(1) to provide against contingencies as that of 2 competing wills
executed on the same day or different dates
For example you have 2 wills: 1st instituted A to the entire
estate of the testator. 2nd instituted B to the entire estate
of the testator. Since you cannot reconcile the 2 wills,
reference must be made to the date. Under the law on
revocation, the later will is deemed to have revoked the
earlier one. The later will is the latest expression of the
testator’s wishes. In holographic wills, only the testator
knows about when he made the will. That's why the date is
very important.
(2) to determine the mental condition of the testator at the time he
made the will
In the case of an insane person who has lucid intervals. If
the will is made during a lucid interval, it is valid. The only
way to know whether it was made during a lucid interval, is
by looking at the date.
(3) to determine whether the will is extrinsically valid
Again, there is a time when holographic wills are not
allowed. From August 7, 1901 to August 29, 1950
- How should a date be written? Ideally it should state the month, day, and
the year: August 14, 2017. It can also be made by implication: Christmas of
2013, Valentines Day of 2014,
In the case of Roxas vs. De Jesus, the date here was written as February 19, 1961. Is
this date valid? Yes. It was allowed. If you examine the facts of the case, the
contingencies which are guarded against by requiring the date, are not present. Here,
there is only one will. There is no question of revocation. The mental condition of the
testator was not questioned. This will was made during the effectivity of the NCC
because it was already in 1961. The SC allowed the probate of the will.
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ROXAS VS. DE JESUS, JR.
January 28, 1985
Facts: After the death of Spouses Andres and Bibiana Roxas de Jesus, a special
proceeding was filed by Petitioner Simeon Roxas, the brother of the deceased Bibiana
entitled “In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana
Roxas de Jesus. He was appointed as the administraror. After he was issued letters
of administration, he delivered a document purporting to be the holographic will of
Bibiana. The Judge set the hearing for the probate.
Simeon testitfied that he found a notebook belonging to Bibiana and that on pages
21, 22, 23 and 24, hereof, a letter-will addressed to her children and entirely written
and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The
will is dated "FEB./61 " and states: "This is my will which I want to be respected
although it is not written by a lawyer. …
- corroborated by the testimonies of Pedro de Jesus and Manuel who also said
that the letter dated “FEB/61” is the holographic Will of their deceased
mother, Bibiana; both recognized the handwriting of their mother and
positively identified her signature; they also testified that their mother
understood English, which was used in the holographic will.
Respondent Henson, another compulsory heir filed a opposition to probate, on the
ground that it was not executed in accordance with law (b) it was executed through
force, intimidation, and /or under duress, undue influence, and improper pressure and
(c) the alleged testatrix acted by mistkae and /or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of its execution.
The probate of the will was allowed. Then disallowed the probate of the holographic
will on the ground that the word “dated’ has generally been held to include the month,
day and year.
Contention of Simeon Roxas: While Article 685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the testator to state in his holographic Will the "year,
month, and day of its execution," the present Civil Code omitted the phrase Año mes y
dia and simply requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should prevail.
Contension of Respondent Henson: submits that the purported holographic Will is
void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of the California Code
and Section 1588 of the Louisiana Code whose Supreme Courts had consistently
ruled that the required date includes the year, month, and day, and that if any of these
is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of holographic
Wills are strictly construed.
Issue: Whether the date “FEB./61” appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with Art. 810.
Ruling: Probate must be allowed.
THE PREVAILING POLICY IS TO REQUIRE THE SATISFACTION OF THE LEGAL
REQUIREMENTS IN ORDER TO GUARD AGAINST FRAUD AND BAD FAITH BUT
WITHOUT UNNECESSARY CURTAILMENT OF TESTAMENTARY PRIVILEGE (Icasiano
vs. Icasiano.) 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).
Thus,..
More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the will and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745)
IF THE TESTATOR ATTEMPTS TO COMPLY WITH ALL THE REQUISITES ALTHOUGH
COMPLIANCE IS NOT LITERAL, IT IS SUFFICIENT IF THE OBJECTIVE OR PURPOSE
SOUGHT TO BE ACCOMPLISHED BY SUCH REQUISITE IS ACTUALLY ATTAINED BY
THE FORM FOLLOWED BY THE TESTATOR.
PURPOSE OF THE SOLEMNITIES: 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.
(Abangan vs. Abangan)
THERE IS 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. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61 " appearing on the holographic Will
is not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.
AS A GENERAL RULE, THE “DATE” IN A HOLOGRAPHIC WILL SHOULD INCLUDE THE
DAY, MONTH AND YEAR OF ITS EXECUTION. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the date
"FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of
the Civil Code, probate of the holographic Will should be allowed under the principle
of substantial compliance.
LABRADOR VS. CA
180 SCRA 120
Facts: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
Sagrado Labrador (now substituted by his heirs Enrica and Cristobal) filed a petition
for the probate of the alleged holographic will of Melecio Labrador.
This was opposed by Gaudencio Labrador on the ground that the will has been
extinguished or revoked by implication of the law. Because on September 30, 1971,
before Melecio’s death, he executed a Deed of Absolute Sale, in favor of Jesus and
Gaudencio (oppositors) for P5000, where the subject property (fish pond) is also
covered by the holographic will.
Sagrado filed a petition for the annulment of the Deed of Sale.
RTC: allowed the probate of the holographic will and declared null and void the Deed
of Absolute Sale.
The holographic will written in Ilocano translated into English provides in the Second
Page:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father.
Issue: Whether the holographic will of Labrador is dated.
Ruling: THE WILL IS DATED IN THE HAND OF THE TESTATOR HIMSELF IN PERFECT
COMPLIANCE WITH ART. 810. It is worthy to note the first paragraph of the second
page of the holographic will contains the date: March 17, 1968 which was the date
when the holographic will was made.
- The law does not specify a particular location where the date should be
placed in the will
- The only requirements are that the date be in the will itself and executed in
the hand of the testator. These requirements are present in the subject will.
Respondent Gaudencio and Jose claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said fishpond,"
and was not the date of execution of the holographic will; hence, the will is more of an
"agreement" between the testator and the beneficiaries thereof to the prejudice of other
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compulsory heirs like the respondents. This was thus a failure to comply with Article
783 which defines a will as "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.”
THE INTENTION TO SHOW MARCH 17, 1968 AS THE DATE OF EXECUTION OF THE
WILL IS PLAIN FROM THE TENOR OF THE SUCCEEDING WORDS OF THE
PARAGRAPH. The will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of partitioning and
the declaration that such partitioning as the testator's instruction or decision to be
followed reveal that Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.
As to the redemption of the fish pond: When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually selling
property belonging to another and which they had no authority to sell, rendering such
sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000,
to immediately regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the P5,000.
Will is allowed for probate.
Note: As to the location of the date, it can be at the top, bottom, in the body of the
will or even in the signature. There is no particular location required.
3. MUST BE SIGNED BY THE HANDS OF THE TESTATOR
๏ must be the full signature of the testator
๏ If his name is Juan de la Cruz, then his signature must say Juan de la Cruz
-- that’s the ideal signature, the full signature
๏ What if the testator signs “J.D. Cruz”? As long as it is his full customary
signature, that will still be allowed.
๏ What if the testator customarily uses his initials? No, even if it is his
customary signature. It is very easy to forge the initials. In holographic
wills, we are very cautious when it comes to forgery.
๏ Full signature should be affixed. By way of exception, you can affix not the
entire name, as long as it is the customary signature. Initials are really not
allowed.
๏ How about a smiling face? It is not allowed.
๏ Thumbmark? Not allowed because it is not his handwriting.
๏ What if the testator has no hands? Can he execute a holographic will? What
if he uses his mouth/feet? As long as it is the writing of the testator, it is
allowed.
๏ Time of signing: can be done after the execution of the holographic will
๏ Location of the signature: when we go to Art. 812, it is appears that it
should be located at the end of the will.
In Seangio vs. Reyes, the testator actually executed a document disinheriting one of
his compulsory heirs. We already discussed before that a will which contains only the
disinheritance of an heir is valid because it is a kind of disposition — indirect way of
disposing the property.
The principle here with respect to holographic wills is that because holographic wills
are usually prepared by one who is not learned in the law, these wills should be
construed more liberally than those drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of the
testator.
Even if captioned as Kasulatan ng Pag-Aalis ng Mana, it was intended by Segundo to
be his last testamentary act. As long as it was executed by him in accordance with
law in the form of a holographic will. It could be given effect, it could be probated.
SEANGIO VS. REYES
GR 140371-72, Nov 27, 2006
ISSUE: Is the will which only contains a disinheritance of an heir, valid?
RULING: Yes. A holographic will as provided under Article 810 of the Civil Code, must
be entirely written, dated, and signed by the hand of the testator himself. It is subject
First Exam
to no other form, and may be made in or out of the Philippines, and need not be
witnessed.
Segundo’s document conforms to the formalities of a holographic will prescribed by
law.
1. it is written dated, signed by the hand of Segundo himself
2. there is an intent to dispose mortis causa — while it does not make an
affirmative disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless is an act of disposition in itself. The disinheritance results in the
disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
IT IS A FUNDAMENTAL PRINCIPLE THAT THE INTENT OR THE WILL OF THE
TESTATOR, EXPRESSED IN THE FORM AND WITHIN THE LIMITS PRESCRIBED BY
LAW, MUST BE RECOGNIZED AS THE SUPREME LAW IN SUCCESSION. All rules of
construction are designed to ascertain and give effect to that intention. It is only
when the intention of the testator is contrary to law, morals, or public policy that it
cannot be given effedct.
HOLOGRAPHIC WILLS SHOULD BE CONSTRUED MORE LIBERALLY THAN THE ONES
DRAWN BY AN EXPERT, TAKING INTO ACCOUNT THE CIRCUMSTANCES
SURROUNDING THE EXECUTION OF THE INSTRUMENT AND THE INTENTION OF THE
TESTATOR. n this regard, the Court is convinced that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a
holographic will. Unless the will is probated, the disinheritance cannot be given
effect.
THE COMPULSORY HEIRS IN THE DIRECT LINE WERE NOT PRETERITED IN THE
WILL. It was Segundo’s last expression to bequeath his estate to all his compulsory
heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the
exclusion of his other compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute her as the universal
heir. Her name was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.
Art. 811. In the probate of a holographic will, it shall be necessary that
at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to.
Under Art. 811, there is a discussion on the probate of holographic wills.
What is probate? It is a special proceeding intended to determine the genuineness
and due execution of the will.
If a person leaves a will, whether notarial or holographic, it is not automatic that the
properties of the testator would be transferred pursuant to that will. Not like in sales
that the agreement or transfer is immediately effective upon delivery/registration in
the RoD. In wills — it does not follow that once the testator signs the will and has it
notarized, that the heirs can cause the transfer. It will have to pass through probate
proceeding.
MATTERS DETERMINED DURING PROBATE:
a) whether the testator voluntarily executed his will,
b) whether it is the very same will executed by the testator,
c) whether he was of sound mind when he made the will and
d) whether was of legal age and had testamentary capacity.
In the probate of holographic wills, it is required that:
IF THE WILL IS NOT CONTESTED
(1) there be at least 1 witness who knows the handwriting and signature of the
testator; and
(2) that he should explicitly declare that the will and the signature are in the
handwriting of the testator. This is if the will is not contested.
Remember: 1 witness, if the will is not contested.
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1 witness and what is his qualification? He should be able to explicitly declare that
the will and the signature are in the handwriting of the testator.
IF THE WILL IS CONTESTED
(1) there be at least 3 witnesses
(2) they know the handwriting and signature of the testator; and
(3) they should explicitly declare that the will and the signature are in the
handwriting of the testator
2nd paragraph: In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be resorted to.
If the will is contested, is it really required to present at least 3 witnesses?
First, let’s dicuss the case of Azaola vs. Singson .
AZAOLA VS. SINGSON
109 Phil. 102
Facts: This involves the petition for probate of the will of the testatrix, Fortunata S.
Vda. de Yance. Petitioner Fransisco Azaola submitted the holographic will whereby
Maria Milagros Azaola was made the sole heir as against the nephew of deceased,
Respondent Cesario Singson.
Fransisco Azaola testified that (1) he saw the holographic will, one month more or
less before the death of the testatrix, as the same was handed to him and his wife;
(2) that he recognized all the signatures appearing in the holographic will as the
handwriting of the testatrix
- presented the SPA, GPA, Deeds of Sale, affidavit, 2 residence certificates to
show the signatures of the testatrix for comparison purposes
(3) the penmanship appearing in the documentary evidence is in the handwriting of
the testatrix as well as the signatures appearing therein
However, on page 16 of the same transcript of the stenographic notes, when the
same witness was asked by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata, he answered yes and when he was asked
again whether the penmanship referred to in the previous answer as appearing in the
holographic will was hers, he answered “I would definitely say it is hers"; that it was
also established in the proceedings that the assessed value of the property of the
deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The petition for probate was opposed on the following grounds:
(1) thee execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and
(2) that the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Art. 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and because
the lone witness presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix.”
Azaola contends that (1) he was not bound to produce more than more than one
witness because the will’s authenticity was not questioned, and (2) Art. 811 does not
mandatorily require the production of 3 witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied by the
adverse party.
Issue: Should Azaola have presented more than 1 witness?
Ruling:
ART. 811 OF THE CC IS MERELY DIRECTORY AND NOT MANDATORY.
AZAOLA WAS NOT REQUIRED TO PRODUCE MORE THAN 1 WITNESS SINCE THE
WILL’S AUTHENTICITY WAS NOT CONTESTED. BUT EVEN IF THE GENUINENESS OF
THE HOLOGRAPHIC WILL WERE CONTESTED, ART. 811 CANNOT BE INTERPRETED
AS TO REQUIRE THE COMPULSORY PRESENTATION OF 3 WITNESSES TO IDENTIFY
THE HANDWRITING OF THE TESTATOR, UNDER PENALTY OF HAVING THE PROBATE
DENIED. Since no witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it becomes obvious that
the existence of witness possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of course, even if the law
does not so express) "that the will and the signature are in the handwriting of the
testator". There may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may thus become an impossibility.
THE LAW FORESEES THE POSSIBILITY THAT NO QUALIFIED WITNESS MAY BE
FOUND. That is evidently the reason why the second paragraph of Article 811
prescribes that —
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
THE REQUIREMENT CAN BE CONSIDERED MANDATORY ONLY IN CASE OF ORDINARY
TESTAMENTS, BECAUSE THE PRESENCE OF AT LEAST 3 WITNESSES IS REQUIRED
IN THE EXECUTION THEREOF. Whereas in the execution of the holographic wills, no
witness need be present. The rule requiring production of 3 witnesses must be
deemed merely permissive if absurd results are to be avoided.
ART. 811, THE RESORT TO EXPERT WITNESS IS CONDITIONED BY THE WORD “IF THE
COURT DEEM IT NECESSARY” WHICH REVEAL THAT WHAT THE LAW DEEMS
ESSENTIAL IS THAT THE COURT SHOULD BE CONVINCED OF THE WILL’S
AUTHENTICITY. Where the prescribed number of witnesses is produced and the court
is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent witness
is available, or none of those produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the
true intention of the testator be carried into effect.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
Note: With respect to holographic wills, according to this case, it is not just a matter
of presenting 3 witnesses but witnesses with requisite qualifications — which is
sometimes beyond the control of the proponents of the will because there are no
witnesses around when he executes the will.
How can we now be sure that the will was really voluntarily executed by the testator
when you don’t really require the 3 witnesses?
If the court is not convinced that the will is authentic, it may resort to handwriting
experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for
the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
SC said in this case that Art. 811 is not mandatory. It is difficult to find these kinds of
witnesses. In the absence of these 3 witnesses, the court may resort to expert
testimony. The court may also make its own determination.
CODOY VS. CALUGAY
312 SCAR 333 (1999)
Facts: Respondents Calugay, Salcedo, Patigas, devisees and legatees of the
holographic will of Matilde Seo Vda de Ramonal filed a petition for probate of the
holographic will of the deceased (assessed value of the property, real and personal
was about P400,000 at the time of death). They claimed that:
Matilde Seo Vda de Ramonal was of sound and disposing mind when she
executed the will on Aug 30, 1978 that there was no fraud, undue influence,
and duress employed in the person of the testator and the will was written
voluntarily
The petition was opposed by Petitioners Codoy and Ramonal. They allged that the
holographic will was a forgery and that the same is even illegible. It gives an
impression that a 3rd hand of an interested party other than the true hand of Matilde
executed the holographic will.
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- the repeated dates incorporated or appearing on the will after every
disposition is out of the ordinary
- if the will was not forged, the dates and signature should appear at the bottom
after the dispositions, as regularly done and not after every disposition.
- assuming that the holographic will is in the handwriting of the deceased, it
was procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud or trickery.
Respondents Calugay presented 6 witnesses and various documentary evidence.
Petitioners Codoy, filed a demurrer to evidence claiming that the Respodents failed to
establish factual and legal basis for the probate of the holographic wills of the
deceased.
Testimonies:
1. Augusto Neri: Clerk of Court, Court of First Instance of Misamis Oriental, where
the special proceedings for the probate of the holographic will of the deceased
was filed. He produced and identified the. records of the case. The documents
presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for
the purpose of laying the basis for comparison of the handwriting of the testatrix,
with the writing treated or admitted as genuine by the party against whom the
evidence is offered.
2. Generosa Senon: election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit
was not produced for the same was already destroyed and no longer available.
3. Matilde Ramonal Binanay: testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter
lived with her in her parents house for eleven (11) years, from 1958 to 1969.
During those eleven (11) years of close association with the deceased, she
acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals
from her various tenants of commercial buildings, and the deceased always
issued receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal letters of
the deceased to her creditors.
4. Matilde Ramonal Binanay: further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the deceased and
that all the dispositions therein, the dates, and the signatures in said will, were
that of the deceased.
5. Fiscal Rodolfo Vega: testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with the intestate proceedings
of her late husband, as a result of which he is familiar with the handwriting of the
latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be
sure.
6. Mrs. Teresita Vedad: an employee of the Department of Environment and Natural
Resources, Region 10. She testified that she processed the application of the
deceased for pasture permit and was familiar with the signature of the deceased,
since the deceased signed documents in her presence, when the latter was
applying for pasture permit.
7. Evangeline Calugay: one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of the deceased. She
testified that the signature appearing in the holographic will is the true and
genuine signature of Matilde Seo Vda. de Ramonal.
CA allowed the will to be probated.
Issue: Is Art. 811 mandatory or permissive?
Ruling:
BASED ON THE LANGUAGE USED, ART. 811 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.
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.
The paramount consideration in the present petition is to determine the true intent of
the deceased. An exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator.
Issue: Should the will be allowed for probate?
Ruling:
THE CASE IS REMANDED TO THE TRIAL COURT FOR THE PRESENTATION OF MORE
EVIDENCE.
1. The witnesses were not familiar of the signature of the testator
2. In Ajero vs. CA, 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.
3. The will was found not in the personal belongings of the deceased but with one
of the Respondents, who kept it even before the death of the deceased. In the
testimony of Ms. Binanay, she revealed that the will was in her possession as
early as 1985, or five years before the death of the deceased.
4. There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her
during her lifetime. The only chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to
compare the documents which contained the signature of the deceased with that
of the holographic will and she is not a handwriting expert. Even the former
lawyer of the deceased expressed doubts as to the authenticity of the signature
in the holographic will.
5. A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will.
6. Comparing the signature in the holographic will dated August 30, 1978, and the
signatures in several documents such as the application letter for pasture permit
dated December 30, 1980, and a letter dated June 16, 1978, the strokes are
different. In the letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the holographic will was in the handwriting by the
deceased.
Note: SC said here that Art. 811 is mandatory. They took into account the facts of the
case. They just cannot close their eyes to the fact that the will appeared to be written
by a third person.
If you will be asked if it is mandatory to present 3 witnesses, of course, the later case
to cite is the case of Codoy vs. Malugay. Art. 811 is mandatory. Especially if the facts
are the same.
But if the facts are exactly the same as Azaola vs. Singson, then you should cite that.
If you want to top the bar exam, you can also say that “but in the case of Codoy…”
That would be your possible answer.
Although when you practice, of course it depends on the situation of your client. If
the testator made a holographic will and he only has 1 witness, then you can cite the
Azaola case. If you are for the oppositors, and you know that the proponents can’t
present 3 witnesses, then cite Codoy.
Actually, in real life, you can always argue.
How do we know that the will is contested?
RIVERA VS. CA
182 SCRA 322
Facts: On May 30, 1975, a prominent and wealthy resident of that town named
Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving
legitimate son of the deceased, filed a petition for the issuance of letters of
administration over Venancio's estate.
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This petition was opposed by Adelaido J. Rivera, who denied that Jose was the son
of the decedent. Adelaido averred that Venancio was his father and did not die
intestate but in fact left two holographic wills.
RTC: It was found that Jose Rivera was not the son of the decedent but a different
Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate
was in question was married to Maria Jocson, by whom he had seven children,
including Adelaido. Jose Rivera had no claim to this estate because the decedent
was not his father. The holographic wills were also admitted to probate.
IAC: affirmed RTC.
IAC considered the holographic will valid because it was written, dated, and signed by
the testator himself in accordance with Art. 810 of the CC. There was no necessity of
presenting the 3 witnesses required under Art. 811 because the authenticity of the
wills had not been questioned.
Issue: Was the will contested? Is it enough that only 1 witness was presented?
Ruling:
CONTENTION OF JOSE: The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In both proceedings, Jose Rivera
opposed the holographic wills submitted by Adelaido Rivera and claimed that they
were spurious. Consequently, it may be argued, the respondent court should have
applied Article 811 of the Civil Code, providing as follows:
In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator.
If the will is contested, at least three of such witnesses shall be required.
The flaw in this argument is that, as we have already determined, Jose Rivera is not
the son of the deceased Venancio Rivera whose estate is in question. Hence, being a
mere stranger, he had no personality to contest the wills and his opposition thereto
did not have the legal effect of requiring the three witnesses. The testimony of
Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written
and signed by their father, was sufficient.
Note: Here because Rivera was not related to the testator, he had no legal personality
to oppose. His opposition did not have the effect of requiring 3 witnesses because
legally it was not considered contested. Thus, there is no need to present 3
witnesses.
In the probate of wills, it is required (whether notarial or holographic) that the
proponents should be interested parties — not strangers, it could be the heirs, the
executor, the administrator, the creditors. It is the same for oppositors: one cannot
just oppose without any interest.
Here, because Rivera was not related to the testator, then he had no legal personality
to participate or oppose. His opposition did not have the effect of requiring 3
witnesses.
PROVING A HOLOGRAPHIC WILL WITH A PHOTOCOPY, ALLOWED?
In the probate of holographic wills, Is there a need to present a copy of the will in
court? What if the will is lost? If the original is lost, can you present a photo copy?
In Rodelas vs. Aranza, what was presented here was a mere photocopy. The question
is can the holographic will which was lost or cannot be found be proved by means of
a photostatic copy.
GR: you have to present the original
E: when the original is lost or destroyed
Here, the photocopy was allowed to be used as basis to prove the original.
RODELAS VS. ARANZA
GR L-58509, December 7, 1982
Facts: This involves the petition for probate of the holographic will of Ricardo B.
Bonilla as well as the issuance of letters testamentary in her favor.
This opposed by the Respondents Amparo Aranza, et al on the following grounds:
(1) Rodelas was estopped from claiming that the deceased left a will by
failing to produce the will within 20 days of the death of the testator as
required by Rule 75, Sec. 2 of the RoC
(2) The copy of the holographic will did not contain a disposition of property
after death and was not intended to take effect after death, and therefore
it was not a will
(3) The alleged holographic will itself, and not an alleged copy thereof must
be produced, otherwise it would produce no effect
(4) The deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
Trial Court in dismissing the petition for the probate of the will of Ricardo Bonilla said
1. that once the holographic will is lost, a copy thereof cannot stand in lieu of the
original
2. In Gan vs. Yap, the Court held that in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material proof of
authenticity of said wills
3. The holographic will was executed on Jan 25, 1962 while the deceased died on
May 13, 1976. In the lapse of more than 14 years from the time of the execution
of the will to the death of the decedent, the fact that the original of the will could
not be located shows to our mind that the decedent had discarded before his
death his allegedly missing Holographic Will.
Issue: Whether a holographic will which was lost or cannot be found can be proved
by means of a photostatic copy.
Ruling: YES.
PURSUANT TO ART. 811, PROBATE OF HOLOGRAPHIC WILLS IS THE ALLOWANCE OF
THE WILL BY THE COURT AFTER ITS DUE EXECUTION HAS BEEN PROVED. The
probate may be uncontested or not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be resorted to. If contested, at
least three Identifying witnesses are required.
HOWEVER, IF THE HOLOGRAPHIC WILL HAS BEEN LOST OR DESTROYED AND NO
OTHER COPY IS AVAILABLE, THE WILL CAN NOT 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.
Note:
How about if there is no copy of the will at all?
If there is no copy at all, but there is one witness who is willing to testify and he has
memorized the contents of the holographic will — Would that be allowed?
In the case of Gan vs. Yap, the SC said NO. The execution of the contents
may not be proved by the bare testimony of witnesses who have seen and
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. The will itself is also regarded as its only safeguard. It can be
demonstrated from the will itself whether it is in the hands of the testator
himself. Witnesses may be mistaken in their opinion as to the handwriting of
the testator or they may deliberately lie. Oppositors may present
contradictory evidence such as testimonies of other expert witnesses or
other witnesses who knew the handwriting and signature of the testator; or
letters in the handwriting of the testator. In view of such contradictory
evidence, the court may use its own visual sense and decide in the face of
the document whether is has been indeed written by the testator.
Without the copy of the will, the court cannot make its own evaluation
and comparison. It would be very difficult to know if the document
presented bared the real handwriting and the signature of the testator.
Even if in fact, a will was made during the lifetime of the testator, but
nocopy of the holographic will is presented during probate, not even a
photocopy, then the court cannot allow the probate of the holographic will.
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GAN VS. YAP
GR L-12190, Aug 30, 1958
Facts: The surviving husband of the testatrix opposed the petition for the probate of
the will on the ground that the deceased did not leave any will nor executed any
testament during her lifetime.
The probate of the alleged will was denied.
The proponents of the will testified that Felicidad was confined at the U.S.T. Hospital
for her last illness, she entrusted the said will, which was contained in a purse, to
Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for
the purse: and being afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to
Felina, only to demand it the next day shortly before the death of Felicidad. Again,
Felina handed it to him but not before she had taken the purse to the toilet, opened it
and read the will for the last time.
Issue: May a holographic will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting of the testator?
Ruling: NO.
THE EXCLUSION 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 difference between notarial wills (where it is
allowed to prove a will lost by a photostatic copy) and holographic wills is —
in holographic wills:
(1) the only guarantee of authenticity is the handwriting itself
(2) the loss of the holographic will entails the loss of the only medium
of proof
(3) if oral testimony were admissible, only one man could engineer the
fraud; he may convince 3 honest and credible witnesses to see and
read the forgery and having the latter testify before the court and
affirm the genuineness of the forgery
(4) considering that the holographic will may consist of 2 or 3 pages,
and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go
undetected
in notarial wills:
(1) the authenticity can be proved by the testimony of the subscribing
or instrumental witnesses (and of the notary, now)
(2) if the ordinary will is lost, the subscribing witnesses are available to
authenticate
(3) quite hard to convince 3 witnesses to lie; their lives could be
exposed by proving what they did on the day of the execution of the
will, etc.
(4) when at the end of the day, they will not be able to get anything out
of the will
According to Castan, Sanchez Roman and Valverde: One more fundamental
difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to
their opinion of the handwriting which they allegedly saw, an opinion which can not be
tested in court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Note:
That is with respect to holographic wills. In notarial wills, even if the notarial will is
lost and one cannot present a copy in court, it can still be proved by a recital of the
witnesses. You will learn that in special proceedings. But you cannot do that with
holographic wills.
Art. 812. In holographic wills, the dispositions of the testator written
below his signature must be dated and signed by him in order to make
them valid as testamentary dispositions.
Can you write additional dispositions after you have affixed your signature in the
holographic will?
Yes. It is expressly recognized in Art. 812. The requirement is only that the
holographic must be dated and signed by him. In notarial wills though, the
additions after the signature of the testator will invalidate the entire will —
again this is because it would no longer comply with the requirement that the
signature must be at the logical end of the will.
The law says: the signature must be dated and signed by him.
Purpose: to prevent fraud and insertions by other person.
What if the additional provision is not signed/dated? Not valid if it is not signed nor
dated. But we have Art. 813..
Art. 813. When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions.
A testator can add several dispositions (i.e. every week, every month ). Generally,
each disposition must be dated. Alhtough if there are several, and none of the
previous additions are not dated, as long as the last one is dated and signed, it
validates the dispositions preceding it. Such dispositions will be deemed to have
been made on the date of the last disposition.
ADDITIONAL PROVISIONS IN A HOLOGRAPHIC WILL NOT WRITTEN BY THE
TESTATOR
What if the additional provisions are written by a third person other than the
testator? Would those invalidate the will? IT DEPENDS.
(1) If the additional dispositions are not signed by the testator — The additional
dispositions do not invalidate the will. Such additional dispositions should just
be disregarded. The signature of the testator connotes that he owns/adopts the
provisions which he signs. Thus, there being no signature pertaining to the
additional dispositions, the testator does not intend to include them in his will.
Again, will is still valid. Why? It could be very dangerous if the whole will is
voided. It could be easy for someone to invalidate the will just to exclude
someone else from inheriting from the deceased.
(2) If those additional provisions are signed by the testator — by signing the
additional dispositions, the testator, clearly has intent to adopt the provisions as
his own. The will is void. Because there is something that is not in the
handwriting of the testator.
Here, we have a situation where the holographic will is not entirely written in
the hands of the testator. This makes the will void.
Art. 814. In case of any insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full
signature.
INSERTIONS, CANCELLATIONS, ERASURES OR ALTERATIONS IN A HOLOGRAPHIC
WILL
This is different from Art. 812 and 813.
How do you make insertions, cancellations, erasures, or alterations?
The law says they should be authenticated by the full signature of the testator.
Again, this will not apply to notarial wills because you are not allowed to make
any insertions/cancellations in a notarial will.
What if you want to cancel /insert/ add something in the notarial will? Either
make a codicil, or a new will.
The law says: FULL SIGNATURE
If the name of the testator is Juan dela Cruz, then it should show Juan dela
Cruz.
If one customarily signs his name, J.D. Cruz, then it is fine. As long as this is
his customary signature.
Again, initials are not allowed in holographic wills.
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Example: I hereby give my house and lot in Calinan, Davao City to A. The
testator changed his mind and now wants to give her house in Matina instead.
She cancelled the word, Calinan and inserted the world Matina.
The cancellation and insertion must be authenticated by the full
signature of the testatrix. It need not be dated — not required. Only
the full signature is needed.
What is the effect if the insertion, cancellation, erasure or alteration is not
authenticated?
GR: If the insertion, cancellation, erasure or alteration is not valid there being
no authentication, the will as originally written shall prevail.
E: The law on revocation is applied. Thus the will cannot be given effect — as
in the case of Kalaw vs. Relova,
KALAW VS. RELOVA
132 SCRA 237
Facts: Gregorio Kalaw, claiming to be the sole heir of his sister (Natividad Kalaw,
deceased) filed a petition for the probate of his sister’s holographic will executed on
Dec. 24, 1968.
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix
as her sole heir.
Petitioner Rosa Kalaw opposed probate alleging that the holographic will contained
alterations, corrections and insertions without the proper authentication by the full
signature of the testatrix as required by Art. 814 of the CC. She alleges that the
holographic Will as first written where she was the sole heir of the deceased, should
be given effect and probated so that she could be the sole heir thereunder.
Trial court denied the admission to probate of the will of Natividad.
Gregorio filed a MR arguing that since the alterations and/or insertions were the
made by the testatrix. The denial to probate of her holographic will would be contrary
to her right of testamentary disposition.
The MR was denied on the ground that Art. 814 was clear and explicit.
Rosa filed this Petition for Review on Certiorari on the sole question of whethher the
original unaltered text after subsequent alterations and insertions were voided by the
trial court for lack of authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Issue: Is a holographic will containing alterations and insertions deemed void or
revoked?
Ruling:
THE ENTIRE WILL IS VOIDED.
1. In this case, the 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.
2. Court has ruled in Velasco vs. Lopez: “Ordinarily, when a number of erasures,
corrections and interlineations made by the testator in a holographic Will litem
not been noted under his signature… the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or
interlined. This ruling does not apply in this case. This ruling 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.
Note:
Rosa can no longer claim because there was an intent to remove her. This is despite
the fact that such cancellation or removal was not authenticated.
The substitution in Gregorio’s favor cannot be given effect because Natividad could
have intended Rosa to be the sole heir.
If we just go ahead and apply the general rule under Art. 814, we just disregard the
cancellation of Rosa and disregard also the insertion of the name of Gregorio
because it was not authenticated. The effect would be to give the property to Rosa
because the cancellation of her name, not being authenticated, is not valid.
BUT the SC held that the will can no longer be given effect because there is only one
substantial provision. When the name of Rosa was cancelled, shows the
manifestation on the part of the testator that he had a change of heart. We can relate
this to the Rule on Revocation of Wills. Although it is not discussed in the case, the
cancellation of the name of Rosa here is equivalent to a revocation. The cancellation
implies the intent of revocation. The cancellation is an overt act of revocation on the
part of the testatrix to delete Rosa as an heir.
Under the Rule on Revocation, there are 3 kinds of revocation — one of which
is revocation by overt acts such as
- cancelling
- burning
- tearing
- obliterating
As long as there is cancellation coupled with animus revocandi or an intent
to revoke, there is a revocation. There is no requirement that it be
authenticated by the full signature.
Again, the act of cancelling the name of Rosa was actually tantamount to revocation.
There being revocation of her name, and there are no other heirs in the will (the
insertion of Gregorio’s name not being authenticated) nothing remains in the will that
can be given effect. That’s why the entire will could not be given effect at all.
Date or signature was cancelled in a holographic will
In Ajero vs. CA, there was discussion of the SC on what happens if the date or the
signature was cancelled in a holographic will.
Such cancellation invalidates the entire will. Because in holographic wills, the
date and the signature go to the very heart of the will. If there is cancellation in
those portions without authentication, and as long as there is intent to cancel,
then nothing in the will could be given effect.
The general rule was not applied in this case. You apply the law on revocation.
AJERO VS. CA
236 SCA 488, 1994
Facts: Petitioners Ajero instituted this case for the probate of Annie Sand’s will.
Petitioners and Respondents were named as devisees in the will. The petition was
opposed by the Respondents on the ground that it contained alterations and
corrections which were not duly signed by decedent.
RTC: While the fact that it was entirely written, dated and signed in the handwriting of
the testatrix has been disputed, the petitioners, however, have satisfactorily shown in
Court that the holographic will in question was indeed written entirely, dated and
signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly
shown knowledge of the handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which the holographic will
in question was written to be the genuine handwriting and signature of the testatrix.
Given then the aforesaid evidence, the requirement of the law that the holographic
will be entirely written, dated and signed in the handwriting of the testatrix has been
complied with.
CA: reversed. Decedent did not comply with Articles 813 and 814. It alluded to certain
dispositions in the will which were either unsigned and undated, or signed but not
dated. It also found that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent. It thus disallowed the probate of the will.
Issue: Should the will be disallowed for probate?
Ruling: NO.
1. In case of holographic wills, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, as provided
under Art. 810 of the CC: A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need not be
witnessed.
2. Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
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3. A reading of Art. 813 of the NCC 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.
4. Thus, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Art. 814. The Court in Kalaw vs. Relova ruled:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have not been noted under his signature, . . . the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1985.
5. Thus, unless the authenticated alterations, cancellations or insertions were
made on the date of the hologaphic will or on testator’s signature, their presence
does not invalidate the will itself. The lack of authentication will only result in
the disallowance of such changes.
6. The requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Art. 813 and 814 separate from that which
provides for the necessary conditions for the validity of the holographic will (Art.
810) . Only those requirements in Art. 810 are essential to the probate of a
holographic will.
THUS ANNIE SAND COULD NOT VALIDLY DISPOSE OF THE HOUSE AND LOT IN
CABADBARAN, AGUSAN DEL NORTE, IN ITS ENTIRETY.
*Go to Art. 817
VENTURA VS. VENTURA
106 Phil 1159
Facts: This involves the testate of Gregorio Ventura. The CFI removed Maria Ventura
as executrix and administatrix of the estate of Gregorio and instead appointed
appellees Mercedes and Gregoria.
- Maria : illegitimate daughter of Gregorio
- Miguel Ventura : son
- Juana are surviving wife
- Mercedes and Gregoria: Gregorio’s legitimate children with first wife Paulina;
but their paternity was denied by Gregorio in his will.
Dec 14, 1953 — Gregorio filed a petition for the probate of his will which did not
Mercedes and Gregoria. Maria, although an illegitimate child, was named and
appointed by Gregorio as the executrix of his will and administatrix of his estate.
The will was admitted to probate. Gregorio Ventura died on Sept 26, 1955.
Maria submitted an inventory of the estate of Gregorio.
The account of administration filed by Maria was oppsed by the Spouses Mercedes
(daughter) and Pedro Corpuz and Exequiel and Gregoria on the ground that the
account did not refect the true income of the estate and the expenses hich allegedly
are not administration expenses.
Issue: Whether the removal of Maria Ventura as executrix is legally justified.
Ruling: Under Article 854 of the Civil Code, "the pretention or omission of one, some,
or all of the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid insofar as they are not inofficious,"
and as a result, intestacy follows, thereby rendering the previous appointment of
Maria Ventura as executrix moot and academic. This would now necessitate the
appointment of another administrator.
Art. 815. When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by law of the country in
which he may be. Such may be probated in the Philippines.
Art. 816. The will of a alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed in
his country, or in conformity with those which this Code prescribes.
Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of the
country of which he is a itizen or subject, and which might be proved
and allowed by the law of his own country, shall have the same effect
as if executed according to the laws of the Philippines.
We ahve already discussed Articles 815 to 817 when we discussed the extrinsic
validity of wills. Let’s go to Art. 818.
MICIANO VS. BRIMO
50 Phil 867
The judicial administrator of the estate of Joseph G. Brimo filed a scheme of parition.
This was opposed by Andre Brimo, one of the brothers of the deceased. The
opposition was approved.
The opposition was based on the fact that the parition in question puts into effect the
provisions of Joseph Brimo’s will which are not in accordance with the laws of his
Turkish nationality, for which reason they are void being in violation of Art. 10 (now
Art. 16) of the CC which provides:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law of
the person whose succession is in question, whatever may be the nature of
the property or the country in which it may be situated.
Issue #1: Was the approval of the project of parition proper?
Ruling: YES.
1. Oppositor did not prove that said testamentary dispositions are not in
accordance with Turkish laws
2. He did not present any evidence showing what Turkish laws are on the matter,
and in the absence of evidence on such laws, they are presumed to be the same
as those of the Philippines.
3. The refusal to give the oppositor another opportunity to prove such laws is
proper for it is discretionary on the part of the trial court. The oppositor was
granted ample opportunity to introduce competent evidence.
4. There is no evidence in the record that the national law of the testator was
violated in the testamentary dispositions in question which, not being contrary to
our laws in force, must be complied with and executed.
8
Issue #2: Is the provision in the will which excludes the oppositor because of his act
of opposing the will for being violative of Turkish law, valid?
“Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free
choice, nor by nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in force in the
Philippine islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in this
will favorable to the person or persons who fail to comply with this request.”
Ruling: NO.
1. The institution of legatees in this will is conditional and that condition is that the
instituted legatees must respect the testator's will to distribute his property, not
in accordance with the laws of his nationality but in accordance with the laws of
the Philippines. This condition is void being contrary to law under Art. 792 which
provides that
Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide.
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2. It expressly ignores the testator’s national law when according to Art. 10 of the
CC, such national law of the testator is the one to govern his testamentary
dispositions.
Thus, the institution of legatees in said will is unconditional and consequently valid
and effective even as to herein oppositor. It results from all this that the second
clause of the will regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary to law. All of the
remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's
national law. Therefore, the orders appealed from are modified and it is directed that
the distribution of this estate be made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and the scheme of partition submitted
by the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
TESTATE ESTATE OF SUNTAY
GR L-3087 and L-3088, July 31, 1954
FACTS:
May 14, 1934 – Jose B. Suntay, a Filipino citizen and resident of the Philippines, died
in Amoy, Fookien, Republic of China. The value of the estate left by the deceased is
more than P50,000.
He left real and personal properties in the Philippines and a house in Amoy, Fookien
Province, China.
He has children in his first marriage with the late Manuela Cruz: Apolonio,
Concepcion, Angel, Manuel, Federico, Ana, Aurora and Emiliano. He has a child in his
2nd marriage with Natividad Lim Billian (still alive): Silvino.
Intestate proceedings were instituted in the CFI of Bulacan. Letters of administration
were issued to Apolonio Suntay. He was replaced by Federico Suntay when Apolonia
died.
October 15, 1934 – the surviving widow, Natividad filed a petition with the CFI of
Bulacan for the probate of a last will and testament claimed to have been executed
and signed in the Philippines on Nov. 1929 by the late Jose Suntay. This was denied
because of the loss of the said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the evidence to establish the loss of the
said will.
Despite of the deposition of Go Toh who attested that he witnessed the making of the
will, the probate court denied a motion for the continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed the petition.
After WW2, claiming that he had found among the files, records and documents of his
late father a will and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed, recorded and probated in
the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in
the intestate proceedings praying for the probate of the will executed in the
Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N)
CFI of Bulacan disallowed the alleged will and testament executed in Manila in
Novmber 1929 and the alleged last will and testament executed in Kulangsu, Amoy,
China on January 4, 1932, by Jose Suntay.
ISSUE #1: Are Silvino and Natividad estopped to have the alleged will of Jose Suntay
probated?
RULING: NO. There is no merit in the contention that the petitioner Silvino Suntay and
his mother Maria Natividad Lim Billian are estopped from asking for the probate of
the lost will or of the foreign will because of the transfer or assignment of their share
right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment
thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay,
for the validity and legality of such assignments cannot be threshed out in this
proceedings which is concerned only with the probate of the will and testament
executed in the Philippines on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to have been probated in the
municipal district court of Amoy, Fookien province, Republic of China.
First Exam
ISSUE #2: Has the right of Silvino and Nativided to have the will probated,
prescribed?
RULING: The dismissal of the petition for probate of the will on February 7, 1938 was
no bar to the filing of the petition on June 18, 1947, or before the expiration of 10
years.
ISSUE #3: Was there a will?
RULING:
AS TO THE LOST WILL, Sec. 6, Rule 77 provides: No will shall be proved as a lost or
destroyed will unless the execution and validity of the same be established, and the
will is proved to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the
court, and the certificate must be filed and recorded as other wills are filed and
recorded.
Those who testified to the provisions to the lost will of Jose Suntay are:
1) Manuel Lopez (attesting witness) – was dead at the time of the hearing of the
alternative petition
2) Go Toh – he attests to the fact that he was one of the witnesses of the will
which consists of 23 pages signed by Jose Suntay at the bottom of each in the
presence of Alberto Barretto, Manuel Lopez and himself; he did not take part in
the drafting; only that Jose told him that the contents thereof are the same as
that one which was in the office of Alberto Barretto; Mrs Suntay had the draft
of the will translated into Chinese and he read the translation; he did not read
the will and compare it to the draft
3) Ana Suntay -- Her father Jose Suntay left a will in the house of Apolonio
Suntay that she saw her brother Apolonio Suntay read the document in her
presence and of Manuel and learned of the adjudication made in the will by her
father of his estate, to wit: one-third to his children, one-third to Silvino and his
mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. ;  she
testifies that she read the part of the will on adjudication to know what was
the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies
that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto
4) Anastacio Teodoro – Go Toh left the will in Anastacio’s office. He attests to the
fact that the will was the same as the draft.
If the will was snatched, after the delivery of Go Toh to Anastacio sometime in January
1948, then the testimony of Ana Suntay that she heard her brother Apolinio Suntay read
the will in September 1934 must not be true.
The legal requirement that the provisions of the lost will must be “clearly and
distinctly proved by at least two credible witnesses” is not present. Credible
witnesses mean competent witnesses and those who testify to facts from or upon
hearsay are neither competent nor credible witnesses.
The testimony of Alberto Barretto corroborates that of Go Toh to the effect that only
one will was signed by Jose Suntay at his office in which Alberto barreto, Manuel
Lopez and Go Toh took part as attesting witnesses. Go Toh testified that he did not
leave the will in the hands of Anastacio Teodoro .
AS TO THE WILL CLAIMED TO HAVE BEEN EXECUTED on January 4, 1931 in Amoy,
China, THE LAW WHICH APPLIES ARE THE FF.:
Rule 78, Sec. 1. Wills proved and allowed in a foreign country, according to the laws
of such country, may be allowed, filed, and recorded by the proper CFI in the
Philippines.
Sec.2. When a copy of such will and the allowance   thereof, duly authenticated, is
filed with a petition for allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original will
presented for allowance.
Sec. 3. If it appears at the hearing that the will should be allowed in the Philippines,
the court shall so allow it, and a certificate of its allowance, signed by the Judge, and
attested by the seal of the courts, to which shall be attached a copy of the will, shall
be filed and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court.
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The fact that the municipal district court of Amoy, China, is a probate court must be
proved. The law of China on procedure in the probate or allowance of wills must also
be proved. The legal requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no proof on these points.
The unverified answers to the questions propounded by counsel for the appellant to
the Consul General of the Republic of China set forth in Exhibits R-1 and R-2,
objected to by counsel for the appellee, are inadmissible, because apart from the fact
that the office of Consul General does not qualify and make the person who holds it
an expert on the Chinese law on procedure in probate matters, if the same be
admitted, the adverse party would be deprived of his right to confront and cross-
examine the witness. Consuls are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal district court of Amoy were for
the purpose of taking the testimony of two attesting witnesses to the will and that
the order of the municipal district court of Amoy does not purport to probate the will.
In the absence of proof that the municipal district court of Amoy is a probate court
and on the Chinese law of procedure in probate matters, it may be presumed that the
proceedings in the matter of probating or allowing a will in the Chinese courts are the
a deposition or to a perpetuation of testimony, and even if it were so it does not
measure same as those provided for in our laws on the subject. It is a proceedings in
rem and for the validity of such proceedings personal notice or by publication or both
to all interested parties must be made. The interested parties in the case were known
to reside in the Philippines. The evidence shows that no such notice was received by
the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n.,
hearing of 24 February 1948). The proceedings had in the municipal district court of
Amoy, China, may be likened to or come up to the standard of such proceedings in
the Philippines for lack of notice to all interested parties and the proceedings were
held at the back of such interested parties.
The order of the municipal district court of Amoy, China which states that the
minutes of the interrogation of the parties who declare that there are no errors, after
said minutes were loudly read and announced actually in the court…. Does not
purport  to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles
followed in the probate and allowance of wills. Consequently, the authenticated
transcript of proceedings held in the municipal district court of Amoy, China, cannot
be deemed and accepted as proceedings leading to the probate or allowance of a will
and, therefore, the will referred to therein cannot be allowed, filed and recorded by a
competent court of this country.
Decision of the CFI is affirmed.
Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit of
a third person.
JOINT WILL
Art. 818 talks about joint wills. It says two or more persons cannot make a will jointly.
It could be either for their reciprocal benefit or for the benefit of a third person. The
will of 2 or more persons is embodied in one document.
A joint will has only 1 attesting clause, 1 set of dispositions which are jointly signed
by two testators. This is not allowed.
If the will had separate testamentary dispositions affixed by the respective testators,
only embodied in one docuement, then that is not a joint will. This kind of will would
be valid. Why? Because it is not executed jointly. Siguro nagtipid lang sila sa papel.
There are actually two wills here.
REASONS WHY JOINT WILLS ARE NOT ALLOWED: (5)
1) It destroys the character of a will as a strictly personal act
• it ceases to be personal when it is jointly executed
2) It tends to convert a will into a contract
• two people would tend to make the dispositions of one dependent
on the dispositions of another
• this cannot be because wills are unilateral whereas contracts are
bilateral
3) It runs counter to the idea that wills are essentially revocable
• one of the characteristics of a will is that it is essentially revocable
or ambulatory
• it would be difficult to revoke such without the other’s intent to
revoke
3) It may subject one to undue influence and induce parricide if reciprocal
• this is the usual reason given why joint wills are not allowed
• joint wills are usually executed by spouses, one might be induced or
tempted to kill the other in order to advance the transfer of
properties
4) It makes probate much more difficult in case of testators at different times
JOINT WILL, as defined — one where the same testamentary instrument is made a will
of two or more persons; and is jointly executed and signed by them
Is a joint will synonymous to a mutual or reciprocal will?
No. A mutual or reciprocal wills are the separate wills of two persons which are
reciprocal in their provisions giving the separate property of each testator to the
other. They are executed with the common intention on the part of the testators
irresepctive of whether there is a contract between them — Although the contractual
element is often involved.
- mutual or reciprocal wills are also called twin wills
- Is it valid? There is no prohibition. They are valid provided that they are not
joint wills or not in the nature of disposition captatoria.
- What is prohibited are joint wills.
- and also those in the nature of disposition captatoria — which makes wills like
contracts
Ex. I will give A my land in Davao City provided that he give me the land in
Samal Island.
DELA CERNA VS. POTOT
GR L-20234, Dec 23, 1964
Facts: The Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last
will and testament in the Visayan language.
They stated therein that their 2 parcels of land acquired during their marriage
together with all improvements thereon shall be given to Manuela Rebaca, who they
have nurtured since childhood, because God did not give them any child in their
union.
Bernabe dela Serna died on Aug 30, 1939 and the will was submitted to probate by
Gervasia and Manuela before the CFI of Cebu. There was no opposition. The CFI
admitted the will to probate.
When Gervacia Rebaca died on October 14, 1952 another petition for the probate of
the same will insofar as Gervasia was concerned was filed on November 6, 1952.
Because of the failure of Manuela and her attorney to appear for the hearing of the
said petition, the case was dismissed on March 30, 1954.
CFI: ordered the petition heard and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818 of the CC of the Philippines)
CA: reversed on the ground that the decree of probate in 1939 was issued by a court
of probate jurisdiction and conclusive on the due execution of the testament.
It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits
the making of a will jointly by two or more persons either for their reciprocal
benefit or for the benefit of a third person. However, this form of will has
long been sanctioned by use, and the same has continued to be used; and
when, as in the present case, one such joint last will and testament has been
admitted to probate by final order of a Court of competent jurisdiction, there
seems to be no alternative except to give effect to the provisions thereof
that are not contrary to law, as was done in the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the
provisions of the joint will therein mentioned, saying, "assuming that the
joint will in question is valid."
The heirs intestate of the deceased husband Bernabe filed an appeal. They contend
that because the will is void, it cannot be validiated.
Issue: Is the will valid?
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Ruling:
THE WILL IS VALID INSOFAR AS BERNABE’S ESTATE IS CONCERNED.
1. The final decree of the probate entered in 1939 (when the testator, Bernabe de la
Cerna, died) has conclusive effect as to his last will and testament despite the
fact that the Civil Code already decreed the invalidity of joint wills. A final
judgement rendered on a petition for the probate of a will is binding upon the
whole world and public policy and sound practice demand that at the risk of
occasional errors judgement of courts should become final at some definite date
fixed by law.
2. Petitioners as heirs and successors of the late Bernabe are concluded by the
1939 decree admitting his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision on Whether an act is
valid or void rests with the courts, and here they have spoken with finality when
the will was probated in 1939. On this court, the dismissal of their action for
partition was correct.
WILL IS VOID INSOFAR AS GERVACIA’S ESTATE IS CONCERNED.
1. To avoid misunderstanding, that the probate decree in 1989 could only affect
the share of the deceased husband Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive,
and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it
remembered that prior to the new Civil Code, a will could not be probated during
the testator's lifetime.
2. The validity of the joint will, in so far as the estate of the wife was concerned,
must be on her death, re-examined and adjudicated de novo, since a joint will is
considered a separate will of each testator.
3. CFI is correct in holding that the joint will is one prohibited by law for reasons the
SC stated in Bilbao vs. Bilbao:
WHY ARE JOINT WILLS VOID? The provision of article 669 of the Civil Code
prohibiting the execution of a will by two or more persons conjointly or in the
same instrument either for their reciprocal benefit or for the benefit of a third
person, is not unwise and is not against public policy. The reason for this
provision, especially as regards husband and wife is that when a will is made
jointly or in the same instruments, the spouse who is more aggressive,
stronger in will or character and dominant is liable to dictate the terms of
the will for his or her own benefit or for that of third persons whom he or she
desires to favor. And, where the will is not only jointly but reciprocal, either
one of the spouses who may happen to be unscrupulous, wicked, faithless
or desperate, knowing as he or she does the terms of the will whereby the
whole property of the spouses both conjugal and paraphernal goes to the
survivor, may be tempted to kill or dispose of the other.
4. EFFECT: The undivided interest of Gervasia Rebaca should pass upon her death
to her heirs intestate, and not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless she be the only heir
intestate of said Gervasia.
5. It is unnecessary to emphasize that the fact that joint wills be in common usage
could not make them valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance.
Note:
Remember in this case, even if the joint will was already admitted to probate in the
1939 decree and that became final and executory, that is conclusive only as to the
estate of the husband. With respect to the wife, that is another proceeding. The SC
said that upon the wife’s death, the joint will presented for probate must be re-
examined and adjudicated de novo. There must be a new determination as to whether
the will is valid.
The court is not bound by that 1939 case.
Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines, even
though authorized by the laws of the country where they may have
been executed.
Referring to joint wills, Art. 819 says:
If executed by Filipinos in a foreign country — still not valid in the Philippines
- prohibition against the execution of joint wills applies to Filipinos
- this is an exception to the lex loci celebrationis principle [Art. 815 and 17]
- Art. 818 merely prohibits joint wills in general; while Art. 819 clarifies that
even when a Filipino executes a joint will abroad, such will would still not be
valid
- it is still void even if authorized by the law of the country where the joint will
was executed
Examples of countries which allow joint wills: Mexico, Argentina, Brazil, France
Art. 819 applies to Filipinos. How about foreigners?
Will is executed in Mexico
The will is executed in Mexico, a Filipino husband and the Mexican wife,
executed a joint will. They have properties in Mexico and the Philippines. Is the
will valid? In Mexico, joint wills are allowed. Is it recognized in the Philippines?
Remember the principle behind joint wills, even if there is only one will, that is
the separate wills of two or more persons.
With respect to the Filipino spouse, Art. 818 and 819 provide that the joint will
shall not be recognized. Will is not valid.
With respect to the foreigner spouse, we apply the general rule on lex loci
celebrationis. Art. 17. If that will is valid and recognized in the place of
execution, it will be valid in the Philippines. Also the same with Art. 815. Will is
valid.
Will is executed in the Philippines
As to the Filipino spouse — joint will is void
As to the Mexican spouse — there are 2 views:
(1) The will is valid if the place of her nationality allows joint wills — The
Mexican spouse’s country allows joint wills. So applying Art. 816, she can
execute the will in accordance with the formalities prescribed by the law of
her nationality. If it is valid according to her national law, it is valid here.
(2) The will is void — since the will is executed here in the Philippines, we can
apply the 3rd par. of Art 17 which says prohibitive laws, concerned in
persons, their acts or property and those which have for their object public
order, public policy and good customs, shall not be rendered ineffective by
laws or judgements promulgated or by determination or conventions agreed
upon in a foreign country. So our laws relating to joint wills, Art. 818 is an
expression of public policy. This cannot be subordinate to the laws of
foreign countries.
Which is the more prevailing view? There is no prevailing view. Still subject to
argument. If asked, must say the 2 views.
If you are hired by a foreign client who executed a joint will here in the Philippines —
you can cite Art. 816 and say that the will is valid. Since the joint will is in accordance
with his national law then it should be valid here in the Philippines.
If you are the oppositor, you can argue in accordance to Art. 17 par. 3.
Subsection 4.
Witnesses to Wills
Art. 820. Any person of sound mind and of eighteen years or more, and
not blind, deaf or dumb, and able to read and write, may be a witness
to the execution of a will mentioned in Article 805 of this Code.
We are referring to witnesses in notarial wills. Witnesses are not required in
holographic wills.
Art. 820 refers to the qualifications of the attesting witnesses.
REQUISITES TO BE AN INSTRUMENTAL WITNESS:
(1) sound mind
(2) at least 18 years old
(3) not blind, deaf or dumb
(4) able to read and write
A witness has more qualifications than the testator who should only be at least 18
years old and of sound mind at the time of the execution of the will.
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Let’s discuss the disqualifications before we go to the qualifications.
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
If we merge Art. 820 and 821, these are the COMPLETE QUALIFICATIONS OF A
WITNESS:
(1) sound mind
(2) at least 18 years old, at the time of the attestation/execution of the will
(3) not blind, deaf or dumb
(4) able to read and write
(5) domiciled in the Philippines (habitual residence Art. 50)
(6) not been convicted of falsication of a document, perjury or false testimony
- must be convicted by final judgement
- What if pardoned? Depends. Maybe if the pardon by reason of
innocence.
Blind persons — can be testators ; but are disqualified to be a witness
Deaf persons — with respect to witness, they are supposed to be able to attest that
the will was executed in their presence; the deaf person can actually see, but why is
he disqualified? Because it would be difficult to extract his testimony during probate.
Dumb and illiterate persons — can see/hear but they cannot understand; will be
difficult in the probate proceedings
Domiciled in the Philippines — the reason why they have to be domiciled in the
Philippines is that their participation is not limited during the execution of the will;
they will be called again in the future to testify; and if they are domiciled abroad
chances are at the time they are called to testify, they cannot be reached by court
processes
- this will only refer to those wills which are executed in the Philippines
- it would be absurd to require Filipinos abroad to look for witnesses who are
from the Philippines; anyway the Filipino abroad can just follow the legal
formalities prescribed in Africa
When you say “domicile” you can refer to Art. 50 of the CC: For the exercise of
civil rights and fulfillment of civil obligations, the domicile of natural persons is
the place of their habitual residence.
ESSENTIAL ELEMENTS OF RESIDENCE IN ART. 50.
(1) The fact of residing or the physical presence in a fixed place
(2) The intention of remaining permanently, or the animus manendi
The absence of the person from his residence for years, does not make
him lose his residence. As long as he has the intent to return to that
place, then that remains to be his domicile for the purpose of execution
of a will.
Must not be convicted of Falsification of a Document, Perjury or False Testimony
Take note of these crimes:
(1) Falsification of a Document
(2) Perjury
(3) False Testimony
These crimes would refer to the ability of the person to tell the truth.
The conviction here must by final judgement of these crimes.
If your witnesses is a murderer, rapist, he can be a witness. Dibale nang rapist siya
basta hindi siya sinungaling.
What if the witness was pardoned? It depends.
If the pardon was given because he was later found to be innocent — he is
qualified
If the pardon is by reason of an executive clemency, you are still disqualified
because the pardon erases only the penalty or the civil consequences of the
conviction but it does not change the fact that you are dishonest and
untrustworthy.
Can a notary public be an attesting witness? He is disqualified to become a witness
for the reasons discussed in the case of Cruz vs. Villasor. But he is not disqualified to
perform the acts of the notary public.
- if there are only 3 witnesses and the notary public is one of them, the will is
void
- if there are 4 witnesses, the notary public being the fourth, the will is valid
because the 3-witness rule was complied with
CRUZ VS. VILLASOR
54 SCRA 31
Facts: Manuel Lugay filed a petition for the probate of the will of the deceased,
Valente Cruz. This was opposed by the Agapita Cruz, the surviving spouse of the
deceased.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-
appellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence,
p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.
Issue: Whether the will is valid.
Ruling: THE WILL IS NOT VALID.
1. 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
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. To permit such a situation to obtain would be sanctioning a sheer
absurdity.
2. THE FUNCTION OF A NOTARY PUBLIC WOULD BE DEFEATED IF THE NOTARY
PUBLIC WERE ONE OF THE ATTESTING INSTRUMENTAL WITNESSES. His function as
a notary public is, among others, to guard against any illegal or immoral
arrangement. For them he would be interested sustaining the validity of the will as it
directly inolves him and the validity of his own act. It would place him in an
inconsitent position and the very purpose of the aknowledgement, which is to
minimize fraud would be thwarted. (there is a conflict of interest)
EFFECT: TO ALLOW THE NOTARY PUBLIC TO ACT AS 3RD WITNESS OR ONE THE
ATTESTING AND ACKNWLEDGING WITNESSES, WOULD HAVE THE EFFECT OF
HAVING ONLY 2 WITNESSES TO THE WILL WHICH WOULD BE IN CONTRAVENTION
OF THE PROVIONS OF ART. 805 AND 806 WHICH REQUIRES THAT THE TESTATOR nd
the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.
KINDS OF WITNESSES
- marginal witnesses
- instrumental witnesses
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- attesting witnesses
- credible witnesses
Gonzales vs. CA discusses witnesses in notarial wills. This involved a probate
proceeding.
The oppositor in the probate proceeding argued that when you say credible
witnesses, there has to be a separate proceeding to determine their credibility. So
you cannot just call these witnesses to the witness stand and ask them to testify
directly as to the facts which attended the execution. There has to be separate and
independent evidence to prove their credibility. The oppositor cited the rules on
naturalization proceedings because therein, before the witnesses are presented there
are other evidences submitted to prove their credibility.
SC said that there is no such requirement. When you say credible witnesses under
Articles 820 and 821, in relation to Art. 805. Credible witnesses mean competent
witnesses and not those who testify facts which are hearsay. In the strict sense, the
competency of a person to be an instrumental witness is determined by the statute
that are Articles 820 and 821 of the NCC.
Whether a witness is competent is determined by referring to Articles
820 and 821. He is competent if he has all qualifications in Art. 820 and none
of the disqualifications under Art. 821.
His credibility, depends upon the appreciation of his testimony and
arises from the belief and conclusion of the court that the said witness is
telling the truth. That can be assessed during the time he is called to testify.
During his testimony, while he testifies to facts which occurred during the
execution of the will, the court can also observe his demeanor — whether he
is telling the truth.
There is no mandatory requirement that the witnesses testify initially or at any time
during the trial as to his good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court.
- in naturaliztion proceedings, the witnesses there are called character
witnesses as they testify as to the character of the foreigners who are
applying to be naturalized
- a probate proceeding is different than naturalization proceedings
- the witnesses in probate proceedings are not character witnesses because
even if the testator is a criminal, he can execute a will, as long as all the
requirements are complied with
GONZALES VS. CA
Facts: Private Respondent Lutgarda Santiago (nieces) filed a petition for the probate
of the will of Isabel Gabriel who designated Petitioner Rizalina Gabrial Gonzales as a
the principal beneficiary and executrix. The testatrix died as a widow and without
issue, at the age of 85.
Petitioner contends that he will is void because there is no proof that the 3
instumental witnesses were credible witnesses. That the requirement in Art. 806 that
the witnesses must be credible is an absolute requirement which must be complied
with before an alleged last will and testament may be admitted to probate and that to
be a credible witness, there must be evidence on record that the witness has a good
standing in his community, or that he is honest and upright, or reputed to be
trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends that
the term "credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be credible as
required by Article 805 of the same Code. It is further urged that the term "credible"
as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wigs with respect to the qualifications of witnesses.
Issue: Whether the will was executed and attested as required by law.
Ruling:
ART. 820 PROVIDES THE QUALIFICATONS OF A WITNESS TO THE EXECUTION OF
WILLS WHILE ART. 821 SETS FORTH THE DISQUALIFICATION FROM BEING A
WITNESSES TO A WILL. There is no mandatory requirement that the witnesses testify
initially or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough
that the qualifications enumerated in Article 820 of the Civil Code are complied with,
such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from
his appearance, testimony , or competently proved otherwise, as well as the fact that
he is not blind, deaf or dumb and that he is able to read and write to the satisfaction
of the Court, and that he has none of the disqualifications under Article 821 of the
Civil Code. We reject petitioner's 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.
THE MEANING OF ‘CREDIBLE’ IS NOT THE SAME AS THE ONE USED IN THE
NATURALIZATION LAW. In the latter, it is mandatory that the petition for
naturalization must be supported by 2 character witnesses who must prove their
good standing in the community, reputation for trustworthiness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the Act
and a person of good repute and morally irreproachable and that said petitioner has
in their opinion all the qualifications necessary to become a citizen of the Philippines
and is not in any way disqualified under the provisions of the Naturalization Law
(Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testatment and
affirm the formalities attendant to the execution. Court found each of the 3
instumental witnesses to be competent and credible — supported by the
evidence found by the CA which the SC is bound to accept. Lutgarda also has
not alleged that the instrumental witnesses are disqualifie, much less that it
is shown that anyone of them is below 18 years of age, of unsound mind,
deaf or dumb, or cannot read or write.
While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires the attestation
of three or more credible witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible witness under Article
805. She says that competency is different from credibility. That there is no evidence to
show that the instrumental witnesses are credible in themselves.
It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria
Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much less the
humble or financial position of a person do not disqualify him to be a competent
testamentary witness.
As to the contention that the qualifications of the 3 or more credible witnesses
mentioned in Art. 805 are those mentioned in Art. 820. Thus in Suntay vs. Suntay the
Court held that “granting that a will was duly executed and that it was in existence at
the time of, and not revoked before the death of the testator, still the provisions of the
lost will must be clearly and distinctly proved by at least 2 credible witnesses. Credible
witnesses mean competent witnesses and not those who testify to facts from or upon
hearsay.
***THE COMPETENCY OF A PERSON TO BE AN INSTRUMENTAL WITNESS TO A WILL
IS DETERMINED BY THE STATUTE, THAT IS ART. 820 AND 821. HIS CREDIBILITY
DEPEDNS ON THE APPRECIATION OF HIS TESTIMONY THAT ARISES FROM THE
BELIEF AND CONCLUSION OF THE COURT THAT THE SAID WITNESS IT TELLING THE
TRUTH. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, 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."
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
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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. We, therefore,
reject petitioner's position that it was fatal for respondent not to have introduced
prior and independent proof of the fact that the witnesses were "credible witnesses
that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Art. 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will.
These qualifications must be present during the execution of the will. If after the
execution of the will, the witness becomes blind, convicted of a crime, as long as all
the requirements at the time of the execution were complied with, then the will is
valid.
What about during probate the witness becomes blind?
With respect to the qualifications during the execution of the will, we follow Art. 820
and 821. With respect to his qualifications to testify during probate, we follow the
Rules of Court.
QUALIFICATIONS OF WITNESSES IN PROBATE PROCEEDINGS
Sec. 20 of Rule 130 of the Rules of Court:
x x x all persons who can perceive, and perceiving, can make their
known perception to others, may be witnesses.
With respect to probate of holographic wills, the qualification of the witnesses is that
they know the signature and the handwriting of the testator.
What if during the probate proceedings, the witnesses are not available, does this
mean that the will would not be admitted to probate?
In case the witnesses have become insane, are not domiciled in the Philippines,
passed away, in notarial wills — other witnesses may be allowed.
Art. 823. If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a device or legacy is given by such
will, such devise or legacy shall, so far only as concerns such person,
or spouse or parent or child of such person, or any one claiming under
such person or spouse, or parent, or child, be void unless there are
three other competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or legacy had
not been made or given.
This refers to that scenario where a witness is also an heir/legatee/devisee.
The witness is A but A’s spouse/parent/child is a legatee/devisee/heir.
What happens to the will? Valid?
Will is still valid but that person is also an heir/legatee/devisee forfeits his
inheritance or devise.
Why is there this qualification? To prevent conflict of interest.
What if the witness is the compulsory heir, is the legitime forfeited? NO,
because the law provides for the legitime. However, that compulsory heir
forfeits what is over and above the legitime.
The same thing happens if he is a witness and the spouse/parent/child is a legatee or
devisee of heir. So the legacy, devise is forfeited.
Law says : or Anyone claiming under such person/spouse/parent/child.
Example: A has been instituted as an heir/legatee/devisee in the will. At the
same time he is also a witness. As we have said, he is disqualified to become
a legatee/heir/devisee. If A has a creditor who claims under him, such
creditor, will not be paid.
When we go to acceptance and repudiation, there is a provision which states
that when an heir renounces his inheritance to the detriment or prejudice of
his creditors, the creditor may petition the court to receive the inheritance.
This is allowed since that is the only way the creditor can be paid.
Would be different if:
A is a witness. X is A’s creditor. X is instituted as an heir. X is not disqualified
because he is an instituted heir himself. He is not just claiming under A or
the spouse/child/parent of A.
Art. 824. A mere change on the estate of the testator for the payment
of debts due at the time of the testator’s death does not prevent his
creditors from being competent witnesses to his will.
Illustration:
X is a creditor of the testator. The testator provided that he is bequeathing P1M as
payment of his debt to X. At the same time, X is a witness to the will of the testator. Is
X disqualified to receive that P1M? The law says, NO.
X, even if he is a creditor, can still act as a witness. At the same time, the
P1M allocated in the payment of his credit, can still be received by X since it
is a debt due to him. The estate in all circumstances, with or without a will, it
will be under the obligation to pay his debt to X.
The creditors can still act as a witness. Even if in the will, a part of the estate is left to
him as payment of the debt of the testator, the creditor is entitled to that part.
It would be a different story if the creditor gets more than what is due to him. He
forfeits the amount above his debt.
CALUYA VS. DOMINGO
27 SCRA 330
Facts: The CFI of the Province of Ilocos Norte denied the probate of the will of ___ on
the following grounds:
(1) although the testator has signed by mark, it did not appear in the will who
had written the signature or that it had been written at his request
(2) the witness, Antonio Pandaroan could not really have signed the attestation
clause because at the time it was executed, he was attenting a session of
the municipal council of Piddig as a member thereof
(3) As to the other witness, Segundino Asis, the will mentioned and confirmed a
sale of land to him by the testator and he being thereby an interested party
his testimony could not be believed
Issue: Should the will be admitted to probate?
Ruling: YES.
1. Sec. 618 does not require that where the testator is unable to write, the fact that
his signature was written by some other peron, at his request and express
direction, should appear in the body of the will itself. It provides that the
attestation clause shall state the fact that the testator signed the will, or caused
it to be signed by some other person, at his express direction, in the presence of
the witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and attested
as in this section provided."
2. The attestation clause complies with Sec. 618. Moreover, it appears clearly
proved in evidence that the name of the testator was signed by another person at
his request and under his direction and in his presence and in the presence of the
witnesses to the will. From the reading of Sec. 618, if the attestation clause is
defective, or even absent, the will is nevertheless valid provided it is satisfactorily
proved that it was in fact signed and executed as provided by law.
Issue #2: Whether Antonino Pandaraoan could not have signed the will as a witness
because he was attending a meeting of the municipal council of Piddig.
Ruling:
WITHOUT MERIT. It does not appear in the evidence of the opposition that the
witness Pandaraoan was attending a meeting of the municipal council of Piddig from
something like 10 o'clock till 12.30 o'clock of the day on which the will was executed
ands that the will was executed sometime between 10 and 12 o'clock. To much
weight, however, can not be given to the testimony relative to the precise time of the
execution of the will. The barrio of Piddig is only a short distance from the house in
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which the will was executed and it would have taken but a short time to cover the
distance. the witness Pandaraoan himself testified directly and positively that, after
having left the meeting of the municipal council, he went to the house of the testator
by appointment and there signed the will as stated in the attestation clause.
All of the witnesses to the will unite in declaring that they were there
present at the time the will was executed and that they signed as witnesses in the
presence of the testator and of each other. The mere fact that there was a session of
the municipal council of Piddig about the same time that the will was executed is not
necessarily conclusive against the fact that Antonino Pandaraoan was present and
signed as a subscribing witness as he declares. Mistakes in time are easily made
among witnesses who measure time not so much by clocks or watches as by the sun.
Antonino Pandaraoan testified that the municipal council began its session about 10
o'clock; that in order to attend the execution of the will, as he had agreed with the
notary public he would do, he was obliged to leave the session before it terminated;
that he so left the session, mounted a horse and arrived at the house of the testator
at about 12 o'clock, in time to take part in the execution of the ill as stated in the
attestation clause.

Issue #3: Whether the testimony of Asis should be given credence when he is an
interested party in the will.
Ruling:
NO INTEREST OF ANY KIND WAS CREATED BY THE WILL IN FAVOR OF SEGUNDINO
ASIS, NOR DID IT CONVEY OR TRANSFER ANY INTEREST TO HIM. Nothing in the will
before us relative to the sale of land to Asis creates such an interest therein as falls
within Sec. 622. It simply mentioned a fact already consummated, a sale already
made. Even if, however, the will had conveyed an interest to Segundino Asis, it would
not have been for that reason void. Only that clause of the will conveying an interest
to him would have been void; the remainder could have stood and would have stood
as a valid testament.
Sec. 622 provides: If a person attests the execution of a will, to whom
or to whose wife or husband, or parent, or child, a beneficial devise, legacy, or
interest, of or affecting real or personal estate, is given by such will, such
devise, legacy, or interest shall, so far only as concerns such person, or the
wife or husband, or parent or child of such person, or anyone claiming under
such person or such wife or husband, or parent or child, be void, unless there
are three other competent witnesses to such will, and such person so
attesting shall be admitted as a witness as if such devise, legacy, or interest
had not been made or given. But a mere charge on the real or personal estate
of the testator, for the payment of debts, shall not prevent his creditors from
being competent witnesses to his will.

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