SEMINAR 1

BY: MR. MARK GREGOR L. UDAUNDO

ADOPTION

• It is a juridical act which creates between two persons

a relationship similar to that which results from
legitimate paternity and filiation.

• The law merely creates by fiction a relation which did

not in fact exist.
RA 8552: Domestic Adoption Act of1998
Who may adopt?
Section 7, RA 8552
• 1) Any Filipino citizen who is of legal age, possessing full civil
capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally
and psychologically capable of caring for children, at least
sixteen years older than the person to be adopted, and who is in
a position to support and care for his/her children in keeping
with the means of the family;
2) Any alien who possesses the same qualifications above stated for Filipino
nationals, provided:
a) The alien's country has diplomatic relations with the Republic of the
Philippines;
b) The alien has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adopted and maintains
such residence until the adoption decree is entered;
c) The alien has been certified by the diplomatic or consular office or any
appropriate government agency that he/she has legal capacity to adopt in
his/her country;
d) That the alien's government allows the adoptee to enter the alien's
country as his/her son or daughter.
• Who may be adopted?
• (a) Any person below eighteen (18) years of age who has been administratively or
judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status
to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her own child since
minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died: Provided, that no
proceedings shall be initiated within six (6) months from the time of death of said
parent(s). (Section 8, RA 8552)
RA 8043: Inter-Country Adoption Act of 1995

• It refers to the socio-legal process of adopting a Filipino child

by a foreigner or a Filipino citizen permanently residing
abroad where the petition is filed, the supervised trial
custody is undertaken, and the decree of adoption is issued
outside the Philippines.
Who May Adopt
• An alien or a Filipino citizen permanently residing abroad may file an
application for inter-country adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at least sixteen (16)
years older than the child to be adopted, at the time of application unless
the adopter is the parent by nature of the child to be adopted or the
spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law;
• (f) is in a position to provide the proper care and support and to give the
necessary moral values and example to all his children, including the child to
be adopted;
(g) agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and to abide
by the rules and regulations issued to implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized and
accredited agency and that adoption is allowed under his/her national laws;
and
(i) possesses all the qualifications and none of the disqualifications
provided herein and in other applicable Philippine laws.
Who May be Adopted

• Only a legally free child may be the subject of inter-country

adoption. In order that such child may be considered for
placement, the following documents must be submitted to the
Board:
• (a)Child study;
(b)Birth certificate/foundling certificate;
(c)Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
(d)Medical evaluation /history;
(e)Psychological evaluation, as necessary; and
(f)Recent photo of the child.
 • Question: I am a mother of five children and
expecting another one on the way. My sister
cannot bear children. Due to financial
difficulties, I offered my sister the idea of
adopting my sixth child. My sister agreed. After I
gave birth to a child, we executed a notarized
Adoption Agreement.
• Was the adoption valid?
 • My husband, A, and I are best friends with our
neighbors, B and C. They have a child, E.
Whenever B and C are out of town on business
trips, they leave E with us. A is an OFW working in
Dubai. During B and C's trip to the US, their plane
met an accident and both of them died. Since A is
out of the country, I filed a petition to adopt E. I
attached to the petition A's Affidavit of Consent.
Will the petition prosper?
• What are the instances when the husband or the wife
may adopt on his or her own?
• Husband and wife must jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt his own illegitimate
child; or
(2) When one spouse seeks to adopt the legitimate child
of the other; or
(3) When the spouses are legally separated.
• My husband and I adopted A since his parents
died and he has no known living relatives
anymore. We did not know A that much but his
parents are very close to us. He seemed like a
sweet and charming boy. However, after only 2
months with us, A became rebellious and
spoiled. He disrespects us and tells us that we
are not his true parents anyway. May we
rescind the adoption and place him in an
orphanage instead?
• Adoption, being in the best interest of the
child, shall not be subject to rescission by
the adopter(s). Sec.19
•May the adoptee rescind
the adoption?
• The adoptee, who is at least 18 years old or assisted by the
Department of Social Welfare and Development (DSWD) or his
guardian or counsel if he is a minor or incapacitated, may rescind
the adoption by filing a verified petition for such purpose. The
adoptee may rescind the adoption based on the following grounds
when committed by the adopter:
1) repeated physical and verbal maltreatment by the adopter despite
having undergone counseling;
2) attempt on the life of the adoptee;
3) sexual assault or violence; or
4) abandonment or failure to comply with parental obligations.
Parental Authority

• It is the mass of rights and obligations which parents

have in relation to the person and property of their
children until their emancipation, and even after this
under certain circumstances.
Article 209

• 1. The caring for and rearing of children for civic

consciousness and efficiency;
2. The development of the moral, mental and
physical character and well-being of said
children
• Rules as to the exercise of parental authority:

1. The father and the mother shall jointly exercise

parental authority over the persons of their common
children. In case of disagreement, the father's decision
shall prevail, unless there is a judicial order to the
contrary (Art. 211 FC)
• Characteristics of parental authority:
1. It is a natural right and duty of the parents (Art. 209 FC)
2. It cannot be renounced, transferred or waived, except in
cases authorized by law (Art 210 FC)
3. It is jointly exercised by the father and the mother (Art.
211 FC)

4. It is purely personal and cannot be exercised through

agents
5. It is temporary
• Parental Preference Rule

The natural parents, who are of good character

and who can reasonably provide for the child, are
ordinarily entitled to custody as against all
persons.
• Tender Years Presumption
NO child under 7 years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.

Examples of compelling reasons are:

When the mother is insane;
with a communicable disease that mightendanger the life or health of
the child;
is maltreating the child; or
has another child by another man who lives with her. (Cervantes v.
Fajardo, 1989)

• [NOTE: Prostitution or infidelity to husband does not make a mother unfit as

parent.]
• Substitute parental authority exercised by (in order):
1. The surviving grandparent (Art. 214 FC)
2. Oldest brother or sister, over 21 years old, unless unfit
or unqualified (Art. 216 FC par2).
3. Child’s actual custodian, over 21 years old, unless
unfit or unqualified (Art. 216 FC par 3)

• NOTE: The same order applies to the appointment of

judicial guardian.
• Special parental authority exercised by (Art.
218 FC)
1. School, its administrators and teachers, or
2. The individual, entity or institution engaged
in child care.
Substitute Parental Authority Special Parental Authority
It is exercised in case of death,
absence, or in case of
unsuitability of parents.
It is exercised concurrently with the
parental authority of the parents and
rests on the theory that while the child
is in the custody of the person
exercising special parental authority,
the parents temporarily
relinquish parental authority over the
child to the latter.
• Doctrine of in loco parentis- “in the place of a parent”.

• The Palisoc Doctrine- the idea that teachers are

responsible for the acts of their students, not only minors
but those emancipated as well.
• “While in the case of parents and guardians, their authority and supervision
over the children and wards end by law upon the latter reaching majority
age, the authority and custodial supervision over pupils exist regardless of
the age of the latter.
• A student over twenty-one, by enrolling and attending a school, places
himself under the custodial supervision and disciplinary authority of the
school authorities, which is the basis of the latter’s correlative responsibility
for his torts, committed while under such authority. Of course, the teachers’
control is not as plenary as when the student is a minor; but that
circumstance can only affect the decree of the responsibility but cannot
negate the existence thereof. It is only a factor to be appreciated in
determining whether or not the defendant has exercised due diligence in
endeavoring to prevent the injury, as prescribed in the last paragraph of
Article 2180.”
 Credit Transaction

Types of Credit Transactions

• Secured transactions or contracts of real security – Those

supported by collateral or an encumbrance of property

• Unsecured transactions or contracts of personal security – Those

the fulfillment of which by the principal debtor is secured or
supported only by a promise to pay or the personal commitment of
another such as a guarantor or surety
• SECURITY - something given, deposited or serving as a means to
ensure the fulfillment or enforcement of an obligation or of
protecting some interest in property.

• 2 TYPES OF SECURITY
1. Personal Security – as when an individual becomes a surety or a
guarantor
2. Real Security - as when a mortgage, pledge, antichresis, charge or
lien or other device used to have property held, out of which the
person to be made secure can be compensated for loss. Thus, a
secured creditor is one who holds a security from his debtor for
payment of the latter’s debts.
 Loan (Art. 1933)

• By the contract of loan, one of the parties

delivers to another, either something not consumable so
that the latter may use the same for a certain time and
return it, in which case the contract is called a
commodatum; or money or other consumable thing, upon
the condition that the same amount of the same kind and
quality shall be paid, in which case the contract is simply
called a loan or mutuum.
 Characteristics of a Loan

Real contract
1. delivery is essential for perfection of the contract of
loan.
2. An accepted promise to loan, is nevertheless binding
on the parties, it being a consensual contract.
Unilateral contract
1. creates obligations on only one party, i.e., the
borrower
2. In a contract of loan, the cause is, as to the
borrower, the acquisition of the thing, and as to the lender,
the right to demand its return or its equivalent.
CAUSE OR CONSIDERATION IN A CONTRACT OF LOAN
• For the borrower—the acquisition of the thing

• For the lender - the right to demand its return or its

equivalent
 KINDS OF LOAN

• 1. COMMODATUM—
where the bailor delivers to the bailee a non
consumable thing so that the latter may use it for a
certain time and return the identical thing
• 2. SIMPLE LOAN OR MUTUUM—
where the lender delivers to
the borrower money or other consumable thing upon th
e condition that the latter shall pay he same amount of the
same kind and quality
 NATURE OF COMMODATUM
1. COMMODATUM IS ESSENTIALLY GRATUITOUS
a. A commodatum is essentially gratuitous
b. The contract ceases to be a commodatum if anycompensation is to
be paid by the borrower who acquires the use
c. A commodatum is similar to a donation in that it confers a benefit
to the recipient
2. EXTENT OF BAILEE’S RIGHT TO USE is limited to the thing
loaned but not to the fruits unless there is stipulation to the contrary
a. As the bailor is the owner of the thing loaned, the bailor is naturally
entitled to its fruits
3. CAN THERE BE A STIPULATION GRANTING THE BAILEE USE OF THE
FRUITS? Of course. The law sanctions such stipulation BUT such use should only be
incidental and not the main cause of the contract. Because if it is the main cause,
then the contract may that one of a usufruct.
• 4. The PURPOSE of a commodatum is the temporary use of thing
loaned
a. If the bailee is not entitled to the use of the thing loaned, the
contract may be that of deposit
5. The SUBJECT MATTER is generally a non-consumable things,
whether real or personal
a. It may be the case that the purpose is for
exhibition only of the thing loaned. If this is thecase, then
the subject matter may be that of a consumable thing
6. Commodatum is PURELY PERSONAL in character.
DEPOSIT

• It is a contract constituted from the moment a

person receives a thing belonging to another, with
the obligation of safely keeping it and of returning
the same. If the safekeeping of the thing
delivered is not the principal purpose of the
contract, there is no deposit but some other
contract. (Art.1962)
 Kinds of Deposit

Judicial – takes place when an attachment or seizure of property in

litigation is ordered (Arts.2005-2008)

Extrajudicial (Art. 1967)

1. Voluntary- delivery is made by the will of the depositor or by two or
more persons each of whom believes himself entitled to the thing
deposited;
2. Necessary- made in compliance with a legal obligation, or on the
occasion of any calamity, or by travelers in hotels and inns (Arts.1996-
2004) or by travelers with common carriers (Arts.1734-1735)
• Characteristics—
1. Real Contract because it is perfected by the
delivery of the subject matter.
2. Principal purpose of the contract of deposit is the
safekeeping of the thing delivered.
3. If gratuitous, it is unilateral because only the
depository has an obligation. If onerous, it is
bilateral.
• Guaranty- is a contract whereby a guarantor binds
himself to the creditor to fulfill the obligation of
the principal debtor in case the latter should fail
to do so. (Art.2047 par 1)

• Suretyship- is a contract whereby a person binds

himself solidarily with the principal debtor
(Art.2047 par2)
 Characteristics

1. Accessory – dependent for its existence upon the principal obligation

guaranteed byit;
2. Subsidiary and conditional – takes effect only when the principal
debtor fails in his obligation
3. Unilateral –
a. It gives rise only to a duty on the part of the guarantor in relation to
the creditor and not vice versa
b. It may be entered into even without the intervention of the principal
debtor.
4. Guarantor must be a person distinct from the debtor – a person cannot
be the personal guarantor of himself
• CLASSIFICATION OF GUARANTY
1. Guaranty in the broad sense:
a. Personal – guaranty is the credit given by the person who
guarantees the fulfillment of the principal obligation; or
b. Real – guaranty is property, movable, or immovable
Real mortgage (2124) or antichresis (2132) – guaranty is
immovable
Chattel mortgage (2140) or pledge (2093) – guaranty is
movable
• 2. As to its origin:
a. Conventional – constituted by agreement of
the parties
b. Legal – imposed by virtue of a provision of law
c. Judicial – required by a court to guarantee the
eventual right of one of the parties in a case.
• 3. As to consideration:
a. Gratuitous – guarantor does not receive any
price or remuneration for acting as such (2048)

b. Onerous – one where the guarantor receives

valuable consideration for his guaranty
• 4. As to person guaranteed:
a. Single – constituted solely to guarantee or
secure performance by the debtor of the
principal obligation;
b. Double or sub-guaranty – constituted to secure
the fulfillment by the guarantor of a prior
guaranty
• 5. As to its scope and extent:
a. Definite – where the guaranty is limited to the
principal obligation only, or to a specific portion
thereof;
b. Indefinite or simple – where the guaranty
included all the accessory obligations of the
principal, e.g. costs, including judicial costs
Pledge

Is a contract wherein the debtor delivers to the

creditor or to a third person a movable or
document evidencing incorporeal rights for the
purpose of securing the fulfillment of a principal
obligation with the understanding that when the
obligation is fulfilled, the thing delivered shall be
returned with all its fruits and succession.
• Kinds
1. Conventional or Voluntary-Created by
contract

2. Legal- created by operation of law

• CHARACTERISTICS
1. Real – Perfected by delivery.
2. Accessory – Has no independent existence of its
own.
3. Unilateral – Creates obligation solely on the part
of the creditor to return the thing subject upon the
fulfillment of the principal obligation.
4. Subsidiary – Obligation incurred does not arise
until the fulfillment of the principal obligation.
• CAUSE OR CONSIDERATION
1. Principal obligation – In so far as the pledgor
is concerned.
2. Compensation stipulated for the pledge or
mere liberality of the pledgor – If pledgor is
not the debtor.
• Concept of Pactum Commissorium – is a
stipulation whereby the thing pledged or
mortgaged shall automatically become
the property of the creditor in the event
of non-payment of the debt within the
fixed term.
MORTGAGE

• is a contract whereby the debtor secures to the

creditor the fulfillment of a principal
obligation, immediately making immovable
property or real rights over immovable property
answerable to the principal obligation in case it
is not complied with at the time stipulated.
• Future property cannot be object of mortgage;
however, a stipulation subjecting to the mortgage
improvements which the mortgagor may
subsequently acquire, install or use in connection
with real property already mortgaged belonging
to the mortgagor is valid.
• Characteristics
1. Real
2. Accessory-it has no independent existence of its own and needs the
existence of the principal obligation
3. Subsidiary- the obligation incurred does not arise until the
fulfillment of the principal obligation which is secured
4. Unilateral- it creates only an obligation on the part of the creditor
who must free the property from the encumbrance once the obligation
is fulfilled
• Kinds
• 1. Voluntary- one which is agreed by between the parties
• 2. Legal- one required by law to be executed in favor of
certain persons
• 3. Equitable - one which although it lacks the proper
formalities or other requisites of a mortgage required by
law, nevertheless reveals the intention of the parties to
burden real property as a security for a debt
• FORECLOSURE OF MORTGAGE
It is the remedy available to the mortgagee by
which he subjects the mortgaged property to the
satisfaction of the obligation secured by the
mortgage.
•Kinds of Foreclosure
•1. Judicial
•2. Extra Judicial
• REDEMPTION
1. It is a transaction by which the mortgagor
reacquires the property which may have passed
under the mortgage or divests the property of
the lien which the mortgage may have created
Kinds

• a. Equity of redemption: in judicial foreclosure of real

estate mortgage under the ROC, it is the right of the
mortgagor to redeem the mortgaged property by paying
the secured debt within the 90 days period from entry of
judgment or after the foreclosure sale, but before the
sale of the mortgaged property or confirmation of sale

formal offer to redeem preserves the right of redemption,

e.g., by filing an action to enforce the right to redeem
• Right of redemption: in extrajudicial foreclosure of real estate
mortgage, it is the right of the mortgagor to redeem the
property within a certain period after it was sold for the
satisfaction of the debt.
For natural persons – one year from the registration of the TCT
For juridical persons – three months from the foreclosure
Formal offer to redeem must be with tender of redemption price
to preserve right of redemption
•
NOTE: There is no right of redemption in pledge and chattel
mortgage.
Antichresis

• is a contract whereby the creditor acquires

the right to receive the fruits of an immovable
of the debtor, with the obligation to apply
them to the payment of the interest, if owing,
and thereafter to the principal of his
credit(Art. 2132)
• Characteristics
• 1. Accessory contract- it secures the
performance of a principal obligation
• 2. Formal contract- it must be in a specified
form to be valid
Chattel Mortgage

• is a contract by virtue of which personal

property is recorded in the Chattel Mortgage
Register as a security for the performance of
an obligation(Art. 2140)
• 1. Accessory
• 2. Formal Contract-registration
• 3. Unilateral- only on the part of the
creditor
Succession

• is a mode of acquisition by virtue of which

the property, rights and obligation 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. (Art. 774)
• The rights to succession are transmitted
from the moment of the death of the
decedent.
Kinds of Succession (Art. 778, CC)
Testamentary (Art. 779, CC) - results from the designation of an heir made in a will
Legal or intestate (Art. 960, CC) – takes place by operation of law in the absence of a valid
will
If a person dies without a will or with a void will or one which has subsequently lost
its validity;
The suspensive condition attached to the institution of heir does not happen or is not
fulfilled or the heir dies before the testator or repudiates the inheritance, there being no
substitution and no right of accretion takes place
When the heir instituted in incapable of
succeeding, except in cases provided in
this Code.
Heir dies before the testator

Testator repudiates the inheritance

Mixed (Art. 780, CC) - effected partly by will
and partly by operation of law
• Heirs
Those who are called to the whole or to an aliquot portion of the inheritance either by
will or by operation of law
Compulsory Heirs – those who succeed by force of law to some portion of the
inheritance, in an amount predetermined by law known as the legitime, of which they
cannot be deprived by the testator, except by a valid disinheritance. They succeed
regardless of a will.
Voluntary or Testamentary Heirs – those who are instituted by the testator in his
will, to succeed to the portion of the inheritance of which the testator can freely
dispose. They succeed by reason of a will.
Legal or Intestate Heirs – those who succeed to the estate of the decedent who
dies without a valid will, or to the portion of such estate not disposed of by will. They
succeed in the absence of a valid will, although this is not the only ground for
intestacy, as can be seen in Chapter III.
• 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.
(Art. 783)
• Definition of will:
1. "Person."-- refers only to natural persons.
2. "Permitted to control to a certain degree."-- why certain
degree? Bec. Compulsory heirs cannot be deprived of their
legitimes. If there are no compulsory heirs, the power of
the decedent to dispose of his estate is absolute. If there
are compulsory heirs, he only has a limited degree to
dispose. That is why the will can only cover the disposable
portion of the estate (free portion.)
 Characteristics of Wills
• 1. Purely personal act. (Arts. 784-787.)-- non-delegable; personal
participation of the testator is required.
2. Free act.-- it means w/o fraud, violence, deceit, duress, or intimidation.
It is voluntary. No vitiated consent.
3. Dispositive of property.-- If it does not, it will be useless. But as far as the
law is concerned, it can be probated but a useless expense. It is only valid as
to form and nothing else.
•
Exceptions:
a. when a will recognizes an illegitimate child
b. when a will disinherits a compulsory heir
c. when it appoints an executor
• 4. Essentially revocable.-- ambulatory, it is not fixed, can be
taken back (while the testator is alive.) There is no such
thing as an irrevocable will. It only becomes irrevocable upon
death of the testator.
5. Formally executed.-- If the form is defective, it is void. It
can not be cured.
6. Testamentary capacity of the testator.
7. Unilateral act.-- does not involve an exchange of values or
depend on simultaneous offer and acceptance.
• 8. Mortis causa.-- takes effect upon the person's death (Art. 777.)
9. Statutory grant.-- granted only by civil law. The law can also take
it away. It is not a constitutional right but merely statutory. In
Russia, there are no wills, all intestacy
10. Animus Testandi.-- There must be an intent to dispose mortis
causa the property of the testator. There must be a real intent to
make a will or a disposition to take effect upon death.
Said intent must appear from the words of the will.
11. Individual.-- One person alone. Joint wills are prohibited under
Art. 818.
12. Ambulatory
• The making of a will is a purely personal act.
It is an exercise of the disposing power
w/c can not be delegated. But the physical
act of making a notarial will can be
delegated to the
secretary but not the execution or making of
holographic wills.
 All persons who are not expressly
prohibited by law may make a will.
(Art. 796)
• Requisites
• 1. the testator must be at least 18 years of age
• 2. He must be of sound mind
• 3. He must not be expressly prohibited by law to
make a will
• Kinds of Wills allowed under the NCC.-- (1)
ordinary or notarial will w/c requires an
attestation clause, an acknowledgement before a
notary public; (2) holographic will w/c must be
entirely written, dated and signed in the
handwriting of the testator.
 Requisites of Notarial Will

1. Written Will
2. Executed in a language or dialect known to the testator
3. Subscribed at the end thereof by the testator himself or by testator’s name written by
some other person in his presence and by his express direction
4. Attested and subscribed by 3 or more credible witnesses in the presence of the testator
and of one another
5. All of the pages which are signed, except the last, on the left margin by the testator or
the person requested by him to write his name and by the instrumentalities
6. Numbered correlatively in letters placed on the upper part of each page
7. Containing an attestation clause executed by the witnesses
8. Properly acknowledged before a notary public by the testator and the said witnesses
• Instrumental Witness
• 1. A person of Sound mind
• 2. 18 years of age
• 3. Not blind, deaf, or dumb
• 4. Able to read and write
• 5. Domiciled in the Philippines
• 6. Not been convicted of falsification of document, perjury, or
false testimony
Requisites for Holographic Wills

1. the will must be entirely written by the hand of the

testator himself
2. the will must be dated by the hand of the testator
3. the will must be signed by the hand of the testator
himself
4. The will must be executed in a language or dialect
known to the testator
 • Note: a holographic will is subject to no
other form, and may be made in or out of
the Philippines, and need not be witnessed.
(Art. 810)
• Articles 807 and 808 are special additional
requirements which are mandatory.
• Codicil- is a supplement or addition to a
will, made after the execution of a will
and annexed to be taken as a part
thereof, by which any disposition made
in the original will is explained, added
to, or altered.(Art. 825)
• Revocation- is an act of the mind,
terminating the potential capacity of
the will to operate at the death of the
testator, manifested by some outward
or visible act or sign, symbolic thereof.
• Question: May a will be revoked by the
testator? (Art. 828)
• Kinds of Revocation
• 1. By implication of law
• 2. By some will, codicil, or other writing executed as
provided in case of wills
• 3. By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction.
 • Question: Mr. Reyes executed a will which is
completely valid as to form. A week later,
however, he executed another will which
expressly revoked his first will, and subsequently
tore his first will. Upon the death of Mr. Reyes,
his second will was presented for probate by his
heirs, but it was denied due to formal defects.
Assuming that a copy of the first will is available;
may it now be admitted to probate and given
effect? Why?
• Probate of wills-is a special proceedings to establish the
validity of the will. The purpose is to prove before some
competent court or tribunal vested with authority for
that purpose that the instrument which is offered for
probate is the last will and testament of the testator,
that it has been executed in accordance with the
formalities prescribed by law; and that the testator had
the necessary testamentary capacity at the time of the
execution of the will.
• Dependent Relative Revocation- where the act of
destruction is concerned with the making of another will,
so as to fairly raise the interference that the testator
meant the revocation of the old to depend upon the
efficacy of the new disposition intended to be substituted,
the revocation will be conditional and dependent upon the
efficacy of the new disposition, and if for any reason, the
will intended to be made as a substitute is inoperative, the
revocation fails and the original will remain in full force.
• Institution of Heirs- is an act by virtue
of which the testator designates in his
will the person or persons who are to
succeed him in his property and
transmissible rights and obligations.
• General rule: An heir must be designated by name and surname. This also applies
to devisees and legatees. If there are 2 or more people having the same name and
surname, the testator must indicate some identifying mark or circumstance to
which he may be known, otherwise there may be a latent ambiguity.

• E.g., I institute my cousin A. But I have 3 cousins by the name of A. Unless I give an
identifying mark or circumstance as to w/c cousin A I refer to, there will be a
latent ambiguity.
Exception: Even w/o giving the name, the identity of the heir can be ascertained
w/ sufficient certainty or clarity, e.g. the present Dean of the UP College of Law,
my oldest brother. What is important is that the identity of the heir be known and
not necessarily his name.
LEGITIME

• Is that part of the testator’s property

which he cannot dispose of because the
has reserved it for certain heirs who
are, therefore called compulsary heirs.
DETERMINATION OF LEGITIME
• Reserva Troncal-is the reservation by virtue of which
an ascendant who inherits from the descendant any
property which the latter may have acquired by
gratuitous title from another ascendant or a brother
or sister, is obliged to reserve such property as he
may have acquired by operation of law for the
benefit of relatives who are within the 3rd degree
and who belong to the line from such property
came. (Art. 891)
TORTS AND DAMAGES