succession midterms reviewer (new)

WILLS AND SUCCESSION REVIEWERATTY. SEBASTIAN

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I. GENERAL PRINCIPLESSUCCESSION – a mode of acquisition by virtue of which thetransmissible property, rights and obligations of a person pass, uponhis death, to his heirs and other successors mortis causa

OTHER MODES OF OWNERSHIP (OLD TIPS) – Art 712 NCC1. OCCUPATION2. LAW3. DONATION4. TRADITIO (DELIVERY)5. INTELLECTUAL CREATION6. PRESCRIPTION7. SUCCESSION

BASIS OF SUCCESSION:1. Succession based on family relations – By

virtue of strong family ties, persons are presumed to ownproperty not only for themselves but also for their loved ones,children, spouse, parents and other relatives. Property ownedby one is owned by all: family co-ownership. Thus, intestatesuccession finds support in this basis considering the rules ofproximity and equal division and the other of intestatesuccession contemplate the relationship of heirs to thedecedent in determining the priority of heirs and the amount oftheir respective shares

2. Succession as an attribute of ownership ofproperty – Even at death a person has the power to controlthe disposition of his property inasmuch as the power todispose is an inherent attribute of ownership. Bothtestamentary and intestate succession find support in thistheory since a testament is an instrument controlling thedisposition of the estate while in the absence of a testament,the law on intestate succession takes it place by calling on theheirs who would have received the estate had the decedentwritten a will

o Without succession, the right of ownership is imperfectbecause the purpose of wealth is based on thefollowing characteristics:a. Individuality – prevents stagnation of wealthb. Inequality – product of independence and freedom

of human activities, through the labor and peculiarqualities of each one

c. Transmissibility – salient feature of the right ofproperty to transmit the same

3. Eclectic theory – The bases for succession is acombination of both the right of the family and the right onprivate ownership. There is a presence of both individual andsocial necessity to perpetuate man’s patrimony beyond hishuman existence. It is an individual necessity to preserve theproperty generally within the family based on man’s affection forhis blood relatives. It is also a social necessity to ensure thecontinuity of ownership because in the absence of any system ofsuccession, upon a person’s death, property is left without aqualified owner and is considered res nullius. As such, chaoswould ensue as people would kill each other to get said property

Art774. Succession is a mode of acquisition by virtue of whichthe property, rights and obligations to the extent of the value ofthe inheritance, of a person are transmitted through his death toanother or others either by his will or by operation of law

Art775. In this Title, "decedent" is the general term applied tothe person whose property is transmitted through succession,whether or not he left a will. If he left a will, he is also called thetestator.

CONCEPTSuccession is defined as the mode of acquiring ownership, by virtue ofwhich the inheritance of a person is transmitted to others, eitheraccording to his express will and words, or, if by some natural or

BY: C. Mejia and M. MejiaDIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc

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accidental circumstances he has made no will, according to hispresumed will provided for by law as analogous to what he would havehad he executed one. It is a mode of acquisition, by virtue of whichone succeeds to the universality of the transmissible rights, active andpassive, of a person who has died (Tolentino, 1992 ed., p. 9)

ELEMENTS1. A mode of acquiring ownership, as enumerated in

Art 712 NCC – It is a derivative mode of acquisition becauseupon a person’s death, his heir becomes the owner of propertyleft behind resulting from the transmission of property, rightsand obligations

2. It is a gratuitous transmission – The transmission isessentially gratuitous in nature. The transfer is solelydependent on the liberality of the decedent—clear andexpressly by will in testamentary succession, and assumed andimplied by law in intestate succession When an heir succeeds,the obligations he inherits may not be more than the value ofproperty and rights received by him.

3. A transmission of property, rights andobligations to another to the extent of thevalue of the inheritance – By definition, the heirs donot only acquire the properties and rights of the deceased, butalso the liabilities of the estate, but subject to the followinglimitations:a. Aggregate limitation – If there is only one heir,

he will only be liable to pay the debts up to the value ofthe properties and rights he will receive

b. Per person limitation – If one heir gets 2/3 ofthe estate and another gets 1/3, then their respectiveliabilities of the debt is prorated. Their liabilities cannotexceed what they receive

To the extent of the value of theinheritance – The heirs cannot be made to pay for thedebts that are in excess of what they will receive

NOTE: Heirs are no longer personally liable for the debts of thedeceased; such debts must be collected only from the property left uponhis death, and if this should not be sufficient to cover all of them, theheirs cannot be made to pay the uncollectible balance. (Tolentino, p. 13)

4. Transmission of property, rights and obligations is byvirtue of death – Death extinguishes the civilpersonality of a natural person depriving him of his fitness tobe a subject of legal relations. Death is the operative act whichopens succession hence, transmission as a consequence ofsuccession may take place only by virtue of death

Presumptive death – Death in the legal sense may beactual or presumed death.

5. The transmission occurs either by will oroperation of law –Succession operates to transfer titleor ownership of properties, rights and obligations to anotherperson, either by will (testate) or by law (intestate)

REQUISITES FOR TRANSMISSION OF SUCCESISONALRIGHTS

1. The express will of the testator, within the limits prescribed bylaw, calling certain persons to succeed him, or in the absenceof a will, the provision of the law prescribing the presumed willof the decedent

2. The death of the person whose succession is in question; and3. The acceptance of the inheritance by the person called to the

succession

CASES:ESTATE OF HEMADY V. LUZON SURETY, 100 PHIL 388(1956)FACTS: Luzon Surety filed a claim against the estate of the KH Hemadybased on indemnity agreements (counterbonds) subscribed by distinctprincipals and by the deceased as surety (solidary guarantor). As acontingent claim, Luzon Surety prayed for the allowance of the value ofindemnity agreements it executed. The lower court dismissedrespondent’s claim on the basis that “whatever losses may occur after


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Hemady’s death, are not chargeable to his estate, because upon hisdeath he ceased to be a guarantor.”

ISSUE: What obligations are transmissible upon the death of thedecedent? Are contingent claims chargeable against the estate?

HELD: Under Art 1311, “Contracts take effect only as between theparties, their assigns and heirs, except in the case where the rights andobligations arising from the contract are not transmissible by their nature,or stipulation or by provision of law.” While in our successional systemthe responsibility of the heirs for the debts of the decedent cannotexceed the value of the inheritance they receive from him, the prin-ciple remains intact that these heirs succeed not only to the rights ofthe deceased but also to his obligations. Articles 774 and 776 of thenew Civil Code expressly so provide, thereby confirming Art 1311.

In Mojica v. Hernandez, the SC ruled: "Under the Civil Code the heirs, byvirtue of the rights of succession are subrogated to all the rights andobligations of the deceased (Article 661) and cannot be regarded as thirdparties with respect to a contract to which the deceased was a party,touching the estate of the deceased x x x which comes into their hands byright of inheritance; they take such property subject to all the obligationsresting thereon in the hands of him from whom they derive their rights."

Hemady holds that the contingent liabilities of the decedent are part of theobligations transmitted by his death to his heirs. Accordingly, contingentclaims against the estate of a deceased person arising from the decedent'scontractual undertakings under various indemnity agreements executed infavor of various persons and entities are money claims which may beproved against his estate and/or heirs. These contingent claims may beproved during settlement proceedings by an indemnified surety even if inthe meantime, no actual liability on the part of an indemnified surety hasarisen by reason of actual payment made under the suretyship agreement

NATIONAL HOUSING AUTHORITY V. ALMEIDA, 525 SCRA383 (2007)FACTS:In 1959, LTA (now NHA) awarded several portions of land inLaguna to Margarita Herrera. Margarita had 2 children: Beatriz Mercado

(mother of private respondent) and Francisca Herrera. Beatrizpredeceased her mother and left heirs. Margarita died in 1971.

Francisca, the surviving child of the decedent, executed a deed of Self-Adjudication claiming that she is the only remaining relative and that sheis the exclusive legal heir of the decedent. The self-adjudication wasbased on a sworn statement executed by the decedent bequeathing thesubject property to Francisca. The said document was signed on bothpages.

The surviving heirs of Beatriz filed a case for annulment of the Deed ofSelf-Adjudication. The trial court held in favor of the heirs of Beatriz anddeclared the deed void. Pending the litigation, Francisca filed anapplication with NHA to purchase the same lots, which was protested byAmeida (heir of Beatriz). NHA granted the application.

Subsequently, Francisca died. Her heirs executed an extrajudicialsettlement of her estate which they submitted to NHA. Said transfer ofrights was approved by NHA, who then executed several deeds of salein favor of the heirs of Francisca.

Almeida sought the cancellation of the titles issued in favor the heirs ofFrancisca. She invoked er 40-year occupation of the disputed propertiesand re-raised the fact that Francisca’s deed of self-adjudication had beendeclared void by the trial court.

ISSUE: WON Margarita’s right (contract to sell) is part of the estate

HELD:Yes. Margarita Herrera had an interest in the property and thatinterest should go to her estate upon her demise so as to be able toproperly distribute them later to her heirs – in accordance with a will or byoperation of law.

The death of Margarita Herrera does not extinguish her interest over theproperty. Margarita Herrera had an existing Contract to Sell with the NHAas the seller. Upon Margarita Herrera’s demise, this Contract to Sell wasneither nullified nor revoked. This Contract to Sell was an obligation on bothparties – Margarita Herrera and NHA. Obligations are transmissible.


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Margarita Herrera’s obligation to pay became transmissible at the time ofher death either by will or by operation of law.

NHA cannot make another contract to sell to other parties of a propertyalready initially paid for by the decedent. Such would be an act contrary tothe law on succession and the law on sales and obligations. When theoriginal buyer died, the NHA should have considered the estate of thedecedent as the next “person” likely to stand in to fulfill the obligation to paythe rest of the purchase price.

On the issue of the validity of the sworn statement as a will, The issue isfor the probate court to determine, We affirm the Court of Appeals and theRegional Trial Court which noted that it has an element of testamentarydisposition where (1) it devolved and transferred property; (2) the effect ofwhich shall transpire upon the death of the instrument maker.

An affidavit made a certain disposition of property which is to take effectupon the death of the affiant. This case holds that such an affidavit is in thenature of a will and that therefore, the transmission of the property and/orrights pertaining thereto is not in the nature of an assignment. The mode ofacquisition is succession.

However, Chief Justice Puno also insisted that whatever property, rightsand obligations which a deceased person may leave behind, the sameshould go to his or her estate for eventual distribution to the heirs, eitherby will or by intestacy. This statement is prone to misinterpretationbecause in Article 777, the rights to succession are transmitted to theheirs from the moment of the death of the decedent. Therefore,ownership of the inheritance is automatically and immediatelytransferred to the heirs. Any proceeding to settle the estate is in thenature of an administrative formality in order to ensure the payment ofliabilities, the proper identification of the heirs, and the correct allocationof hereditary shares. Note that in Speed Distributing Corporation v Courtof Appeals [G.R. No. 149351, 17 March 2004 (425 SCRA691)], JusticeCalleja, speaking for the Court, ruled that “The general rule under thelaw on succession is that successional rights are transmitted from themoment of death of the decedent and compulsory heirs are call upon tosucceed by operation of law to the inheritance without the need of furtherproceedings.”

Compare with Reyes v. RTC Makati: This interest (referring to the co-ownership of the heirs over the undivided corporate shares), at this point, isstill inchoate and subject to the outcome of a settlement proceedings; theright of the heirs to specific, distributive shares of inheritance will not bedetermined until all the debts of the estate of the decedent are paid. Inshort, the heirs are only entitled to what remains after payment of thedecedent’s debts; whether there will be residue remains to be seen.”

Art776. The inheritance includes all the property, rights andobligations of a person which are not extinguished by his death.

INHERITANCE – It refers to the mass of property, rights andobligations left behind by the decedent

Inheritance refers to the universality or entirety of properties,rights and obligations of a decedent (objective element ofsuccession)

Succession refers to the legal mode or manner by which thisinheritance is transmitted to persons entitled to it

TRANSMISSIBLE PROPERTIES – Regardless of the type andclassification, all properties are transmissible by virtue of their inherentcharacter and as an attribute of ownership. The law on successiondoes not govern property of public dominion since the legal personalityof its owner, being the State, is not capable of death as understood incivil law

TRANSMISSIBLE RIGHTS – As a general rule, rights which arepatrimonial or related to property are not extinguished by death andthe same constitute part of the inheritance except where, it isotherwise provided by law or by the law of the testator as in the casesof usufruct or personal servitude

TRANSMISSIBLE OBLIGATIONS – Obligations are by naturetransmissible and may constitute part of the inheritance both withrespect to the rights of the creditor and likewise the obligation fo thedebtor, EXCEPT:


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1. Obligations of the debtor which are PERSONAL because theyrequire personal qualifications and circumstances of the debtorare extinguished by death

2. Obligations which are made non-transmissible by the WILL ofthe testator or by EXPRESS AGREEMENT of the parties;

3. Obligations which are made non-transmissible by EXPRESSPROVISION OF LAW

CASE: NATIVIDAD NAZARENO V. CA AND ESTATE OFMAXIMO NAZARENO, 343 SCRA 637 (2000)FACTS: Maximino Nazareno Sr. and Aurea Poblete were husband andwife. Aurea died in 1970 while Maximino Sr. died in December 1980.They had five children: Natividad, Romeo, Jose, Pacifico and MaximinoJr. After the death of Maximino Jr., Romeo filed an intestate case in CFICavite and was subsequently appointed as administrator of his father’sestate

During the course of the proceedings, he discovered that his parents hadexecuted several deeds of sale conveying the a number of realproperties in favor of his sister, Natividad. When Romeo discovered thesubsequent sale to Maximino Jr., he locked the latter out of the house.As such, Maximino Jr. brought an action for recovery of possessionagainst Romeo. The trial court ruled in favor of Maximino Jr. Romeo, onbehalf of the estate of Maximino Jr., filed an action for annulment of saleagainst Natividad and Maximino Jr. on the ground that the sale toNatividad in 1970 and the subsequent sale to Maximino were both voidfor being without any consideration

ISSUE: WON the estate of Maximino Sr. may filed an action to recoverthe subject properties sold to Maximino Jr.

HELD:Yes. To be sure, that case was for recovery of possession basedon ownership of Lot 3-B. The parties in that case were Maximino, Jr., asplaintiff, and the spouses Romeo and Eliza, as defendants. On the otherhand, the parties in the present case for annulment of sale are the estateof Maximino, Sr., as plaintiff, and Natividad and Maximino, Jr., asdefendants. Romeo and Eliza were named third-party defendants after athird-party complaint was filed by Natividad and Maximino, Jr. As already

stated, however, this third-party complaint concerned Lot 3, and not Lot3-B.

The estate of a deceased person is a juridical entity that has apersonality of its own. Though Romeo represented at one time the estateof Maximino, Sr., the latter has a separate and distinct personality fromthe former. Hence, the judgment regarding the ownership of Maximino,Jr. over Lot 3-B binds Romeo and Eliza only, and not the estate ofMaximino, Sr., which also has a right to recover properties which werewrongfully disposed.

The estate of a deceased person is a juridical entity that has a personality ofits own. It therefore has a right to recover property belonging to it that wereimproperly disposed.

ATTY SEBASTIAN: Juridical persons according to Art 44: state,partnership and corporation. Estate is not a juridical person. An estate is ataxable entity

Art777. The rights to the succession are transmitted from themoment of the death of the decedent.

Transmission of successional rights – Once deathsupervenes, the will of the testator becomes immutable, the law as tothe succession can no longer be changed, disinheritance cannot beeffected, and the rights to the succession acquire a character ofmarked permanence

Estate taxes—The right of the State to collect the inheritance taxaccrues at the moment of death

TWO KINDS OF DEATH1. ACTUAL DEATH – Proof of death is provided by a death

certificate2. PRESUMED DEATH – may either be ordinary or extraordinary


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IMPORTANCE TO DETERMINE PRECISE MOMENT OFDEATH

1. Upon the moment of death, the properties left by the decedentmust be transferred to another, otherwise it reverts into resnullius

2. Since t he right to succession takes place at the moment ofdeath, rights and obligations arising therefrom must retroactto the precise moment of death

RULES IN PRESUMPTIVE DEATHa. Ordinary (Art 390 NCC)

GENERAL RULE: Absence of 7 YEARS + unknown whetherthe absentee still lives = presumed dead for all purposesEXCEPT: For the purpose of opening his succession, in whichcase the absentee is presumed dead after 10 YEARS. Ifdisappeared after the age of 75 years, 5 YEARS will besufficient

b. Extraordinary (Art 391 NCC) – The following arepresumed dead for ALL purposes, including the division ofestate among heirs: (VA-A-D)

(1) A person on board a VESSEL during a sea voyage, oran AEROPLANE which is missing, who has not beenheard of for 4 YEARS since the loss of the vessel orplane

(2) A person in the ARMED FORCES who has taken partin war, and has been missing for 4 YEARS; or

(3) A person who has been in DANGER of death underother circumstances and existence has not beenknown for 4 YEARS

CASES:PACIO V. BILLON, 1 SCRA 284 (1961)FACTS: In 1901, Flaviano Pacio married Severa Jucutan. Hereindefendants were their children. Severa died in 1930 and thereafter Flavianomarried plaintiff Toribia Fontanilla who bore him the other 4 plaintiffs.

Respondents filed an unlawful detainer against plaintiffs concerning 2parcels of land. The litigants later agreed to a partition of the 1st parcel. Asto the 2nd parcel, the same was awarded to respondents on the ground thatit had been donated propter nuptias to Severa in 1901 by Flaviano, who

was then the owner. Toribia contends that the donation is void because itwas not made in a public instrument.

ISSUE: WON the donation was valid

HELD: No. Art. 633 of the Spanish Civil Code states that "In order thata donation of real property be valid it must be made by public instrumentin which the property donated must be specifically described and theamount of the encumbrances to be assumed by the donee expressed.” Adonation of real property written on a private instrument is not valid evenbetween the parties.

It must be noted that when the gift was made, the applicable law was theSpanish Civil Code which provides that even between the parties, thedonation must be made in a public instrument.

It follows that then Flaviano continued to be the owner of the land as thedonation had no effect and there was no prescription. Upon his death,the land became the joint property of his children by the 1st and 2nd

marriage, subject to the rights of his surviving spouse, Toribia.

Properties not validly conveyed by a person during his lifetime will formpart of his estate upon his demise. Pacio holds that a parcel of land whichwas not validly donated (propter nuptias) by the husband to the wife didnot leave his patrimony, and therefore formed part of his inheritance uponhis demise.

USON V. DEL ROSARIO, 92 PHIL 530 (1953)FACTS: Plaintiff Maria Uson, who was the legal wife of the decedentFaustino Nebrada, filed an action for recovery of ownership of possessionof 5 parcels of land against defendants, who are the common-law wife andillegitimate children of Faustino. Del Rosario averred that plaintiff Usona ndthe decedent executed a public document whereby they agreed to separateas husband and wife, and in consideration of said separation, Uson wasgiven a parcel of land by way of alimony and in return, she renounced herright to inherit any property that may be left by Faustino upon his death.

ISSUE:WON Uson’s renunciation of her right to inherit property left by herdeceased husband is effective


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HELD: No. In a number of cases the SC held that the property belongs tothe heirs at the moment of the death of the ancestor as completely as if theancestor had executed and delivered to them a deed for the same beforehis death. From that moment, therefore, the rights of inheritance of Usonover the lands in question became vested.

The claim of the defendants that Uson had relinquished her right over thelands in question because she expressly renounced to inherit any futureproperty that her husband may acquire and leave upon his death in thedeed of separation they had entered into on February 21, 1931, cannot beentertained for the simple reason that future inheritance cannot be thesubject of a contract nor can it be renounced. Moreover, said assignment, ifany, partakes of the nature of a donation of real property, inasmuch as itinvolves no material consideration, and in order that it may be valid, it shallbe made in a public document and must be accepted either in the samedocument or in a separate one. Hence, the alleged assignment or donationis of no effect.

Uson holds that the inheritance pertains to the heirs from the moment of thedeath of the ancestor as completely as if the ancestor had executed anddelivered to the heirs a deed for the same before his death. Thistransmission takes place by operation of law.

BONILLA V. BARCENA, 71 SCRA 491 (1976)FACTS: Fortunata Barcena, mother of minors Rosalio and SalvacionBonilla and wife of Ponciano Bonilla, filed an action to quiet title over someparcels of land. Fortunata died pending litigation. As such, the defendantsfiled a motion to dismiss on the ground that Fortunata was dead andtherefore has no legal capacity to sue. When the motion was heard, theplaintiff’s counsel asked for the substitution by her minor child and husband,but the court dismissed the case on the ground that a dead person cannotbe a real party in interest and has no legal personality to sue.

ISSUE: WON the deceased Fortunata can be substituted by her heirs inthe instant case

HELD: Yes. While it is true that a dead person cannot sue in court, yet hecan be substituted by his heirs in pursuing this case up to its completion.

The records of this case show that the death of Fortunata Barcena tookplace on July 9, 1975 while the complaint was filed on March 31, 1975. Thismeans that when the complaint was filed on March 31, 1975, FortunataBarcena was still alive, and therefore, the Court had acquired jurisdictionover her person. If thereafter she died, the Rules of Court prescribe theprocedure whereby a party who died during the pendency of theproceeding can be substituted.

Under Section 16, Rule 3 ROC, "whenever a party to a pending case diesx x x it shall be the duty of his attorney to inform the court promptly ofsuch death x x x and to give the name and residence of his executor,administrator, guardian or other legal representatives." This duty wascomplied with by the counsel for the deceased plaintiff.

Art 777 NCC provides "that the rights to the succession are transmittedfrom the moment of the death of the decedent." From the moment of thedeath of the decedent, the heirs become the absolute owners of hisproperty, subject to the rights and obligations of the decedent, and theycannot be deprived of their rights thereto except by the methods providedfor by law. The moment of death is the determining factor when the heirsacquire a definite right to the inheritance whether such right be pure orcontingent. The right of the heirs to the property of the deceased vests inthem even before judicial declaration of their being heirs in the testate orintestate proceedings.

In the instant case, the respondent Court did not have to bother orderingthe opposing party to procure the appointment of a legal representative ofthe deceased because her counsel has not only asked that the minorchildren be substituted for her, but also suggested that their uncle beappointed as guardian ad litem for them because their father is busy inManila earning a living for the family. But the respondent Court refused therequest for substitution on the ground that the children were still minors andcannot sue in court. This is another grave error because the respondentCourt ought to have known that under the same Sec 17, Rule 3 ROC, thecourt is directed to appoint a guardian ad litem for the minor heirs.

A prior judicial declaration of heirship is not necessary to perfect thetransmission. Bonilla holds that claims to or rights over property whichwere initiated by the decedent during his lifetime by appropriate court


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proceedings are not extinguished by his death. These claims or rights overproperty are transmitted to his heirs upon his death.

BUTTE V. MANUEL UY & SONS INC, 4 SCRA 526 (1962)FACTS: During his lifetime, Jose Ramirez co-owned a property inManila, with 5 other persons. In his last will and testament, Josebequeathed his estate, which included his 1/6 undivided portion in thesaid property, to his children and grandchildren, and 1/3 of the freeportion to petitioner Angela Butte. Eight years after the death of JoseRamirez and while the intestate proceedings were still pending, one ofthe co-owners sold her share to respondent Manuel Uy & Sons forP500,000. After being informed of the said sale, Butte offered to redeemthe 1/6 share sold to respondent. Having been refused, Butte filed anaction for legal redemption. The trial court dismissed plaintiff’s complainton the grounds that she had no right to redeem the property and that, ifever she had any, she exercised the same beyond the statutory periodfor legal redemptions provided by the Civil Code

ISSUE: WON plaintiff, having been bequeathed 1/3 of the free portionof the estate of Jose Ramirez, cane exercise the right of legalredemption over the 1/6 share sold by one of the co-owners

HELD: Yes. As testamentary heir of the estate of J.V. Ramirez, sheand her co-heirs acquired an interest in the undivided one-sixth (1/6)share owned by her predecessor (causante) in the Santa Cruz property,from the moment of the death of the aforesaid co-owner, J.V. Ramirez.By law, the rights to the succession of a deceased persons aretransmitted to his heirs from the moment of his death, and the right ofsuccession includes all property rights and obligations that survive thedecedent.

As a consequence of this fundamental rule of succession, the heirs ofJose V. Ramirez acquired his undivided share in the Sta. Cruz propertyfrom the moment of his death, and from that instant, they became co-owners in the aforesaid property, together with the original surviving co-owners of their decedent (causante). A co-owner of an undivided shareis necessarily a co-owner of the whole. Wherefore, any one of theRamirez heirs, as such co-owner, became entitled to exercise the right oflegal redemption (retracto de comuneros) as soon as another co-ownerhad sold her undivided share to a stranger.

The presence of the judicial administrator is of no moment since therights of the administrator of possession and administration of the realand personal estate of possession and administration of the real andpersonal estate do not include the right of legal redemption of theundivided share sold to respondent because the right to redeem onlycame into existence when the sale was perfected 8 years from the deathof Jose Ramirez. The administrator cannot exercise the right of legalredemption since the land was sold AFTER the death of Ramirez. Theright to redeem therefore pertains to the heirs and not the estate. Theadministrator may exercise the right to redeem only if the right pertains tothe estate, and this can only happen if the sale of the said portion to Uywas done BEFORE the death of Ramirez.

NOTE: If one heir gets 2/3 of the estate and another gets 1/3, then theirrespective liabilities for the debt of the deceased is PRO-RATED. Theirliabilities cannot exceed what they receive.

The right of legal redemption under Art1620 NCC is property. Thus, wherea decedent dies without having exercised a right of redemption (andprovided it has not expired), the said right shall be transmitted to his heirsupon his death. In this event, the right of redemption is part of theinheritance. However, where the right of redemption was acquired after thedeath of the decedent, the same pertains to the heirs directly in theirindividual capacities, and not derivatively from the decedent. Butte makes aclear distinction as to when the right of redemption is part of the hereditaryestate, and when it is not. Accordingly, Butte clarifies the issue as to whomay exercise the right of redemption.

DE BORJA V. VDA DE BORJA, 46 SCRA 577 (1972)FACTS: Francisco De Borja, upon the death of his wife Josefa, filed forprobate of her will. When the will was probated, Francisco was appointedas executor and administrator while his son Jose de Borja was appointedco-administrator. Subsequently, Francisco married Tasiana (respondent).Before the estate of Josefa was settled, Francisco died. Tasiana theninstituted testate proceedings wherein she was appointed specialadministratrix.


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The relationship between the children of the first marriage and Tasiana wasmarked by suits and countersuits and as such, a compromise agreementwas entered into between Jose and Tasiana. Pursuant to the agreement,Jose will pay Tasiana P800K as full payment and settlement of herhereditary share in the estate of Francisco as well as in the estate ofJosefa.

When Jose submitted the compromise agreement for court approval,Tasiana opposed the same arguing that the heirs cannot enter into suchkind of agreement without first probating the will of Francisco

ISSUE:WON the compromise agreement was valid

HELD: Yes. There was here no attempt to settle or distribute the estate ofFrancisco de Borja among the heirs thereto before the probate of his will.The clear object of the contract was merely the conveyance by TasianaOngsingco of any and all her individual share and interest, actual oreventual, in the estate of Francisco de Borja and Josefa Tangco. There isno stipulation as to any other claimant, creditor or legatee. And ashereditary share in decedent's estate is transmitted or vested immediatelyfrom the moment of the death of such causante or predecessor in interest xx x, there is no legal bar to a successor (with requisite contracting capacity)disposing of her or his hereditary share immediately after such death, evenif the actual extent of such share is not determined until the subsequentliquidation of the estate.

Since the compromise contract was entered into by and between "Jose deBorja, personally and as administrator of the Testate Estate of JosefaTangco" on the one hand, and on the other, "the heir and surviving spouseof Francisco de Borja by his second marriage, Tasiana Ongsingco vda. deBorja," it is clear that the transaction was binding on both in their individualcapacities, upon the perfection of the contract, even without previousauthority of the Court to enter into the same. The only difference betweenan extra judicial compromise and one that is submitted and approved bythe Court, is that the latter can be enforced by execution proceedings.

The right to the inheritance is transferred to the heirs precisely at themoment of the death of the decedent. From such time, the heirs are deemedto be the owners of the same. De Borja confirms that from the moment of

death of the decedent, the heirs begin to enjoy all the attributes of owner-ship, including the right to dispose (jus disponendi). De Borja holds thatthe pendency of the probate proceeding is no bar to the exercise of suchproprietary rights, since ownership over the hereditary estate has vested inthe heirs from the time of the death of the testator.

De Borja must be distinguished from the prohibition against disposicioncaptatoria in Art 875 NCC. Likewise, it must be reconciled with theprovision of Article 784 which states that the making of a will is a strictlypersonal act of the testator.

ATTY SEBASTIAN: Compromise agreement does not change thedistribution of the estate because the distribution already occurred at thetime the testator died. EFFECT: compromise agreement should be treatedas a deed of conveyance (i.e., Tasiana sold her rights to De Borja)

GO ONG V. COURT OF APPEALS, 154 SCRA 270 (1987)An heir may encumber his share in the estate during settlementproceedings, even without prior approval of the court. Go Ong holds thatthe substantive rights of the heir cannot be impaired by the provisions of theRules of Court. Also, Go Ong holds that pending settlement proceeding, thehalf share of the surviving spouse in the conjugal estate is freely alienableby said surviving spouse.

LEE V. RTC MAKATI BR 85, 423 SCRA 497 (2004)FACTS: Dr. Juvencio Ortanez owned 90% shares in the PhilippineInternational Life Insurance Company Inc (Philinterlife). He was survivedby his legal wife (Juliana Salgado), 3 legitimate children (Jose, Rafaeland Antonio) and five illegitimate children (Ma. Divina, Jose, Romeo,Enrico Manuel and Cesar).

Petitions for the administration of the intestate estate of the Dr. Ortanezwere filed. Pending the appointment of a regular administrator, brothersRafael and Jose were named joint special administrators of their father’sestate. Ma. Divina filed a petition before the court to be appointed asspecial administrator of the Philinterlife shares of stock which wasgranted by the intestate court. Unfortunately, however, the writ ofexecution was not enforced due to the resistance of herein petitioners.


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Juliana and her children, without securing court approval, executed anextrajudicial settlement of the estate of Dr. Ortanez (including thePhilinterlife shares), portioning the estate among themselves.Subsequently, Juliana sold half of Philinterlife shares to FLAG. Rafaelfiled a motion for the approval of the deeds of sale of the Philinterlifeshares and the release of Ma. Divina as special administrator thereof.The intestate court denied the motion and held that the sale of the saidshares were null and void.

Meanwhile petitioner Lee as president of FLAG, increased the authorizedcapital stock of Philinterlife, diluting in the process the 50.725%controlling interest of the decedent.

ISSUES:1. WON the sale executed by juliana in favor of flag is valid;2. WON the probate court can execute its order nullifying the sale3. WON FLAG may increase the authorized capital stock of

philinterlife

HELD:1. No, the sale is void. An heir can sell his right, interest, or

participation in the property under administration under Art. 533Civil Code which provides that possession of hereditary propertyis deemed transmitted to the heir without interruption from themoment of death of the decedent. However, an heir can onlyalienate such portion of the estate that may be allotted to him inthe division of the estate by the probate or intestate court afterfinal adjudication, that is, after all debtors shall have been paid orthe devisees or legatees shall have been given their shares. Thismeans that an heir may only sell his ideal or undivided share inthe estate, not any specific property therein. In the present case,Juliana Ortañez and Jose Ortañez sold specific properties of theestate (1,014 and 1,011 shares of stock in Philinterlife) in favor ofpetitioner FLAG. This they could not lawfully do pending the finaladjudication of the estate by the intestate court because of theundue prejudice it would cause the other claimants to the estate,as what happened in the present case.

It has been settled in earlier cases that (1) any disposition ofestate property by an administrator or prospective heir pending

final adjudication requires court approval and (2) anyunauthorized disposition of estate property can be annulled bythe probate court, there being no need for a separate action toannul the unauthorized disposition.

2. Yes. The intestate court has the power to execute its order withregard to the nullity of an unauthorized sale of estate property,otherwise its power to annul the unauthorized or fraudulentdisposition of estate property would be meaningless. In otherwords, enforcement is a necessary adjunct of the intestate orprobate court’s power to annul unauthorized or fraudulenttransactions to prevent the dissipation of estate property beforefinal adjudication.

3. No, FLAG, who purchased the shares from Juliana, cannotincrease the authorized capital stock to the detriment of theprivate respondents. It is a well-settled principle that the sale ofany property of the estate by an administrator or prospective heirwithout order of the probate or intestate court is void and passesno title to the purchases.

The decision in Lee is consistent with the law. However, Court omitted tostate a very important reason why no heir can sell any specific property ofthe estate prior to the final settlement of the estate without court approval.The reason is that prior to the partition of the estate among the heirs, all ofthe heirs are co-owners of the inheritance, each having an ideal or proindiviso share therein. This co-ownership prevents any heir from alienatinga specific property without court approval, because all other co-heirs havean interest in each of the specific property of the estate. It is only upon thepartition of the estate that each of the heirs may probably acquire absolutetitle to specific properties.

HEIRS OF SPOUSES SANDEJAS V. LINA, 351 SCRA 183(2001)In this case, Justice Panganiban correctly classified the transaction betweenBuyer and Seller as a conditional sale, thereby correcting the CA’s findingsthat the transaction was a contract to sell. Justice Panganiban correctlydistinguished between a contract to sell (wherein the transaction is subjectto the positive suspensive condition that the buyer will deliver the purchaseprice) from a conditional sale (wherein the obligation of the seller to


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execute the deed of sale is conditioned upon the procurement of theapproval of the intestate court). Thus, when the intestate court approved thesale of the property, the condition of the sale was fulfilled and the Sellerand the Buyer are obligated to perform their respective obligations underthe contract.

The Court reiterates the basic rule that an heir may sell his ideal share of theinheritance. Court approval is not necessary before the heir could sell.Judicial approval cannot adversely affect the substantive right of the heir todispose his own pro indiviso share in the co-heirship or co-ownership.

As to the sale of the entire property to the buyer, Justice Panganibancorrectly ruled that the pro-indiviso shares of the non-selling heirs shouldbe excluded from the sale. Hence the transaction between EliodoroSandejas Sr. and Alex Lina cannot extend beyond Eliodoro’s undividedinterest in the property.

REGANON V. IMPERIAL, 22 SCRA 80 (1968)The undivided share of an heir in the inheritance may be levied upon and/orgarnished by an unpaid creditor in order to satisfy a judgment debt of thesaid heir. The fact that the hereditary estate has not been divided among theheirs is of no consequence, particularly if heirship is not disputed and theestate is not burdened by any debt. This is a necessary consequence of theautomatic transmission of ownership under Article 777.

It was argued that the property comprising the hereditary estate was incustodia legis and therefore could not be levied upon, garnished, or besubject to execution. It must be noted that since the guardianshipproceeding terminated ipso facto upon the demise of the ward, and that theownership of the same transferred to the heirs from the moment of suchdeath, the argument was devoid of merit.

It must be borne in mind, however, that prior to the final distribution of thehereditary estate among the heirs, an unpaid creditor may not attach orgarnish a specific property forming part of the estate. The attachment orgarnishment must refer to the hereditary share of the debtor-heir. And inany event, the attachment or garnishment will be effective as regards the

properties which may eventually be allocated to the debtor-heir pursuant topartition.

SALVADOR V. MARIA, 20 SCRA 603 (1967)While the rights to succession are transmitted from the moment of death ofthe decedent, Salvador holds that the right of an heir to his distributiveshare thereto is not determinable until all the estate liabilities have beenpaid. Until then, the right of an heir to his share is not demandable, and issubject to the existence of a residue after the payment of debts. Salvadorfurther holds that the proceeds of the sale of a property forming part of theestate, likewise forms part of the estate.

RAMIREZ V. BALTAZAR, 24 SCRA 918 (1968)The heirs are, pending judicial confirmation of heirship, precluded fromcommencing an action arising out of the rights belonging to the deceased.The rule is necessary for an orderly administration of the estate of thedeceased person. Therefore, as a rule the power to commence suit in behalfof the estate is generally given only to the administrator. However, wherethe administrator fails or refuses to act, or cannot be expected to act in aparticular circumstance, then by way of an exception to the rule, the heirsmay commence the necessary action even if in the meantime, their heirshiphas not been judicially confirmed. In general, the rights to the successionare transmitted from the moment of death of the decedent. The right tocommence suit is not, however, one of those rights granted to the heirs,pending judicial confirmation of heirship.

PUNO V. PUNO ENTERPRISES, 599 SCRA 585 (2009)FACTS: Carlos Puno, an incorporator of respondent Puno EnterprisesInc, died in June 1963. Petitioner Joselito Muni Puno, claiming to be anheir of the decedent, filed an action for specific performance against therespondent. Petitioner averred that he is the son of the deceased withthe latter’s common-law wife, Amelia Puno. As surviving heir, heclaimed entitlement to the rights and privileges of his father asstockholder of respondent. Thus, he prayed that respondent allow him toinspect its corporate books and render an accounting of all thetransactions it entered into from 1962


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ISSUE: WON petitioner should be allowed to inspect the corporation’sbooks and records

HELD: No. Petitioner failed to establish the right to inspect respondentcorporation’s books and receive dividends on the stocks owned byCarlos L. Puno.

A certificate of live birth purportedly identifying the putative father is notcompetent evidence of paternity when there is no showing that theputative father had a hand in the preparation of the certificate.

In any case, Sec 74 and 75 of the Corporation Code enumerate thepersons who are entitled to the inspection of corporate books. Thestockholder’s right of inspection of the corporation’s books and records isbased upon his ownership of shares in the corporation and the necessityfor self-protection. After all, a shareholder has the right to be intelligentlyinformed about corporate affairs. Such right rests upon the stockholder’sunderlying ownership of the corporation’s assets and property.

Upon the death of a shareholder, the heirs do not automatically becomestockholders of the corporation and acquire the rights and privileges ofthe deceased as shareholder of the corporation. The stocks must bedistributed first to the heirs in estate proceedings, and the transfer of thestocks must be recorded in the books of the corporation. Sec 63 of theCorporation Code provides that no transfer shall be valid, except asbetween the parties, until the transfer is recorded in the books of thecorporation. During such interim period, the heirs stand as the equitableowners of the stocks, the executor or administrator duly appointed by thecourt being vested with the legal title to the stock. Until a settlement anddivision of the estate is effected, the stocks of the decedent are held bythe administrator or executor. Consequently, during such time, it is theadministrator or executor who is entitled to exercise the rights of thedeceased as stockholder.

Thus, even if petitioner presents sufficient evidence in this case toestablish that he is the son of Carlos L. Puno, he would still not beallowed to inspect respondent’s books and be entitled to receivedividends from respondent, absent any showing in its transfer book thatsome of the shares owned by Carlos L. Puno were transferred to him.

This would only be possible if petitioner has been recognized as an heirand has participated in the settlement of the estate of the deceased.

The status of an illegitimate child who claims to be an heir to adecedent’s estate cannot be adjudicated in an ordinary civil action, as ina case for the recovery of property.

Notwithstanding Art777 NCC, an alleged heir of a deceased stockholderdoes not, upon the demise of the stockholder, automatically become astockholder of the corporation.

REYES V. RTC MAKATI BR 142, 561 SCRA 593 (2008)Further to Puno v Puno Enterprises, Inc., the Supreme Court in this caseclarified the relationship between the corporation, on the one hand, and theheirs of a deceased stockholder, on the other. While the ruling in relation toSection 63 of the Corporation Code seems to be correct, the dictum of thecourt in relation to the opening of succession under Art 777 NCC, and theconsequences thereof, appear to be debatable. In addition, the ruling of theSupreme Court in relation to the acquisition or vesting of title to the estateof the deceased person in favor of the latter’s heirs is clearly in conflict withthe statutory definition of the term “inheritance” in Art 776 NCC.

SANTOS V. LUMBAO, 519 SCRA 408 (2007)Santos explains in very specific terms the rights of the co-heirs, as co-owners of the estate of a deceased person. The decision specifically refersto a parcel of land which, upon the death of the decedent, passed in co-ownership to her children.The dictum in this case should be compared to the ponencia of JusticeBrion in Reyes v Regional Trial Court of Makati, infra, where he stated:“In the present case, each of Anastacia’s heirs holds only an undividedinterest in the shares. This interest, at this point, is still inchoate and subjectto the outcome of a settlement proceedings; the right of the heirs to specific,distributive shares of inheritance will not be determined until all the debtsof the estate of the decedent are paid.

Art778. Succession may be: (1) Testamentary; (2) Legal orintestate; or (3) Mixed


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TESTATE SUCCESSION – occurs when the person dies with a validwill

INTESTATE SUCCESSION – occurs when (a) the decedent dieswithout leaving a will; (b) he dies and leaves a void will; or (c) he diesand leaves a totally valid but inoperative will

MIXED SUCCESSION – occurs when the estate is distributed partlyby will and partly by operation of law

Art779. Testamentary succession is that which results from thedesignation of an heir, made in a will executed in the formprescribed by law.

TESTAMENTARY SUCCESSION – Occurs when a person dies witha will that is executed in compliance with the formalities required bylaw.

Art 780. Mixed succession is that effected partly by will andpartly by operation of law.

MIXED SUCCESSION – Occurs when a decedent leaves a will whichonly disposes some of his properties, thus the remainder of his estatewould have to be distributed in accordance with the law on intestatesuccession

Testamentary succession preferred – The will of thedecedent, when expressed in the form prescribed by law and withinthe limits provided by the law, is the supreme law in succession.Testamentary succession is preferred over intestate successionbecause the testator can control the disposition of his estate

OTHER CLASSIFICATION OF SUCCESSION FOUND INFAMILY CODE

1. Contractual Succession (Art 84 FC) – Marriagesettlement, which affianced persons are authorized to executebefore the celebration of the marriage, stipulating conditionsfor the conjugal partnership with respect to present and future

property. in such ante-nuptial contract, the affianced personscan donate up to 1/5 of their present property.

Art 84 FC. If the future spouses agree upon a regimeother than the absolute community of property, theycannot donate to each other in their marriage settlementsmore than one-fifth of their present property. Any excessshall be considered void.

Donations of future property shall be governed by theprovisions on testamentary succession and the formalitiesof wills.

The 2nd paragraph of Art 84 FC provides that donations offuture property between spouses shall be governed by theprovisions on testamentary succession and formalities of will.This implies that there are two kinds of donations in an ante-nuptial contract donation inter vivos (1st par Art 84) and mortiscausa (2nd par Art 84)

ATTY SEBASTIAN: This is impossible since it will violate thelaw on joint wills in Art 818. Since an ante-nuptial contractreflects the will of both parties, it violates the law on joint wills.

IMMUTABILITY OF SYSTEM OF PROPERTYRELATIONGeneral Rule: Sale and donation between husband andwife is prohibitedReasons:

(a) To prevent commission of fraud or prejudice to thirdpersons (e.g., creditors)

(b) To prevent one from unduly influencing the other(c) To avoid indirect donations or circumventing the laws

on the property regimes of spouses (most importantreason)


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2. Succession as effect of nullity of marriage(Art 50 FC) – The effect of nullity of marriage (Art 36FC), annulment and legal separation in FC provide for thedelivery of presumptive legitimes by way of cash, properties orsound securities to the common children

Art 50 FC. The effects provided for by paragraphs (2), (3), (4)and (5) of Art 43 and by Art 44 shall also apply in the proper casesto marriages which are declared ab initio or annulled by finaljudgment under Art 40 and 45.

The final judgment in such cases shall provide for the liquidation,partition and distribution of the properties of the spouses, thecustody and support of the common children, and the delivery oftheir presumptive legitimes, unless such matters had beenadjudicated in previous judicial proceedings.All creditors of the spouses as well as of the absolute communityor the conjugal partnership shall be notified of the proceedings forliquidation.In the partition, the conjugal dwelling and the lot on which it issituated, shall be adjudicated in accordance with the provisions ofArt 102 and 129.

Art 51. In said partition, the value of the presumptive legitimesof all common children, computed as of the date of the finaljudgment of the trial court, shall be delivered in cash, property orsound securities, unless the parties, by mutual agreementjudicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property mayask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shallin no way prejudice the ultimate successional rights of the childrenaccruing upon the death of either of both of the parents; but thevalue of the properties already received under the decree ofannulment or absolute nullity shall be considered as advances ontheir legitime.

Art 50 FC provides two instances where the law requires the paymentof legitimes prior to the death of the person who is supposed to paysuch:

(a) Annulment of marriage (Art 45 FC)(b) Petition for declaration of nullity of marriage (Art 40 FC)

Upon the declaration of nullity or annulment of the marriage, thespouses must immediately pay to their children their respectivepresumptive legitimes. In this sense, succession takes place withoutthe element of death

Art 781. The inheritance of a person includes not only theproperty and the transmissible rights and obligations existing atthe time of his death, but also those which have accrued theretosince the opening of the succession.

Accessory follows the principal – Art 781 is not onlysuperfluous, it also creates an erroneous concept of inheritance. Evenwithout this article, an heir would be entitled to the accessions andfruits which have accrued since the death of the decedent, by virtue ofthe right of accession. Since ownership is vested in the heir from themoment of death of the predecessor, necessarily all accessionssubsequent to that moment must belong to such heir. The accessionto such property is not transmitted by death; it is acquired already byvirtue of the right of ownership which is vested from the moment tothe predecessor’s death in the successor. (Tolentino, p.24)

PURPOSE OF THE PROVISION (Mison, p. 38)Art 781 is for the creditor’s protection since even after the point ofdeath, the obligation still accrues interest. For instance, there mightbe cases where an estate might not be liquid to pay of the existingobligations based only on the asserts at time point the decedent’sdeath. But such assets may generate income and equity provides thatthe heirs should not claim bankruptcy and keep the income forthemselves.

CASE: BLAS V. SANTOS, 1 SCRA 899 (1961)FACTS: Simeon Blas contracted two marriages, namely: With MartaCruz, with whom he had three children; and upon the death of Marta,Simeon married Maxima Santos. At the time of the second marriage,no liquidation of the properties acquired by Simeon and Marta was


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made. On Dec. 26, 1936, a week before his death on January 9, 1937,Simeon executed a last will and testament stating that one half of theproperties constitutes the share of his wife, Maxima. Simeon also causedthe preparation of a document, signed by Maxima, that she has read theLast will and testament of Simeon and promised to abide by the terms.She also stated that one half of her share will go to the heirs andlegatees or beneficiaries named in the will of the husband and therest, she can give to whoever she wishes. This document wasprepared at the instance of Simeon since the conjugal properties of thefirst marriage had not been liquidated. Simeon likewise wanted toprevent his heirs by his first marriage from contesting his will anddemanding liquidation of the conjugal properties acquired during the firstmarriage, and an accounting of the fruits and proceeds thereof from thetime of the death of his first wife. Maxima, however, did not complywith promise.

ISSUES:1. WON the heirs of Simeon Blas and wife Marta Cruz can make

any claim for the unliquidated conjugal properties acquiredduring their marriage.

2. Is “Exhibit A” a valid and enforceable contract?

HELD:FIRST ISSUE: No. The heirs of Simeon Blas and his wife Marta Cruzcan no longer make any claim for the unliquidated conjugal propertiesacquired during said first marriage because the same were alreadyincluded in the mass properties constituting the estate of the deceasedSimeon Blas and in the adjudications made by virtue of his will.

SECOND ISSUE: Yes, “Exhibit A” appears to be a compromise asdefined in art. 1809 of the Civil Code of Spain, in force at the time of theexecution of the document, which provides as follows:“Compromise is a contract by which each of the parties in interest bygiving, promising or retaining something avoids the provocation of a suitor terminates one which has already been instituted.”

The agreement or promise that Maxima Santos made in “Exhibit A” is tohold one-half of her share in the conjugal assets in trust for the heirs andlegatees of her husband in his will, with the obligation of conveying the

same to such of his heirs and legatees an she may choose in her last willand testament. This kind of agreement is valid.

JBL REYES, CONCURRING:1. Future inheritance is the contingent universality or complex of

property rights and obligations that are passed to the heirs uponthe death of the grantor. The inheritance of a person may includenot only his property that he already owns at a given time, but alsohis future property, that is to say the property that he maysubsequently acquire. The inheritance or estate consists of thetotality of assets and liabilities he holds at the time of his demise,and not what he possesses at some other time.

2. The Court has repeatedly sanctioned donations inter vivos whereinthe donor has reserved to himself the right to enjoy the donatedproperty for the remainder of his days, and defers the actualtransfer of possession to the time of his death.

3. The provisions of “Exhibit A” is merely the method selected by theparties for carrying out the widow’s agreement to convey to theappellees the property in question without losing its enjoymentduring her natural life, and does not affect the substance or validityof the transaction. To ensure the widow’s possession of theproperty and the perception of its fruits while she was alive, themeans logically selected was to return it by will, since such aconveyance could only be operative after death.

Art 776 NCC defines the inheritance of a person. Art 1347 of the sameCode prohibits any contract involving future inheritance. Blas interprets themeaning of Art 1347 in connection with Art 776.

The promise does not refer to any properties that the maker would inheritupon the death of her husband. The document refers to existing propertieswhich she will receive by operation of law on the death of her husband,because it is her share in the conjugal assets.

ATTY SEBASTIAN: It is a UNILATERAL contract because there is aconsideration (the forbearance of Marta’s children); unilateral consent andobject (Maxima’s share in the conjugal assets)


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Future inheritance – when you speak of something that you will inherit inthe future, e.g. if what you sold is your hereditary rights to the property sothat you can receive the money today so when your father dies the buildinggoes the buyer, the sale is VOID (The contract has no object)There is no discussion of future inheritance to Maxima since herundertaking was that once she gets ½ of her conjugal share, half of it will begiven to the heirs of Marta

Art782. An heir is a person called to the succession either by theprovision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real andpersonal property are respectively given by virtue of a will.

HEIR – The term “heir” includes all relatives who succeed by virtueof the laws of intestate succession, as well as all persons, whetherrelatives or not, who take what might be called the residuary estateunder a will.

An heir is anyone who succeeds to the whole or to a portion orfraction of the inheritance, whether he succeeds by virtue of awill or by intestacy.

KINDS OF HEIRS1. Compulsory heirs – Those who succeed BY FORCE OF

LAW to some portion of the inheritance, in an amountdetermined by law, of which they cannot be deprived by thetestator, except by a valid disinheritance. They succeedregardless of the will of the decedent

2. Voluntary or testamentary heirs – Those whoare instituted by the testator in his will, to succeed to theinheritance or the portion thereof of which the testator canfreely dispose; their right the succession depends entirelyupon the will. They succeed by reason of a will

3. Legal or intestate heirs – Those who succeed tothe estate of the decedent who dies without a valid will, or tothe portion of such estate which is not disposed of by will.They succeed in the absence of a will.a. Those who inherit in their own rightb. Those who inherit by right of representation

LEGATEE VS DEVISEE – A legatee is one who is given a gift ofpersonal property by will; a devisee is one to whom real property isgiven by will. There is a devisee or a legatee only in testamentarysuccession.

HEIRS AND DEVISEES/LEGATEES DISTINGUISHEDHEIRS DEVISEES OR LEGATEES

Succeed to an indeterminate oraliquot portion

Succeed to Individual items ofproperty

Universal title Particular titleSucceed by means of a will or byoperation of law

Succeed by means of a will

IMPORTANCE OF DIFFERENCE – The difference in treatment liesin the concept of preference which entitles a person to a superior rightover all others with respect to a specific property. when a testatordistributes an estate by way of legacies and devises, he grantsparticular properties to designated beneficiaries. On the other hand,when a testator merely designates heirs to his estate, the latter willonly divide whatever is left behind after the distribution of the legaciesand devises

II. TESTAMENTARY SUCCESSION

A. WILLS

Art783. A will is an act whereby a person is permitted, with theformalities prescribed by law, to control to a certain degree thedisposition of this estate, to take effect after his death.WILL – A will is an act whereby a person controls to a certaindegree the disposition of his estate after his death. It is an act bywhich a capacitated persons disposes of his property and rights ordeclares or complies with the duties to take effect after his death

A will is a personal, solemn, revocable and free act by which acapacitated person disposes of his property and rights ordeclares or complies with duties to take effect after his death(Tolentino, p. 29)


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PURPOSE OF A WILLA person writes a will because he wants to control the disposition ofhis estate after his death. A will which is executed fro the solepurpose of recognizing an illegitimate child or for the sole purpose ofrequiring certain funeral rites is not a will.

KINDS OF PROPERTY DISPOSITION1. Direct – When there is an actual provision in the will

where a person identifies a certain property and gives it to aspecific individual

2. Indirect – When the will disposes of property inference orimplication, such as in cases of disinheritance

LIMITATIONS TO PROPERTY DISPOSITIONSThe freedom of a person to dispose of his property by virtue of a willshall necessarily subject to the provisions of the law on legitimes.Under Art 886 NCC, a legitime is that part of the testator’s propertywhich he cannot dispose because the law has reserved it for certainheirs who are called compulsory heirs.

CHARACTERISTICS OF THE MAKING OF A WILL1. Statutory right – conferred by law2. Unilateral – Only one party is necessary to make a will.

Beneficiaries are not required to accept until testator dies;prior acceptance is ineffective.

3. Personal – A person cannot delegate the writing ormaking of a will to third persons. The determination of whothe beneficiaries are, what is to be given, conditions andterms, are to be personally determined by the testator

4. Free or Voluntary – The will must be a free andvoluntary act of the testator. Any vice of consent (FIVUM)makes the will void

5. Revocable or ambulatory – Since the dispositions willonly take effective upon death of the testator, he can changehis mind and revoke his will any time prior to his death. Norights can be said to have been impaired.

6. Formal – The making of a will must conform to formalitiesprescribed by law. Holographic wills are subject to no otherform, but notarial wills are required to comply with formalitiesfound in Art 804-809

7. Effective mortis causa – Regardless of the tenor ofthe will, the effectivity of the property dispositions is effectiveonly upon the death of the testator. If the disposition iseffective immediately = DONATION

8. Individual – The making of a will is an individual act. Art818 is a specific prohibition on joint wills

Art784. The making of a will is a strictly personal act; it cannotbe left in whole or in part of the discretion of a third person, oraccomplished through the instrumentality of an agent orattorney.

STRICTLY PERSONALThe making of a disposition, the expression of the will of the testator,,that is not subject to delegation. The testator cannot substitute themind or will of another for his own. But the mere mechanical act ofdrafting the will may be done by a third person, inasmuch as such actdoes not constitute a delegation of the will or disposition. In the caseof notarial wills, the testator still has to personally participate in themaking of the will either by signing it in the presence of witnesses orby directing another person to sign his name as provided by Art 805NCC.

Art785. The duration or efficacy of the designation of heirs,devisees or legatees, or the determination of the portions whichthey are to take, when referred to by name, cannot be left to thediscretion of a third person.

REASON: The matters mentioned in Art 785 are testamentary innature; they constitute expressions of the will or disposition of thetestator. Hence, following the principle stated in Art 784, they cannotbe delegated to a third person


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The discretionary powers of the testator to declare when or how longthe designation of heir is effective cannot be delegated to another. Anylimit or term affecting the designation is as personal as the designationitself.

Art786. The testator may entrust to a third person thedistribution of specific property or sums of money that he mayleave in general to specified classes or causes, and also thedesignation of the persons, institutions or establishments towhich such property or sums are to be given or applied.

ALLOWABLE DELEGATIONArt 786 NCC provides that the distribution of a specified sum to aspecified class of people can be entrusted to a third person. This isallowed because testamentary discretion had already been exercisedand what is merely delegated is the implementation of such.

REASON: This type of delegation is allowed because when a personmakes a class designation, he is unfamiliar with such matter. Thetestator feels that another person is in a better position to makeequitable allocation of the sum set aside. The law does not want todisqualify a testator from giving to charity just because he isunfamiliar with the inner workings of charity work.

Art787. The testator may not make a testamentary dispositionin such manner that another person has to determine whether ornot it is to be operative.

PROHIBITED DELEGATIONThe determination as to the effectiveness of a particular testamentarydisposition cannot be delegated without violating the personalcharacteristic of a will. To delegate to a third person the power todetermine whether or not a testamentary disposition is to be operativeis in effect delegating the power to make the testamentary disposition.

Art788. If a testamentary disposition admits of differentinterpretations, in case of doubt, that interpretation by which thedisposition is to be operative shall be preferred.

PURPOSE: The main purpose is to ascertain the meaning and intentof the testator in the will. In construing the provisions of the will,substance rather than form must be regarded and the instrumentshould receive the most favorable construction to accomplish purposeintended by the testator. Thus, the intention of the testator iscontrolling; as such, it is necessary to interpret the intention rationallyand in such a manner as not to render ineffective the testamentarydisposition.

GENERAL RULE: When the will is clear, there is no need to resort torules of interpretation or construction.

EXCEPTION: In case of doubt, the intent of the testator mustprevail.

Art789. When there is an imperfect description, or when noperson or property exactly answers the description, mistakes andomissions must be corrected, if the error appears from thecontext of the will or from extrinsic evidence, excluding the oraldeclarations of the testator as to his intention; and when anuncertainty arises upon the face of the will, as to the applicationof any of its provisions, the testator's intention is to beascertained from the words of the will, taking into considerationthe circumstances under which it was made, excluding such oraldeclarations

KINDS OF AMBIGUITIES1. Latent or Intrinsic – One which appears upon the

face of the instrumento When there is an imperfect description or when no

person or property exactly answers the descriptiona. Latent as to PERSON – “I institute ¼ of my estate

to my first cousin Jose” and the testator has more thanone first cousin named Jose

b. Latent as to PROPERTY – “I devise to my fristcousin Jose my fishpond in Roxas City” and the testatorhas more than one fishpond in Roxas City


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2. Patent or extrinsic – One which cannot be seenfrom mere perusal or reading of the will, but appears onlyupon consideration of extrinsic circumstances

o When an uncertainty arises upon the face of the will,as to the application of any of its provisions

a. Patent as to PERSON – “I institute ¼ of my estateto some of my first cousins.”

b. Patent as to PROPERTY – “I bequeath to mycousin Jose some of my cars

In both cases, the ambiguity is evident from a reading of thetestamentary provisions themselves; the ambiguity is patent (patere –to be exposed)

IMPORTANCE: because as the will, as defined, is an act whereby personis permitted, with the formalities prescribed by law, to control to acertain degree the disposition of his estate to take effect after hisdeath. (Art. 783)

Resort to interpretation ONLY IF THERE IS AN AMBIGUITY inthe will. Where the will is clear, there is no room for interpretation.

REMEDIESSince the mistake came from the testator, the solution to resolve themistake must come from the testator by determining the testator’sintent when the disposition was made.

1. Inspect the instrument – Read the entire will to findthe intent since there by be other provisions in the will that willhelp in the construction of ambiguous provisions

2. Resort to extrinsic evidence – Resort to extrinsicevidence, except testimonies of the testator himself or oraldeclarations, if the intention of the testator is not readilyascertainable from simply reading the whole will. The extrinsicevidence referred to in this article is that circumstantialevidence that may help reveal testamentary intent.

PERTINENT PROVISIONS IN THE RULES OF COURT ONEVIDENCE

1. PAROL EVIDENCE RULE (Sec 9 Rule 130 ROC)]

GENERAL RULE: Anything reduced into writing is supposedto contain all such terms and conditions of the agreement.Therefore, as to the parties and their successors in interest,there can be no evidence as to their agreement other than thewritten instrument itself, subject to certain exceptions.

EXCEPTIONS:a. If there is an intrinsic ambiguity, mistake or imperfection

in the agreement;b. The failure of the written agreement to express the true

intent and agreement of the parties theretoc. The validity of the written agreement; ord. The existence of other terms agreed to by the parties or

their successors in interest after the execution of thewritten agreement (will)

REASON: Because human memory is not reliable. Parolevidence is based upon the consideration that when the partieshave reduced their agreement on a particular matter intowriting, all their previous and contemporaneous agreementson the matter are merged therein.

2. DEADMAN’S STATUTE (Sec 23 Rule 130 ROC)– Inan action where a claim is filed against the estate, where theplaintiff is the claimant and the defendant is the executor, bothparties are prohibited to testify as to something which thedeceased said in his lifetime.

REASON: A dead man cannot refute a tale.

Section 9. Evidence of written agreements. — When the termsof an agreement have been reduced to writing, it is considered ascontaining all the terms agreed upon and there can be, betweenthe parties and their successors in interest, no evidence of suchterms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or addto the terms of written agreement if he puts in issue in hispleading:


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(a) An intrinsic ambiguity, mistake or imperfection in the writtenagreement;(b) The failure of the written agreement to express the true intentand 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 theirsuccessors in interest after the execution of the written agreement.

The term “agreement” includes wills.

Section 23. Disqualification by reason of death or insanity ofadverse party. — Parties or assignor of parties to a case, orpersons in whose behalf a case is prosecuted, against an executoror administrator or other representative of a deceased person, oragainst a person of unsound mind, upon a claim or demandagainst the estate of such deceased person or against such personof unsound mind, cannot testify as to any matter of fact occurringbefore the death of such deceased person or before such personbecame of unsound mind.

Art790. The words of a will are to be taken in their ordinaryand grammatical sense, unless a clear intention to use them inanother 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 unlessit satisfactorily appears that he was unacquainted with suchtechnical sense.

ORDINARY INTERPRETATIONNon-technical words are interpreted ordinarily unless testamentaryintent provides otherwise AND that such peculiar or differentinterpretation can be ascertained.

ROC ON INTERPRETATION OF DOCUMENTSSection 14. Peculiar signification of terms. — The terms of awriting are presumed to have been used in their primary and general

acceptation, but evidence is admissible to show that they have a local,technical, or otherwise peculiar signification, and were so used andunderstood in the particular instance, in which case the agreement mustbe construed accordingly.

Section 11. Instrument construed so as to give effect to allprovisions. — In the construction of an instrument, where there areseveral provisions or particulars, such a construction is, if possible, to beadopted as will give effect to all.

Technical words are interpreted in their technical sense unlesstestamentary intent provides otherwise OR it can be proven that thetestator was unfamiliar with such technical word and he made the willunassisted by any technical person.Art791. The words of a will are to receive an interpretationwhich will give to every expression some effect, rather than onewhich will render any of the expressions inoperative; and of twomodes of interpreting a will, that is to be preferred which willprevent intestacy.

PREFERENCE OF TESTACY OVER INTESTACYThe mere fact that a will was executed already gives preference totestamentary succession. In interpreting a will, the cardinal rule to befollowed is the testator’s intent.

CASE: DIZON-RIVERA V. DIZON, 33 SCRA 554 (1970)FACTS: Agripina Valdez died and was survived by 7 compulsory heirs(6 legitimate children and 1 legitimate grandchild as heir of a pre-deceased legitimate child). She left a will. One of the compulsory heirsMarina Dizon was appointed executrix. The real and personal propertiesof the testatrix had a total appraised value of P1,811,695. The legitimeof each of the compulsory heirs amounted to P129,362.11. In her will,Agripina commanded that her property be divided in accordance with hertestamentary disposition, whereby she devised and bequeathed specificreal properties to her children and grandchildren. Marina and Tomaswere given more than their respective legitimes, while the rest receivedless than their respective legitimes.


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Marina submitted a project of partition, adjudicating the properties giventhem in the will, plus cash and/or properties to complete the respectivelegitimes to P129,254.96 of those given less while Tomas and Marinamust pay in cash or property an amount necessary to complete theprejudiced legitimes. The oppositors, who were the other 6 compulsoryheirs (including Tomas), submitted their counter-project of partitionwhere they proposed the reduction of all testamentary dispositionsproportionately to the value of ½ of the entire estate corresponding to thefree portion and the other half to be divided among the 7 compulsoryheirs as constituting their legitimes.

ISSUE: WON the testamentary dispositions in the will are in the natureof devises imputable to the free portion of the estate and thereforesubject to reduction

HELD: Yes. Art 788 and 791 NCC are applicable in this case. Thetestamentary disposition made by the testatrix was in the nature of apartition of her estate by will. The testatrix specified each real property inher estate and designated the particular heir among her 7 compulsoryheirs and 7 other grandchildren to whom she bequeathed the same.This was a valid partition of her estate as contemplated in Art 1080 NCC,providing that “should a person make a partition of his estate by an actinter vivos or by will, such partition shall be respected, insofar as it doesnot prejudice the legitime of the compulsory heirs.” This right of atestator to partition his estate is subject only to the right of compulsoryheirs to their legitime.

The testamentary dispositions of the testatrix, being dispositions in favorof compulsory heirs, do not have to be taken only from the free portion ofthe estate, for the 2nd par of Art 842 NCC precisely provides that “onewho has compulsory heirs may dispose of his estate provided he doesnot contravene the provisions of this Code with regard to the legitime ofthe said heirs.

DETERMINATION OF TESTATOR’S INTENT: If a will is subject todifferent interpretations, the cardinal principle of determining thetestator’s intent must dictate which of these interpretations will befollowed. The law does not prohibit a testator from favoring people inmaking the provisions of his will provided that he respects the legitime of

the compulsory heirs. Thus, when the will clearly indicates “favored”heirs, then the interpretation must be in such a way that such othersremain “favored” than the others.The words of a will are to receive an interpretation which will give to everyexpression some effect, rather than one which will render any of theexpressions inoperative. Of the two projects of partition submitted by thecontending parties, that project which will give the greatest effect to thetestamentary disposition should be adopted. Thus, where the testatrixenumerated the specific properties to be given to each compulsory heir andthe testatrix repeatedly used the words "I bequeath" was interpreted to meana partition of the estate by an act mortis causa, rather than as an attempt onher part to give such properties as devises to the designated beneficiaries.Accordingly, the specific properties assigned to each compulsory heir weredeemed to be in full or partial payment of legitime, rather than adistribution in the nature of devises.

The tenor of the decision notwithstanding, it is important to note theprovision of Art 886. Art 886 is couched upon a negative prohibition"cannot dispose of". In the will under consideration, the testatrix disposedof practically her entire estate by designating a beneficiary for eachproperty. Necessarily, the testamentary dispositions included that portion ofthe estate called "legitime." It is thus imperative to reconcile the tenor ofArt 1080 (which is the basis of the following decision) with Art 886.

VDA DE VILLAFLOR V. JUICO, 4 SCRA 550 (1962)FACTS: On October 9, 1908 Don Nicolas Villaflor, a wealthy man ofCastillejos, Zambales, executed a will in Spanish in his own handwriting,devising and bequeathing in favor of his wife, Doña FaustaNepomuceno, one half of all his real and personal properties, giving theother half to his brother Don Fausto Villaflor

Don Nicolas died in 1922, without begetting any child with his wife DoñaFausta. The latter, already a widow, thereupon instituted specialproceedings for its settlement of her husbands’ estate and thatproceeding, she was appointed judicial administratrix. She submitted aproject of partition, and the probate court approved the project of partitionand declared the proceedings closed.


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As the project of partition, Exhibit “E” now shows Doña Fausta receivedby virtue thereof the ownership and possession of real and personalproperties mentioned and referred to in clause with the will. The orderapproving the project partition (Exhibit C), however, expressly providedthat approval thereof was “ sin perjuico de los disperesto in al clausala8.0 del testamento de Nicolas Villaflor”.

In 1956, Doña Fausta died without having begotten any child with thedeceased Don Nicolas. The estate is being settled in a specialproceeding with its defendant Delfin N. Juico, as the duly appointed andqualified judicial administrator.

The plaintiff Leonor Villaflor Vda. De Villanueva is admitted to be thesame Leonor Villaflor mentioned by Don Nicolas in his will as his“sobrina nieta Leonor Villaflor”. (niece)

ISSUE: WON defendant’s position, adopted by the trial court, is that thetitle to the properties aforesaid becomes absolutely vested in the widowupon her death, on account of the fact that she never remarried, will besustained.

HELD: No, the testament of Don Nicolas clearly and unmistakablyprovided that his widow should have the possession and use (usufruct)of the legacies while alive and did not remarry. It necessary follows thatby the express provisions of the 8th clause of his will, the legacies shouldpass to the testators’ “sobrina nieta”, appellant, upon the widow’s death,even if the widow never remarried in her life lifetime. Consequently, thewidow had no right to retain or dispose of the aforesaid properties, andher estate is accountable to the reversionary legates for their retain,unless they had been lost due to fortuitous event, or for their valueshould rights of innocent third parties have intervened.

The following decision illustrates the application of the rule that thelanguage of a will must be interpreted in such a way that every expressiontherein must be given some effect. Therefore, an interpretation whichsuppresses a provision cannot be adopted if there is another way ofconstruing the said dispositions.

Art792. The invalidity of one of several dispositions containedin 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 beenmade.The general rule is that each disposition is independent from anothersuch that if one is invalidated then the other remains unaffected. If itcan be shown that the testator made the dispositions interrelated orinterconnected, then the invalidity of one invalidates the other.

Art793. Property acquired after the making of a will shall onlypass thereby, as if the testator had possessed it at the time ofmaking the will, should it expressly appear by the will that suchwas his intention.

PURPOSE: The main purpose is to prevent at least partial intestacysince the assets a testator can dispose of are only those which are inexistence at the time of the execution of the will. All assetssubsequently acquired after the making of the will would have to passby intestate succession. EXCEPT: Unless a contrary intentionexpressly appears on the will.

EXAMPLE: Any OTHER property not included in this will shall pass tothe above-named heirs in the following proportion…

Art 793 pertains to the properties acquired by the testator after theexecution of the will WHEREAS Art 781 NCC pertains to propertieswhich accrued after the death of the testator. Art 793 allows thecomplete distribution of the testator’s estate to include thoseproperties not yet acquired during the execution of the will.

Art794. Every devise or legacy shall cover all the interest whichthe testator could device or bequeath in the property disposed of,unless it clearly appears from the will that he intended to conveya less interest.

When the testator does not state the extent of interest that he gives tothe legatee or devisee in the property transmitted, it is understoodthat his whole interest passes, no more and no less. Under Art 794,the testator may manifest his intention to convey a less interest; andunder Art 929, he may expressly convey a larger interest. In suchcases, the intention of the testator prevails.


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Art795. The validity of a will as to its form depends upon theobservance of the law in force at the time it is made.

For a will to distribute and dispose the properties, rights andobligations to the heirs, the same must be completely valid, satisfyingall the requirements for intrinsic and extrinsic validity.

INTRINSIC VALIDITYThis is concerned with substantive validity of such as issues concerninglegitimes, capacity of heirs, preterition, collation, etc. As to TIME, thelaw operating at the time of death shall be thegoverning law because at the time of the execution of the will, noright has yet accrued to those who were designated as beneficiaries ofthe will and as such, no right may be violated by a subsequentamendment of the law.

BASISArt16. Real property as well as personal property is subject tothe law of the country where it is stipulated.

However, intestate and testamentary successions, both withrespect to the order of succession and to the amount ofsuccessional rights and to the intrinsic validity of testamentaryprovisions, shall be regulated by the national law of the personwhose succession is under consideration, whatever may be thenature of the property and regardless of the country wherein saidproperty may be found.

EXTRINSIC VALIDITYThis refers only to formal validity which the law requires, i.e. theformalities of the will. As to the formal validity with respect to time,the law enforced at time of the execution of the will is the governinglaw because this is the fundamental requirement of due process. Onecannot be required to anticipate future law when making a will,otherwise it would be very unreasonable and would not pass the testof due process.

1. As to the TIME of execution – Art 795: The validityof a will as to its form depends upon the observance of the lawin force AT THE TIME IT IS MADE.

2. As to a Filipino in a FOREIGN country – Art815: He is authorized to make a will in any of the formsestablished by the law of the country in which he may be.Such will may be probated in the Philippines.

3. As to alien who is ABROAD – Art 816: The will of analien who is abroad produces effect in the Philippines if madewith the formalities prescribed by the law of the place in whichhe resides, or according to the formalities observed in hiscountry, or in conformity with those which this Code prescribes

4. As to an alien who is in the PHILIPPINES –Art 817: A will made in the Philippines by a foreigner which isexecuted in accordance with the law of the country of which heis a citizen or subject, and which might be provide and allowedby the law of his own country, shall have the same effect as ifexecuted according to the laws of the Philippines.

EFFECTS OF A NEW LAW CHANGING THE FORMALITIESOF A WILL

1. AFTER THE DEATH of the testator, the rules have no effectbecause the heirs already have a vested right.

2. BEFORE THE DEATH of the testator, the rules have no effectEXCEPTION: If the new law expressly provides for aretroactive applicationEXCEPTION TO THE EXCEPTION: When the heirs alreadyhave a vested right

CONFLICTS RULE1. Filipino

a. Philippine law (because of the Nationality rule)b. Law of executionc. Law of the place where he was at the time of his deathd. Lex loci celebrationis – Law where the contract is

celebrated


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2. Foreigner owning properties in thePhilippinesa. Alien living abroad but with properties in the Philippines –

either: Philippine laws, lex loci celebrationis, nationalitylaw or domiciliary law

b. Alien residing in the Philippines with properties in thecountry – domiciliary law and nationality law

Where nationality laws cannot apply, the domiciliary law shall apply.

A testator cannot stipulate in his will that the law in another countrywill prevail. Art 16 provides that with respect to intrinsic validity oftestamentary and intestate succession, the national law of thedecedent shall prevail.

CASE: BELLIS V. BELLIS, 20 SCRA 358 (1967)FACTS: Amos Bellis, an American citizen and resident of Texas,executed a will in the Philippines, in which he disposed of his estate tohis relatives including his first wife, his 3 illegitimate children, and hissurviving children from his first and second marriage. Upon his death,his will was admitted to probate in Manila. The executor complied withthe provisions of the will and filed a project of partition. Plaintiffs, 2 of the3 illegitimate children, opposed the partition on the ground that they weredeprived of their legitimes as illegitimate children.

ISSUE: Which law should apply—Texas law or Philippine law

HELD: Texas law should apply. Art 16 par 2 and Art 1039 NCC statethat the national law of the decedent, in intestate or testamentarysuccessions, shall govern with regard to the four items: (a) order ofsuccession; (b) the amount of successional rights; (c) the intrinsic validityof the provisions of the will; and (d) the capacity to succeed. The partiesadmit that the decedent was a resident of Texas and under the laws ofTexas there are no forced heirs or legitimes. Accordingly, the intrinsicvalidity of the provision of the will and the amount of successional rightsare to be determined under Texas law and not the Philippine law.

The formal validity of a will depends upon the observance of the law inforce at the time of execution. On the other hand, the substantive validity

of the dispositions therein is governed by the laws in force at the time of thedeath of the testator.

B. TESTAMENTARY CAPACITY AND INTENT

Art797. Persons of either sex under eighteen years of agecannot make a will.

Art 798. In order to make a will it is essential that the testatorbe of sound mind at the time of its execution. (n)

Art799. To be of sound mind, it is not necessary that thetestator be in full possession of all his reasoning faculties, or thathis mind be wholly unbroken, unimpaired, or unshattered bydisease, injury or other cause.

It shall be sufficient if the testator was able at the time of makingthe will to know the nature of the estate to be disposed of, theproper objects of his bounty, and the character of thetestamentary act.

TESTAMENTARY CAPACITY – The ability to as well as the powerto make a will; Fitness to make a will

This must be present at the time ofEXECUTION of the will

Testamentary capacity is presumed; mere weakness of mind or partialimbecility from disease of body or from age does not render a personincapable of making a will.

NOTES: Only natural persons can make a will1. Even spendthrifts are not barred from making a will2. Those under civil interdiction are not disqualified to make a will

(they are only disqualified to make disposition inter vivos)

REQUISITES OF TESTAMENTARY CAPACITY1. AGE – At least 18 years of age


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o The required age is reached at the commencement ofthe day preceding the anniversary of the birthday, i.e.it is sufficient that the last day of the 18th year shallhave commenced. No fractions of a day

2. OF SOUND MIND – Soundness of mind is required at thetime of the execution of the will. It does not mean completepossession of physical and mental faculties; a personpossesses testamentary capacity as long as he has the abilityto know the nature of his estate, the proper objects of hisbounty, and the character of the testamentary actREQUISITES:a. Nature of the estate – Testator should have a

fairly accurate knowledge of what he owns; he must beable to comprehend their kind and character to be able todesignate them The more he owns, the less accurate his

knowledge of his estate is (as expected)b. Proper objects of his bounty – Testator should

know, under ordinary circumstances, his relatives in themost proximate degrees, his knowledge expectedlydecreasing as the degrees become more remote. Proper objects are those people who have a

legitimate claim to the estate, either by right orout of gratitude

c. Character of the testamentary act –Testator must have the mental capacity to understand thenature of his act i.e., that the instrument is an act ofdisposition which will take effect mortis causa

ATTY SEBASTIAN: It is not required that the testator possesses all 3abilities. They are mere guidelines to ascertain the soundness of mind ofthe testator (not a quantitative measure of a sound mind). This isbecause soundness of mind cannot be legislated. Medical doctors cannotgive a quantitative measure of what a sound mind is.

EFFECT OF CERTAIN INFIRMITIESNeither sickness, old age, deafness, senile debility, blindness, nor poormemory, nor the fact that somebody had to guide the testator’s hand

in order that he might sign, is by itself sufficient to establish apresumption of lack of testamentary capacity, when there is sufficientevidence of the mental sanity of the testator at the time of theexecution of the will. On the other hand, the absence of testamentarycapacity is not equivalent to insanity; actual insanity need not exist inorder that a person may be said to lack testamentary capacity. It isenough that the mental condition be such that there is a want ofunderstanding of the nature and consequences of the disposition of thewill

1. Senile Dementia – Mere senility or infirmity of old agedoes not necessarily imply that a person lacks testamentarycapacity.

o Senile dementia (peculiar decay of the mental facultieswhereby a person afflicted is reduced to secondchildhood), not senility is the one that producestestamentary incapacity. To constitute complete seniledementia, there must be such failure of the mind as todeprive the testator of intelligent action

2. Infirmity or Disease – Physical infirmity or diseaseis not tantamount to testamentary incapacity

3. Mental Delusions – Not every mental delusion willrender one incapable of making a will.

o4. Mental disease or Insanity – There may be

mental incapacity to make a will without actual insanityo Persons suffering from idiocy (those congenitally

deficient in intellect) and imbecility (those who aremental deficient as a result of disease) do not possessthe necessary mental capacity to make a will

o An insane delusion which will render one incapable ofmaking will is one who beliefs in things which do notexist, and which no rational mind would believe toexist

o To justify the setting aside of a will, it must be shownthat the will was the product or offspring of thedelusion, or at least, that it was influenced by thedelusion

5. Deaf, dumb and blind – Art 807 NCC recognizes thecapacity of a deaf-mute to make a will, even if he does not


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know how to read and write; and Art 808 accepts theincapacity of a blind testator to make an ordinary or attestedwill.

o If the testator be deaf, or a deaf-mute, he mustpersonally read the will, if able to do so; otherwise, heshall designate two persons to read it andcommunicate to him, in some practicable manner, thecontents thereof. (Art. 807)

o If the testator is blind, the will shall be read to himtwice; once, by one of the subscribing witnesses, andagain, by the notary public before whom the will isacknowledged. (Art 808)

6. Eccentricities and Prejudices – An eccentricmay make a valid will, despite the peculiarity of his conduct aslong as he understands the contents of the instrument andwishes it to constitute his testamentary act.

7. Belief in Supernatural – A will executed by oneunder such an extraordinary belief in spiritualism that hefollows blindly and implicitly supposed directions of spirits inconstructing the will is not admissible to probate

8. Drugs and intoxicantsGENERAL RULE: The admission of a will to probate will notbe denied merely on the proof that the testator was addictedto the excessive use of liquors or drugsEXCEPTION: IF at the time of the making of the will, thetestator was so much under the influence of the intoxicants ordrugs as to be unable to bring to the business at hand thejudgment which the law requires of a testator.

bring to the business at hand the calm judgment which the law requires of atestator.

Art800. 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 atthe time of making his dispositions is on the person who opposesthe probate of the will; but if the testator, one month, or less,before making his will was publicly known to be insane, the

person who maintains the validity of the will must prove that thetestator made it during a lucid interval.

The presumption is that the testator is of sound mind. The obligationto prove the mental capacity of the testator rests upon those whoallege such incapacity. Conclusive proof of the mental incapacity andthe evident lack of reason and judgment at the time of the executionof the will must be shown before a will may be set aside on the groundof incapacity of the testator.

EXCEPTION TO THE PRESUMPTION OF SANITYIt is the person who maintains the validity of the will who has to provethat the testator as of sound mind, If the testator, one month or less,before making his will was publicly known to be insane.

The opinion of non-professional witnesses as to the sanity or insanityof the testator is generally permitted to be given, whether thewitnesses be attesting witnesses or not of the will. In case they arenot the attesting witnesses, they are required to give the reason fortheir opinion as to the sanity or insanity of the testator. Attestingwitnesses, however, are not generally required to state the facts uponwhich they base their opinion; since their testimony is entitled to thehighest regard (Tolentino, p. 61).

The law presumes that the testator is of sound mind UNLESS: (PI-G)a. The testator, one month or less , before making his will, was

PUBLICLY known to be insane; orb. He was under GUARDIANSHIP at the time of making his will

(Torres and Lopez de Bueno v Lopez G.R. No. 24569, February26, 1926).

Art801. Supervening incapacity does not invalidate an effectivewill, nor is the will of an incapable validated by the superveningof capacity.

EFFECT OF INCAPACITYTestamentary capacity is determined at the point of the execution ofthe will. If at the time the will was made, the testator was qualified tomake the same, but subsequently becomes incapacitated, thissubsequent change in capacity does not invalidate the will. But if the


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testator did not have the capacity at the time of execution, thesubsequent acquisition of capacity on his part does not validate thewill.Art802. A married woman may make a will without the consentof her husband, and without the authority of the court.

Art803. A married woman may dispose by will of all herseparate property as well as her share of the conjugalpartnership or absolute community property.

With the advent of the absolute community of property under the FC,Art 802 and 803 are of little application. A married woman iscapacitated to make a will with no other requirements aside from thepresence of testamentary capacity.

C. FORMS OF WILLS

Art804. Every will must be in writing and executed in alanguage or dialect known to the testator.

The legislature has the power to prescribe the formalities to beobserved in the execution of a will, and by so doing does not interferewith the rights of an individual to dispose of his property; thesetechnical mandates must be complied with. It is not a question of theintention of the testator or attesting witnesses, but of the intention ofthe legislature. Even though a person undertakes to make his will andto do certain acts with the intention of executing the same, yet if hefails to satisfy the statutory requirements as to execution, thedocument must be denied probate.

PURPOSE OF FORMALITIESThe primary purpose for the formal requirements of wills is to regulatethe making of the will which involves the transfer of real rightseffective upon the death of the transferor.

1. To close the door against bad faith and fraud2. To avoid substitution of wills and testaments; and

3. To guaranty their truth and authenticity (Abangan v. Abangan40 PHIL 476, 1919)

MANDATORY REQUIREMENTThe provisions of Article 804 are MANDATORY and failure to complywith the two requirements nullifies the will. Neither the will nor theattestation clause need to state compliance with Art 804. This can beproved by EXTRINSIC EVIDENCE.

COMMON FORMALITIES1. Every will must be in writing – Only two wills

are recognized in this jurisdiction: notarial will and holographicwill. Both are required to be in writing

o In ordinary (notarial) wills, it does not matter on whatmaterial it is written. It may be written by hand ortypewritten

o If the will is holographic, it must be written entirely inthe handwriting of the testator himself

o Nuncupative (oral) wills are not recognized by the NCCunlike in the Spanish Civil Code

ATTY SEBASTIAN: Wills must be in writing to prevent fraud. Ifnuncupative wills are allowed, it will give people an opportunity todefraud others (there will be as much allegations of oral will as there areclaimants). A written will is an affirmation of the frailness of humanmemory

2. It must be executed in a language ordialect known to the testator – Testator’sknowledge or understanding of the language/dialect used neednot be expressly stated in the body of the will or in theattestation clause

o In the absence of contrary proof, there arises thepresumption that the will was written in a language ordialect known to the testator if the will was executed ina locality where the testator was residing.


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ATTY SEBASTIAN: The law respects the testamentary disposition oftestator. The testator must be able independently ascertain(INDEPENDENT VERIFICATION) whether the will is faithful to thetestator’s intent. If the will is written in a language known by thetestator, there is a presumption that he understands the same. In Art808, if the testator is blind (or illiterate) there is an additionalrequirement that be read twice by the witness and notary public.

CASES:LEE V. TAMBAGO, 544 SCRA 393 (2008)FACTS: Complainant Manuel Lee charged respondent Atty. Tambago withviolation of the Notarial Law and the ethics of the legal profession fornotarizing a spurious will. Lee alleged that his father never executed thecontested will and that The testator presented an expired residencecertificate (the date of execution of the will was June 30, 1965 but thecedula was dated January 5, 1962); the signature of the was forged as itwas not the same as it appeared in the Deed of Donation.

ISSUE: WON the questioned will is spurious

HELD: Yes, the will is spurious. A notarial will, as the contested will in thiscase, is required by law to be subscribed at the end thereof by the testatorhimself. In addition, it should be attested and subscribed by three or morecredible witnesses in the presence of the testator and of one another.

The will in question was attested by only two witnesses, Noynay and Grajo.On this circumstance alone, the will must be considered void. This isconsonance with the rule that acts executed against the provisions ofmandatory or prohibitory laws shall be void, except when the law itselfauthorizes their validity.

The NCC also requires that a will must be acknowledged before a notarypublic by the testator and the witnesses. An acknowledgment is the act ofone who has executed a deed in going before some competent officer orcourt and declaring it to be his act or deed. It involves an extra stepundertaken whereby the signatory actually declares to the notary public thatthe same is his or her own free act and deed. Thus acknowledgment in anotarial will has two-fold purpose: (1) to safeguard the testator’s wisheslong after his demise, and (2) to assure that his estate is administered in themanner that he intends it to be done.

There was the conspicuous absence of a notation of the residencecertificates of the notarial witnesses Noynay and Grajo in theacknowledgment. Similarly, the notation of the testator’s old residencecertificate in the same acknowledgment was a clear breach of the law.These omissions by respondent invalidate the will.

Lee explains the reason for the stringent formalities prescribed by law in themaking of a notarial will. It is disturbing that in this decision, the courtruled that the non-notation of the residence certificates of the notarialwitnesses and/or the use of the testator’s expired residence certificate aresufficient to invalidate a will.

SUROZA V. HONRADO, 110 SCRA 381 (1981)FACTS: Marcelina Suroza supposedly executed a notarial will in July1973 when she was 73 years old. The will, whichw as in English, wasthumbmarked by Marcelina, who was illiterate. Upon her death, the willwhich bequeathed all her estate to a supposed granddaughter waspresented for probate. Opposite to the probate was made by NenitaSuroza, the wife of the alleged adopted son of Marcelina on the groundof preterition of said son, Agapito, and on the ground that the will wasvoid because Marcelina did not appear before any notary public andbecause it is written in English which is not known to Marcelina. Thepresiding judge denied the opposition of Nenita and admitted the will toprobate

ISSUE: WON there was sufficient evidence on record to show that thewill was on its face void

HELD:Yes. Upon perusing the will and noting the it was written inEnglish and was thumbmarked by an obviously illiterate testatrix,respondent judge could have easily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was alanguage “understood and known “to the testatrix. But in its concludingparagraph, it was stated that the will was read to the testatrix and“translated into Filipino language.” This could only mean that the will waswritten in a language not known to the illiterate testatrix, and therefore,the will is void because of the mandatory provision of Art 804 NCC thatevery will must be executed in a language or dialect known to the


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testator. Thus, a will written in English, which was not known to thetestator, is void.

Every will must be in writing and executed in a language or dialect knownto the testator. In this case, the testatrix was proved to be illiterate.However, her alleged notarial will was written in English, which in theopening paragraph of the will, was supposedly a language known to her.The contradiction in the concluding paragraph of the will clearly indicatedthe nullity of the purported will.

Art805. Every will, other than a holographic will, must besubscribed at the end thereof by the testator himself or by thetestator's name written by some other person in his presence, andby his express direction, and attested and subscribed by three ormore credible witnesses in the presence of the testator and of oneanother.

The testator or the person requested by him to write his nameand the instrumental witnesses of the will, shall also sign, asaforesaid, each and every page thereof, except the last, on the leftmargin, and all the pages shall be numbered correlatively inletters placed on the upper part of each page.

The attestation shall state the number of pages used upon whichthe will is written, and the fact that the testator signed the willand every page thereof, or caused some other person to write hisname, under his express direction, in the presence of theinstrumental witnesses, and that the latter witnessed and signedthe will and all the pages thereof in the presence of the testatorand of one another.

If the attestation clause is in a language not known to thewitnesses, it shall be interpreted to them.

REQUISITES FOR NOTARIAL WILLS

1. It must be SUBSCRIBED at the end thereof by the testatorhimself or by the testator’s name written by some otherperson in his presence, and by his express direction

2. It must be ATTESTED and subscribed by 3 or more crediblewitnesses in the presence of the testator and of one another

3. All the pages of the will shall be numbered correlatively inletters placed on the upper part of each page

4. Each and every page of the will, EXCEPT the last, must besigned by the testator and by the instrumental witnesses onthe left MARGIN

5. It must be acknowledged before a notary public by the testatorand the 3 witnesses (Art 806)

6. The will must have an ATTESTATION CLAUSE which shallcontain the following:a. The number of pages used upon which the will is writtenb. 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 ofinstrumental witnesses

c. The fact that the witnesses witnessed and signed the willand all the pages thereof in the presence of the testatorand of one another

INTERPRETATION OF REQUISITESThe object of the solemnities surrounding the execution of wills is toclose the door against bad faith and fraud, to avoid substitution of willsand testaments to guaranty their truth and authenticity.

When an interpretation already given assures such ends, any otherinterpretation, that adds nothing but demands more requisites entirelyunnecessary, useless and frustrative of the testator’s last will, must bedisregarded.

A. SUBSCRIPTION – The manual act by the testator and hisinstrumental witness or affixing their signature to the instrument.

SIGNATURE – A sign, token or emblem and what that shall bedepends upon the custom of the time and place and on the habitand whim of individuals


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PURPOSE:1. Identify the testator ; and2. Authenticate the document.

HOW SUBSCRIBED1. Subscription by Testator – The will that is not signed

by the testator, or by some person in his presence and at hisexpress direction, cannot be allowed to probate.

Signing is making a sign, token or emblem; and what thatshall be depends upon the custom of the time and place, andon the habit or whim of the individual.

Manner of Signing – The use of initials, first name,assumed name or any signature, marks or design intended bythe testator to authenticate renders the will sufficiently signedby him. A complete signature is not essential to the validity ofa will, provided the part of the name written was affixed to theinstrument with intent to execute it as a will.

Signature by Mark – Sufficient even it at the time ofplacing it, the testator knew how to write and is able to do so.It is a valid signature if it is the testator’s usual signature or atleast one of the ways by which he had signed his name before.

Place for signature - The law expressly requires thewill to be subscribed “at the end thereof” by the testator or byhis express direction.

Purpose: to prevent any opportunity for fraud orinterpolations between the testamentary dispositions and thesignature. The position of the signature at the end of the willfurnishes in itself intrinsic evidence of the finality or completionof intent. An instrument in the form of a will cannot beprobated, if it is not signed at the end.

2. Signature by Another – The law allows the will to besigned by another person in the presence of the testator and at

his express direction. In the absence of evidence that thetestator requested the third person to sign the will for theformer, the signing by a third person invalidates the will.

When the evidence does not show that the signature was madeat his express request, the subsequent acknowledgment by thetestator of the will as his own will be sufficient signing, and it willbe presumed to have been made at this direction. The fact that athird person was directed to sign the name of the testator neednot appear in the will itself but may be established by extrinsicevidence. It should appear in the attestation clause which isrequired to state the fact “that the testator signed the will andevery pager hereof or caused some other person to write hisname, under his express direction.

REQUISITES:a. It is the testator’s name that must have been written by

the third person;b. The testator’s name must have been written in his

presence;c. The third person must have affixed the testator’s name at

his EXPRESS direction;d. This fact should be stated in the attestation clause; ande. It should take place in the presence of the instrumental

witnesses.

PLACE OF SIGNATURE (either by the testator or by another):end of the will, otherwise VOID.

END OF WILL1ST VIEW: Refers to the physical end of the writing, or the pointwhich is farthest removed from the beginning in point of space.

2ND VIEW: Refers to the logical end; which is the point where thetestamentary dispositions terminate. The end of the will can bedetermined from the unmistakable sequence which the testatorintended to give to the writing as revealed on the face of theinstrument itself. (Tolentino, p.70).

End of the will means the logical end, not the physical end of thewill. Thus if a will starts on the 1st page, continues on the 3rd page,but is concluded on the 2nd page, the latter is the logical end.


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(Paras, p. 85). The end of the will can be determined from theunmistakable sequence which the testator intended to give to thewriting as revealed on the face of the instrument itself.

PURPOSES:a. To show that the testamentary purpose therein expressed is

completed;b. To prevent any opportunity for fraud or interpolations

between the written matter and signature; andc. The position of the signature is an internal evidence of

finality or completion of intent

ATTY SEBASTIAN: The subscription signifies the (logical end) end ofthe testamentary disposition of the will. Anything after the subscriptionis of dubious origin. If the testator add something after the end, thewhole will is void. If another person added more after the end, the willbecomes spurious. The testator cannot be punished for the act of theother person in tampering the will.

If the testator signs the additional disposition = VOID WILL

If there is no signature after the additional disposition = DISREGARDPROVISION

B. ATTESTATION – The act of three or more credible witnessesof witnessing the execution of the will in the presence of thetestator and of one another in order to see and take note mentallythat such will has been executed in accordance with therequirements prescribed by law (Jurado, p.60). Strictly speaking, itis the act of the witnesses and not that of the testator.

It consists in witnessing the testator’s execution of the willin order to see and take note mentally that those thingsare done which the statute requires for the execution of awill and that the signature of the testator exists as a fact.

To attest a will is to know that it is published as such, andto certify the facts required to constitute an actual andlegal publication.

To attest as witnesses to a will is to observe, perceive,discern and take notice of what is done in executing thewill.

The instrumental witnesses attest not only to the signatureof the testator but also to the proper execution of the will

Purposes of Requiring Witness to Attest and toSubscribe to a Will: (IPA)

a. IDENTIFICATION of the instrument;b. PROTECTION of the testator from fraud and deception ;

andc. The ASCERTAINMENT of the testamentary capacity of the

testator

NOTE: If the required numbers of attesting witness arecompetent, the fact that an additional witness, who wasincompetent also attested to the will, cannot impair the validity.

Placement of Attesting signatureThe attesting signature of the testator –must be found at the logical end of the will; otherwise, the willis void.

The attesting signature of the witnesses –must be found at the end of the attestation clause; otherwise,the will is void.

Subscription – is the signing of the witnesses’ names uponthe same paper for the purpose of identification of such paper asthe will which was executed by the testator.

o To subscribe a paper as a will is only to write on the paperthe names of the witnesses, for the sole purpose ofidentification.

o The witnesses subscribes with his hand.o Subscribing signature may be placed anywhere in each

pages of the will, preferably on the left margin.

ATTESTATON AND SUBSCRIPTION DISTINGUISHEDATTESTATION SUBSCRIPTION

An act of the senses An act of the handMental act Mechanical actPurpose is to render availableproof during probate of will, not

Purpose is identification


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only of the authenticity of the willbut also of its due execution.

Purpose in Requiring Witnesses to attest andsubscribe to the will:

1) The identification of the instrument2) The protection of the testator from fraud and deception so

that he may freely and voluntarily express histestamentary intent

3) The ascertainment of the testamentary capacity of thetestator.

The witnesses need not know the contents of the will, unless thestatute expressly requires it to be red in the hearing of thewitnesses. The will need not be unfolded and submitted to thewitnesses to be examined.

Number of Witnesses – the law requires that the will beattested and subscribed by three or more credible witnesses. It ispresumed that a witness to a will has the qualification prescribedby law, unless the contrary is established.

If the required numbers of attesting witnesses are competent,the fact that an additional witness, who was incompetent, alsoattested the will, cannot impair its validity.

The same witnesses who sign on the left margin of each page ofthe will, presented by the testator to them as his will, must bethe very ones who should sign the attestation clause, inasmuchas they alone can certify the facts to be stated in said clause, forhaving taken a direct part therein.

PUBLICATION OF WILLPublication – is the declaration of the testator to thewitnesses that the instrument is his will.

o Although there is no provision of law requiringpublication, it is necessary that the witnesses shouldknow that they are attesting a will, inasmuch as theattestation clause must state that the testator signed the“will” and that the witnesses themselves witnessed andsigned the “will.”

o The witnesses cannot attest to the signing of aninstrument as a “will”, unless they know that it is one.

SIGNING BY WITNESSESThe statute is satisfied by the witness making a mark, writing hisinitials, or accidentally writing some other name for his own, oreven a description of himself. Any completed mark or design madeby the witness upon the material on which the will is written, withthe intention that it shall, as a symbol, stand for or represent themaker in the capacity of an attesting witness. Our law onlyrequires the witnesses to “sign,” it is submitted that in the samemanner that the testator may sign by mark, so may the witnesses.

ROLE OF WITNESSESThe law requires the presence if three witnesses in the executionof wills for the primary purpose of safeguarding the authenticity ofthe document being signed by the testator. Since the testator whowould testify as to its genuineness and authenticity will be alreadydead by the time the will is presented for probate, there is a needfor witnesses to testify with respect to the compliance with therequirements of law in the execution of the testator’s will.

QUALIFICATIONS OF WITNESSThe law provides certain qualifications and disqualifications withrespect to witnesses such as soundness of mind, 18 yrs. or more,literate, not blind, deaf or dumb (Art. 820); domiciled in thePhilippines (Art. 821) and not previously convicted of falsificationof documents, perjury, or false testimony.

The law expressly requires, as a qualification to be a witness to awill, that a person must be “able to read and write.” But so long asthe witness is able to write, he does not have to sign his full name;he may sign by mark or symbol.

PURPOSE OF QUALIFICATIONS OF WITNESSESThe provisions on qualifications of witnesses are not mandatory.But if the testator willfully fails to comply with them, then the willshall be denied probate. If the testator acted in good faith inselecting his witnesses and either the witnesses recant or theyturn out to be unqualified during probate proceedings, the testatorshould not be penalized.


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They are meant to benefit the testator such that the will may beadmitted for probate provided that it is flawless at to form andthere exists an independent testimony as to the due execution ofthe will.

IN PRESENCE OF EACH OTHERThe witnesses are required to sign in the presence of the testatorand of each other. The purpose of requiring witnesses to sign inthe presence of the testator is to prevent another paper beingsubstituted for the will, fraudulently; and witnesses are required tosign in the presence of each other, so that each may be a witnessof the other and so as to render fabrication of testimony moredifficult.

o The signing of all the witnesses should constitute a singletransaction and the signature of three of them in thepresence of the testator and of each other will besufficient.

o In order that the signing can be considered in the presenceof the testator, it is not sufficient that he is physicallypresent, but he must know what is being done.

o It is not necessary that the testator should actually see thewitnesses subscribe their names to the instrument; if he isin such a position that he might see them sign if he chose,it will be presumed that he did see them sign. The act ofsigning must take place within the testator' range ofvision.

o The test to determine whether the will was attested in hispresence is to inquire whether he was conscious of thepresence of the witnesses and understood what they weredoing when they wrote their names on the will.

o The principles regarding signing in the presence of thetestator apply equally to signing of the witnesses in thepresence of each other.

WHEN TESTATOR BLINDA blind man may know the presence of another through the senseof touch or hearing. The general rule is that, although one mayhave lost his sense of sight, if his mind is unaffected and he issensible of what is being done, when witnesses subscribe his will in

the same room or within reasonable close proximity and within hishearing, they subscribe in his presence.

o In the case of a blind testator, the rules would be the sameas would be applied to him if he had sight or that thewitnesses should occupy a position that he might see themhad he the sense of sight.

o They should be within the cognizance of his remainingsenses, such that he know what is being done.

C. MARGINAL SIGNATUREThe law requires that “the testator or the person requested by him towrite his name and the instrumental witnesses of the will, shall alsosign as aforesaid, each and every page thereof, on the left margin,” inthe presence of one another.

o The law expressly requires also the signatures of thewitnesses. The failure of all the three witnesses to sign the leftmargin of every page even when the testator’s signatureappears thereon is a fatal defect. The rule, however, shouldnot be applied so strictly as to defeat the will of the testator.

o The purpose of signature on the left margin of each and everypage of the will is to avoid the substitution of any of the saidsheets, thereby changing the testator’s disposition.

o In a will consisting of two pages the first of which contains allthe testamentary dispositions and is signed at the bottom bythe testator and three witnesses and the second contains onlythe attestation clause and is signed also at the bottom by thethree witnesses, it is not necessary that both sheets be furthersigned on their margins by the testator and the witnesses.

GENERAL RULE: The testator or the person requested by him towrite his name and the instrumental witnesses must affix theirsignature on the left margin of each and every page of the will.

NOTE: The requirement of affixing marginal signatures isMANDATORY.

EXCEPTIONS:1) In the last page, when the will consists of two or more pages2) When the will consists of two pages, the first which contains

all the testamentary dispositions and is signed at the bottomby the testator and the witnesses and the second contains


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only the attestation clause duly signed at the bottom by thewitnesses (Jurado, pp. 72-73).

The inadvertent failure of witness to affix his signature to onepage of a testament, due to the simultaneous lifting of twopages in the course of signing, is not per se sufficient to justifythe denial of probate (Icasiano v. Icasiano, G.R. No. L-18979June 30, 1964).

The location of the marginal signatures is NOT mandatory incharacter, provided, of course, that such signatures arepresent in every page of the will, except the last. (Ibid) Thewords “left margin” is merely directory.

D. PAGE NUMBERINGThe pages of the will must be numbered correlatively in letters. Thepurpose of this requirement is to afford a means for determiningwhether any sheet or page of the will has been removed. The principalobject of the numeration of pages of the will is to forestall any attemptto suppress or substitute any of the pages thereof.

The law requires that the paging be in letters i.e. “one,” “two” etc.,however, any other form of writing the correlative number of the pageis sufficient, provided the numbering used indicates the succession ofpages and serves to prevent the loss of any of them.

PURPOSE: To forestall any attempt to suppress or substitute any ofthe pages of the will.

NOTES: This is not necessary when the will is written on one sheet

only. The requirement that the pages of the will shall be numbered

is MANDATORY and not the requirement that it should be“numbered correlatively by letters.”

SUBSTANTIAL COMPLIANCE with the statutory requirement issufficient, thus, the pages need not be numbered correlativelyin letters such as “one”, “two” or “three” but may be numberedby mere alphabetical letters or by Arabic Numerals, or by anyform of identification.

E. ATTESTATION CLAUSE

Every ordinary will, or one that is not a holographic will, must have anattestation clause. It has been an essential requirement for the validityof a will, so that a will which entirely lacks the attestation clausecannot be probated.

Attestation Clause – is a memorandum of facts attending theexecution of the will and is that part of the instrument wherein hewitnesses certify that the instrument has been executed before them,and the manner of its execution. It is a certification by the witnessesthat the requirements of the law for the execution of the will havebeen complied with. Since it is a declaration made by the witnessesand not by the testator, it need be signed only by the witnesses andnot by the testator.

The will is subscribed at the end of the will by the testatoralone, while the attesting witnesses sign at the end of theattestation clause.

The attestation clause duly signed is the best evidence as todate of signing.

WHERE WRITTENOrdinary attestation clause is written immediately after thesignature of the testator at the end of the will; and this clause issigned by the instrumental witnesses.CONTENTS OF THE CLAUSE

1. The number of pages used upon which the will is written2. That the testator signed the will and every page thereof, or

caused some other person to write his name, under hisexpress direction and in his presence

3. That the signing by the testator, or by the persondesignated by him, was in the presence of theinstrumental witnesses

4. That the witnesses sign the will and all the pages thereof,in the presence of the testator and of each other.

It is not necessary that the attestation clause must state the names ofthe attesting witnesses.

Number of Pages – the attestation clause must in the first placestate the number of sheets or pages used, upon which the will iswritten.

o The evident purpose is to safeguard the document from thepossibility of interpolation of additional pages or the omission


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of some of the pages actually used. It affords additionalsecurity against the danger that the will may be tamperedwith.

o A failure to state in the attestation clause the number ofsheets or pages used in the will renders such will null and void.

o It is not strictly required, however, that the number of pagesmust appear in the attestation clause only. If such number ofpages appears in the face of the will, such that no proofaliunde is necessary, then there is substantial compliance withthe statute. Where the attestation clause failed to state the number of

pages, it was held sufficient for the acknowledgmentclause to state the number of pages and the will hadactually the number of pages stated.

Signing of Will – the attestation clause is required tostate “the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, underhis express direction, in the presence of the instrumentalwitnesses, and that the latter witnesses and signed the willand all pages thereof in the presence of the testator and ofeach other.”

o The purpose of this requirement that the testator andthe witnesses signed in the presence of each other andthat the fact cannot be proved by evidence aliunde, inview of the well-known unreliability of oral evidence, itis clear that a statement in the attestation clause willafford more satisfactory evidence of the fact to beproved.

o The Legislature intended to exclude the evidencealiunde, tending to establish that the will has beenexecuted and attested in conformity with therequirement of the law. If said statement appears onthe face of the will itself, such that no evidence aliundeis needed, then it is valid.

o Following the rule that the attestation clause should beread in its entirety, the court found that although theattestation clause did not expressly and specificallystat that the witnesses and testator signed all thepages of the will, such intention must be deduced fromthe entire clause. Inferences and implications areadmissible to discover the intent and meaning of the

attestation clause when there is omission in theexpression of such clause.

Reading of Will – Except, when the testator is blind,deaf, or a deaf-mute, the law does not require that the will beread by him or to him. It is indispensible that he should knowits contents at the time of the execution.

o The execution of the will raises a presumption that thetestator was aware of its contents.

o The fact that the will was read to the testator does nothave to be stated in the attestation clause. It isenough that said fact is proved by extrinsic evidenceduring the probate of the will.

DATE OF WILLo In an ordinary will the date is not an essential part. The law

does not require an attested will be dated. An ordinary willwithout a date is valid and an erroneous date will not defeatthe validity of a will.

o A holographic will has to bear a date.

PLACE OF EXECUTIONThe law does not require a will to state the place where it is executed.The failure to state the place, or an error in such statement, does notinvalidate the will.

CASES:REYES V. VDA DE VIDAL, G.R. NO L-2867 (1952)FACTS: The case concerns the admission to probate of a documentpurported to be the last will and testament of Maria Zuñiga Vda. De Pando,who died on October 29, 1945. A petition for the probate of the will of MariaZuñiga Vda. De Pando was filed in the CFI of Manila. Dolores Zuñiga vda.De Vidal, sister of the deceased, filed an opposition. To prove that the willwas signed by the testatrix in accordance with the law, petitioner presentedthe three witnesses who attested to the execution of the will. On the otherhand, the oppositor presented one expert witness, Jose G. Villanueva, whomade a comparative analysis of the signatures appearing in the will inrelation to some genuine signatures of the deceased and reached theconclusion that the hand that wrote the signatures of the deceasedappearing in the will is not the same hand that wrote the genuine signatureshe had examined. The lower court disallowed the will on the ground that the


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signatures of the deceased appearing therein are not genuine, that it wasnot proven that the deceased knew Spanish language in which it waswritten and that the deceased was not of sound mind when she signed thewill.

ISSUES:1. WON the signatures of the deceased appearing in the will are

genuine.2. WON there is evidence to show that the testatrix knew the

language in which the will was written3. WON the testatrix was of sound and disposing mind when she

signed the will.

HELD:1. Yes. The Court finds that the opinion of the expert witness as been

rebutted by another expert witness, Jose C. Espinosa, which the Courtgave more weight and credence. The standards of comparisonused by Espinosa are more reliable than those used byVillanueva. Thus, the standards used by Villanueva in the comparisonare signatures appearing documents and letters written in November10, 1941, April 1940, October 8, 1943, July 16, 1945 and January1945, than the disputed signatures appearing in the will were affixed onOctober 29, 1945. On the other hand, the standards used byEspinosa in making his comparative study bears dates muchcloser to that of the disputed signatures, he examined signaturesaffixed on October 1945, January 2, 1945, January 24, 1945,September 24, 1945 and March 12, 1941, only for emphasis. Thecloseness or proximity of the time in which the standards usedhad been written to that of the suspected signature or documentis very important to bring about an accurate analysis andconclusion. The selection of the proper standards of comparison is ofparamount importance considering the age and state of health of theauthor of the questioned signatures. The passing of tie and theincrease in age may have a decisive influence in the writingcharacteristics of a person. Accordingly, the Court opined that in orderto bring about an accurate comparison and analysis, the standards ofcomparison must be as close as possible in point of time to thesuspected signature. In the case at bar, such was not followed in thestudy made by Villanueva but such was observed by the study madeby Espinosa. Thus the Court gives Espinosa’s opinion more weight andconsideration.

2. Yes. The law requires that the will should be written in the dialect orlanguage known to the testator. Indeed nothing in the testimony of thewitness presented by the petitioner which would indicate that thetestatrix knew and spoke the Spanish language used in the will. Butthis failure alone does not in itself suffice to conclude that therequirement of law has not been complied with. There is enoughevidence on record which supplies the technical omission. It isundisputed fact that the deceased was a meztiza española, wasmarried to a Spaniard and made several trip to Spain. Also, the veryletters submitted as evidence by the oppositor were written in Spanishby the deceased in her own handwriting, having proven by her veryown evidence that the deceased possessed the Spanish language,oppositor cannot be allowed to allege the contrary. The presumptionthat the testator knew the language in which the testament has beenwritten, stands unless the contrary is proved. Lastly, the attestationclause of the will states that the testatrix knew and possessed theSpanish language, though not required to be stated therein only provesthat the instrumental witnesses clearly wanted to make it in record thatthe deceased knew the language in which the will was written.

3. Yes. No direct evidence was shown to reach the conclusion that thedeceased was not of sound and disposing mind when she signed thewill, and the only reason for the said conclusion is that the deceasedsigned the will in somewhat varied form. This conclusion was contraryto what the instrumental witnesses have said on this point, which wereof the impression that the deceased was of sound mind at that time andthat she could still talk and read, only that she was weak. Thesestatements had not been contradicted. While the signatures affixed bythe deceased in the will differ from each other in certain respects, this isonly due to her age and state of health rather than to a defective mentalcondition. The difference or irregularities are common in writings of oldpeople, which are indicative of the age, sickness or weak condition ofthe writer, which is far from showing lack of genuineness.

Every will must be executed in a language known to the testator. Whilethis requirement is mandatory and, as a rule, must be proved during probateproceedings, a failure to introduce evidence in this respect does notnecessarily justify the denial of probate. Under certain conditions,knowledge of the language in which the will was written may be presumed.


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In this case, the probative value of the testimony of the instrumentalwitnesses must be noted, particularly when such testimony is sought to becontroverted by the testimony of an expert witness.

BALONAN V. ABELLANA ET AL, 109 PHIL 359 (1960)FACTS: The will of Anacleta Abellana was sought to be probated. Itwas written in the Spanish language and consists of two typewrittenpages double space.

First page was signed by Juan Bello and under his name appearstypewritten: “Por la testadora Anacleta Abellana, residence certificate A-1167629, Enero 21, 1051, Ciudad de Zamboanga. The signatures of theinstrumental witnesses appear also on the left margin of said instrument.

Second page appears the signature of three instrumental witnesses andat the bottom of which appears the signature of T. de los Santos, andbelow his signature is his designation as the notary public who notarizedsuch testament. The signature of Juan Bello appears on the left handside of the margin, under whose name appears handwritten the followingphrase “Por la testadora Anacleta Abellana.”

ISSUE: Does the signature of Dr. Juan Bello above the typewrittenstatement “Por la Testadora Anacleta Abellana XXX, Ciudad deZamboanga” comply with the requirements of the law prescribing themanner in which a will shall be executed?

HELD: No. 1. The law requires that the testator himself sign the will orif he cannot do so, the testator’s name must be written by some otherperson in his presence and by his express direction.

In the case of Ex Parte Arcenas, “ it is necessary that the testator's namebe written by the person signing in his stead in the place where he couldhave signed if he knew how or was able to do so, and this in thetestator's presence and by his express direction; so that a will signed in amanner different than that prescribed by law shall not be valid and willnot be allowed to be probated.”

Where the testator does not know how or is unable for any reason tosign the will himself, it shall be signed in the following manner: “ JohnDoe by the testator Richard Doe “ or “By the testator, John Doe, RichardDoe.” All this must be written by the witness signing at the request of thetestator.

The important thing is that it clearly appears that the name of thetestatrix was signed at her express direction; it is unimportant whetherthe person who writes the name of the testatrix signs his own or not.

CAB: The name of the testatrix, Anacleta Abellana, does not appearwritten under the will by said Abellana herself or by Dr. Juan Bello.There is therefore, a failure to comply with the express requirement inthe law that the testator must himself sign the will or that his name beaffixed thereto by some other person in his presence and by his expressdirection.The said will of Anacleta Abellana may not be admitted toprobate.

Art 805 NCC prescribes the manner in which the will must be signed by thetestator; i.e., "subscribed at the end thereof by the testator himself, or by thetestator's name written by some other person in his presence and by hisexpress direction. Balonan confirms that this requirement is mandatory, andthat a failure to comply therewith is a fatal defect. It is not important thatthe person to whom the function of writing the testator's name indicates orwrites his own name. But it is imperative that this individual should writethe name of the testator. Balonan gives two alternate ways of complyingwith the statutory requirement.

ATTY SEBASTIAN: The form as provided by the law must beSTRICTLY complied with. The court is not supposed to interpret the lawif the law is clear and unambiguous.

GARCIA V. LACUESTA, 90 PHIL 489 (1951)FACTS: The decedent Antero Mercado executed a will dated January 3,1943 in Ilocano. The said will contains the following attestation clause:

We, the undersigned, by these presents do declare that theforegoing testament of Antero Mercado was signed by himself


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and also by us below his name and of this attestation clauseand that of the left margin on the three pages thereof. Pagethree the continuation of this attestation clause; this will iswritten in Ilocano dialect which is spoken and understood bythe testator, and it bears the corresponding number in letterwhich compose of three pages and all of them were signed inthe presence of the testator and witnesses, and the witnessesin the presence of the testator and all and each and everyoneof us witnesses.

Atty. Javier wrote the name of the decedent followed by “a ruego deltestador” (at the request of the testator) Mercado allegedly wrote a crossimmediately after this name

ISSUE: WON the will should be allowed despite the defect of theattestation clause

HELD: No. The attestation clause is fatally defective for failing tostate that Antero Mercado caused Atty. Florentino Javier to write thetestator's name under his express direction, as required by section618 of the Code of Civil Procedure. The petitioner argues, however, thatthere is no need for such recital because the cross written by the testatorafter his name is sufficient signature and the signature of Atty. FlorentinoJavier is a surplusage. Petitioner's theory is that the cross is as much asignature as a thumb mark, the latter having been held sufficient by thisCourt in the cases of de Gala v Gonzales and Ona, 53 Phil 104; Dolar vDiancin, 55 Phil 479; Payad v Tolentino, 62 Phil 848; Neyra v Neyra, 76Phil 296; and Lopez v Liboro, 81 Phil 429.

The mere sign of a cross is not the same as a thumb mark. The crosscannot and does not have the trustworthiness of a thumb mark.

Where it appears that the testator caused another person to write his namein the will, such fact must be stated in the attestation clause. A failure tomake such a recital is a fatal defect. That the testator affixed the sign of thecross after his name written by another person is not sufficient indicationthat the testator in fact signed the will, absent a clear showing that the signof the cross is the customary signature of the testator, or at the very least,one of the ways by which the testator signed his name.

ATTY SEBASTIAN: The cross creates a doubt as to who signed it. If thecross was the customary signature of the testator, then the will is valid.

NERA V. RIMANDO, 18 PHIL 450 (1911)FACTS: Rimando opposes the admission for probate of a certain will onthe ground that one of the subscribing witnesses therein was present in thesmall room where it was executed at the time when the testator and theother subscribing witnesses attached their signatures. That time he wasoutside, some eight or ten feet away in a large room connecting with thesmaller room by a doorway, across which was hung a curtain which made itimpossible for one in the outside room to see the testator and the othersubscribing witnesses in the act of attaching their signatures to theinstrument.

ISSUE: WON the will was validly witnessed by one of the subscribingwitnesses to make the will valid.

HELD: Yes, the will may be admitted for probate. The true test ofpresence of the testator and the witnesses in the execution of a will is notwhether they actually saw each other sign but whether they might havebeen seen each other sign, had they chosen to do so, considering theirmental and physical condition and position with relation to each other at themoment of inscription of each signature.

The position of the parties with relation to each other at the moment of thesubscription of each signature, must be such that they may see each othersign if they choose to do so. This, of course, does not mean that thetestator and the subscribing witnesses may be held to have executed theinstrument in the presence of each other if it appears that they would nothave been able to see each other sign at that moment, without changingtheir relative positions or existing conditions. At the moment when a witnesssigns the document he was actually and physically present and in suchposition with relation to the other witnesses that he could see everythingthat took place by merely casting his eyes in the proper direction andwithout any physical obstruction to prevent his doing so.

The question whether the testator and the subscribing witnesses to analleged will sign the instrument in the presence of each other does notdepend upon proof of the fact that their eyes were actually cast upon thepaper at the moment of its subscription by each of them, but that at that


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moment existing conditions and their position with relation to each otherwere such that by merely casting the eyes in the proper direction they couldhave seen each other sign.

Art 805 requires that the will must be signed by the testator and thewitnesses in the presence of one another. Nera provides the test of presence.It is not essential that the testator and the witnesses should look at the paperpurporting to be the will of the testator at the time each of them affix theirsignatures. It is sufficient that each of them be physically present at theplace where execution will take place and that they be in such position withrespect to each one, that by merely casting their eyes in the proper direction,they would have been able to see each one affix his signature on the willwithout any physical obstruction.

Is it enough, therefore, that the testator and each of the witnesses be able tosee each of them sign the will without physical obstruction - even if there islack of understanding as to the nature of the document being executed?

ATTY SEBASTIAN: Reasons for the test of presence: (a) To ascertain thatthe testator is of sound mind at the time of the execution of the will; and(b) That the testator is capable of executing the will (there was no force orundue influence)

TEST: If there is no obstruction and the witnesses can still see the signingof the will.

RULE: If the witnesses can see the signing freely, without anyobstruction, had they chosen to do so AND that they understand whatthey saw. This is subject to the limitation of REASONABLENESS

TABOADA V. ROSAL, 118 SCRA 195 (1982)FACTS: A petition for probate was filed with respondent court, thepetitioner attached the alleged last will and testament of the late DoroteaPerez. The will consists of two pages. The first page contains the entiretestamentary dispositions and is signed at the end or bottom of the pageby the testatrix alone and at the left hand margin by 3 instrumentalwitnesses. The second page which contains the attestation clause and

the acknowledgment is signed at the end of the attestation clause by the3 attesting witnesses and at the left hand by the testatrix. Since noopposition was filed after the petitioner’s compliance with therequirement of publication. The trial court denied the probate of the willfor want of a formality in its execution.

ISSUE: Does Art 805 NCC require that the testatrix and all the threeinstrumental and attesting witnesses sign at the end of the will and in thepresence of the will testatrix and of one another?

HELD: Yes. Under Art 805 NCC, the will must be subscribed or signedat the end by the testator himself or by the testator’s name written byanother person in his presence, and by his express direction, andattested and subscribed by 3 or more credible witnesses in the presenceof the testator and of another.

Attestation consists in witnessing the testator’s execution of the will inorder to see and take note mentally that those things are done which thestatute requires for the execution of a will and that the signature of thetestator exists as a fact. Subscription is the signing of the witnesses’name upon the same paper for the purpose of identification of suchpaper as the will which was executed by the testator.

While the perfection in drafting of a will may be desirable, unsubstantialdeparture from the usual forms should be ignored especially where theauthenticity of the will is not assailed. The law is to be liberally construed,the “ underlying and fundamental objective permeating the provisions ofthe law on wills in this project consists in the liberalization of the mannerof their execution with the end in view of the giving the testator morefreedom in expressing his last wishes but with sufficient safeguards andrestrictions to prevent the commission of fraud and the exercise of undueand improper pressure and influence upon the testator. This objective isin accord with the modern tendency in respect to the formalities in theexecution of a will.” In the case at bar, where it not for the defect in theplace of signature of the witnesses, the court would have found thetestimony sufficient to establish the validity of the will. The objective ofthe attestation and of subscription were fully met and satisfied whenwitnesses signed at the left margin of the sole page which contains all


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the testamentary dispositions, especially so when the will was properlyidentified by the subscribing witnesses to be the same will executed bythe testratrix. There was no question of fraud or substitution behind thequestioned order. Also, the failure in the attestation clause to state thenumber of pages used in writing the will would have been fatal, were itnot for the fact that it is discernible from the entire will that it is really andactually composed of only 2 pages duly signed by the testatrix and herinstrumental witnesses.

In Singson v. Florentino: The ratio decidendi of these cases seems to bethat the attestation clause must contain a statement of the number ofsheets or pages composing the will and that if this is missing or isomitted, it will have the effect of invalidating the will if the deficiencycannot be supplied, not by evidence aliunde, but by a consideration orexamination of the will itself.

Art 805 requires that the testator should sign at the end of the will. Thisrequirement does not apply to the subscribing witnesses, who may sign inany other part of each page of the will. The duty of the witnesses tosubscribe is substantially complied with by any such signature. The failureof the attestation clause to indicate the number of pages upon which the willis written is, as a rule, a fatal defect. However, where the notarialacknowledgement does indicate the number of pages of the will, and thesame conforms to an actual count of the pages, the deficiency is cured. Areference to Art 809, in this regard, is appropriate.

ATTY SEBASTIAN: Even if the will is not paginated, the statement ismade by the notary public who has absolutely no interest in the will but toacknowledge the will. The court can rely on extrinsic evidence (i.e., thestatement of the notary public)

ICASIANO V. ICASIANO, 11 SCRA 422 (1964)FACTS: JosefaVillacorta executed her last will and testament induplicate on June 2, 1956 and she died on Sept. 12, 1958. The will was:

a) attested by three instrumental witnesses- Justo Torres Jr., JoseNatividad and VinicioDy

b) acknowledged by the testatrix and the three instrumentalwitnesses on the same date before Atty. Ong, Notary Public

c) the will was actually prepared by Atty. Samson who was presentduring the execution and signing of the decedent’s last will andtestament.

d) pages of the original and duplicate were duly numberede) the attestation clause contains all the facts required by law to be

recited therein and signed by the attesting witnessesf) will is written in the language known to and spoken by the

testatrix (Tagalog)g) will was executed in one single occasion in duplicate copiesh) both original and duplicate copies were duly acknowledged

before the Notary Public on the same date.

The will consisted of five pages and while signed at the end and in everypage, it does not contain the signature of one of the attesting witnesses,Atty. Jose Natividad on page 3 thereof; but the duplicate copy attachedwas signed by the testatrix and the three attesting witnesses in each andevery page.

ISSUE: Does the failure of one of the attesting witnesses to sign on onepage of the original invalidate the will, and hence, denial of the probate?

HELD: No. The inadvertent failure of one of the witnesses to affix hissignature to one page of a testament, due to the simultaneous lifting oftwo pages in the course of signing, is not per se sufficient to justify thedenial of the probate. The impossibility of substituting this page is curedsince the testatrix and two other witnesses signed the defective page,and that the document bears the imprint of the seal of the notary publicbefore whom the testament was ratified by the testatrix and all threewitnesses.

The law should not be strictly and literally interpreted as to penalize thetestatrix on account of the inadvertence of a single witness over whoseconduct she has no control, where the purpose of the law to guaranteethe identity of the testament and its component pages is sufficientlyattained, no intentional or deliberate deviation existence, and theevidence on record attests to the full observance of the statutoryrequisites.

Despite the literal tenor of the law, the Court has held that in other casesthat;


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a. a testament with the only page signed at its foot by the testator andwitnesses but not in the left margin could be probated(Abangan vs.Abangan)

b. despite the requirement of correlative lettering of the pages of awill, the failure to make the first page either by letters or numbers isnot a fatal defect (Lopez vs. Liboro).

These precedents exemplify the Court’s policy to require satisfaction ofthe legal requirements in order to guard against fraud and bad faith, butwithout undue or unnecessary curtailment of the testamentary privilege.

The appellants also argued that since the original of the will is inexistence and available, the duplicate is not entitled to probate. Sincethey opposed the probate of the original because of the lacking signatureon page 3, it is easily discerned that the oppositors-appellants run into adilemma. If the original is defective and invalid, then in the law, there isno other will but the duly signed carbon duplicate, and the same isprobatable. If the original is valid and can be probated, then theobjection to the signed duplicate need not be considered, beingsuperfluous and irrelevant. At any rate, said duplicate, serves to provethat the omission of one signature in the third page of the originaltestament was inadvertent and not intentional.

Art 805 requires that each of the subscribing witnesses should sign eachand every page of the will on the left margin. This requirement is, as a rule,mandatory and a failure to comply therewith is a fatal defect. Icasiano holdsthat the failure of a witness to sign one of the pages of the will throughinadvertence or oversight (there being no bad faith or fraudulent intent) canbe cured by the presentation of a carbon duplicate of the will whichcontains all the required signatures. This ruling is based on the principle ofliberal interpretation of the statutory requirements for the formal validity ofthe will, provided that the need to safeguard the genuineness andauthenticity of the will is not compromised. It is important, for the properunderstanding of this case, to differentiate a duplicate copy of a documentfrom a duplicate-original thereof.

ATTY SEBASTIAN: The copy is a duplicate original. Taboada isexceptional because it did not avoid a will which has a defectiveattestation clause for not stating the number of pages. The solution was

in the attestation clause. In Icasiano, one of the pages was not signed bythe attesting witness but it was cured by the DUPLICATE ORIGINAL.

CAGRO V. CAGRO, 92 PHIL 1032 (1953)FACTS: The testate will of the decedent Vicente Cagro is being opposedon the account of being defective since the attestation clause was notsigned by the attesting witnesses. While the signatures do not appear atthe bottom of the attestation clause, the witnesses signed the same pageon the left-hand margin.

ISSUE: WON the will is fatally defective

HELD: Yes, the will is void. The attestation clause is “a memorandum ofthe facts attending the execution of the will” required by law to be made bythe attesting witnesses, must necessarily bear their signatures. Anunsigned attestation clause cannot be considered as an act of thewitnesses, since the omission of their signatures at the bottom thereofnegates their participation.

The contention of the petitioner-appellee that the signatures of the 3witnesses on the left-hand margin conform to the requirements of the lawand may be deemed as their signatures to the attestation clause isuntenable. This is because the said signatures are in compliance with themandate that the will be signed on the left-hand margin of all its pages. If anattestation clause is not signed by the 3 witnesses at the bottom thereof, itwould be easy to add such clause to a will on a subsequent occasion andin the absence of the testator and any or all of the witnesses.

The attestation clause must be signed by the witnesses at the bottomthereof. If the signatures of the attesting witnesses are affixed on the leftmargin, or in any other place, the attestation clause would be fatallydefective, resulting in the nullity of the will. The opinion of the majority ofthe Court in this case is diametrically opposed to its opinion in the case ofAbangan v Abangan. The technical difference between the factual bases ofthe two cases should be examined. In any event, Cagro is not a unanimousdecision.


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ATTY SEBASTIAN: The witnesses signs in two capacities: as to attestand to subscribe. Cagro is still controlling.

LOPEZ V. LIBORO, 81 PHIL 429 (1948)FACTS: The will in question comprises 2 pages, each of which is writtenon one side of a separate sheet. The first sheet is not paged either inletters or in Arabic numerals. This, the appellant believes, is a fataldefect. The testator affixed his thumb mark to the instrument instead ofsigning his name.

The appellant impugns the will for its silence on the testators’understanding of the language used in the testament.

ISSUE: WON the opposition of the probate of the will of the last will andtestament of Don Lopez on the above grounds will be sustained

HELD: No, the purpose of the law in prescribing the paging of wills is toguard against fraud, and to afford means of preventing the substitution orof detecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.476). On the present case, the omission to put a page number on thefirst sheet, if that be necessary, is supplied by other form of identificationmore trustworthy than the conventional numeral words or characters.The unnumbered page is clearly identified as the first page by theinternal sense of its contents considered in relation to the contents of thesecond page.

The testator affixed his thumb mark to the instrument instead of signinghis name. The testator chose the use of mark as the means ofauthenticating his wills. It was a matter of taste or preference. Both waysare good. A statute requiring a will to be “signed” is satisfied – is thesignature is made by the testators’ mark.

Art 805 requires that every page of the will be numbered correlatively inletters. The failure to affix the page number on the first page is notnecessarily a fatal defect. The pagination requirement admits of a liberalinterpretation, particularly if the purpose of the law has been satisfied.In addition, the will need not state that the language used therein is knownto the testator. Knowledge by the testator of the language used in the will

may be proved by extrinsic evidence, and, may, under certain conditions,even be inferred by the probate court.

SAMANIEGO-CELADA V. ABENA, 556 SCRA 569 (2008)FACTS: Petitioner Paz Samaniego-Celada was the first cousin ofdecedent Margarita S. Mayores while respondent was the decedent’slifelong companion since 1929. Margarita died single and without anyascending or descending heirs as her parents, grandparents and siblingspredeceased her. She was survived by her first cousins.

Before her death, Margarita executed a Last Will and Testament whereshe bequeathed her real and personal properties to respondents anddesignated one of the respondent as sole executor of her will.

Petitioner filed a petition for letter of administration of the estate ofMargarita before the RTC of Makati. RTC rendered a decision declaringthe last will and testament of Margarita probated and respondent as theexecutor of the will. Petitioner appealed and CA affirmed in toto the RTCruling.

ISSUE: WON the will is invalid for failure to comply with the formalitiesrequired by law

HELD: The Court upheld the findings of the RTC, applying the doctrineof liberal interpretation.

The will is fatally defective for the reason that its attestation clause statesthat the will is composed of 3 pages while in truth and in fact, the willconsists of 2 pages only because the attestation clause is not part of thenotarial will. It is true that the attestation clause is not part of the will, thecourt opined that error in pages of the will as stated in the attestationclause is not material to invalidate the will. The error must have beenbrought about by the honest belief that the will is the whole instrumentconsisting of 3 pages inclusive of the attestation clause and theacknowledgment.

Since the petitioners are not compulsory heirs of the decedent and asthe decedent validly disposed of her properties in a will duly executedand probated, petitioner has no legal right to claim any part of thedecedent’s estate.


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Samaniego holds that an error in the number of pages of the will as stated inthe attestation clause is not material to invalidate the will.

ATTY SEBASTIAN: Art 809 was applied in this case. A reading of thecase shows that there is only 2 pages in the will. The error could be amistake of fact or typographical error.TESTATE ESTATE OF ALIPIO ABADA V. ABAJA, 450 SCRA264 (2005)FACTS: Abada died in May 1940 and his wife, Paula Toray (Toray)died in Sept. 43. Both died without legitimate children. Alipio Abaja(Alipio) filed with CFI-Negros Occidental a petition for the probate of theLast Will and Testament of Abada, allegedly naming his testamentaryheirs, his natural children, Eulogio Abaja (Eulogio) and Rosario Cordova.Alipio is the son of Eulogio.

Nicanor Caponong (Caponong) opposed the petition on the ground thatAbada left no will when he died. Caponong further alleged that the will, ifAbada really executed it, should be disallowed since it was not executedand attested as required by law. Joining him in the opposition were thenephews, nieces and grandchildren of Abada and Toray.

ISSUE: WON the will of Abada has an attestation clause as requiredby law

HELD: Abada executed his will on 4 June 1932. The laws in force atthat time are the Civil Code of 1889 or the Old Civil Code, and Act No.190 or the Code of Civil Procedure which governed the execution of willsbefore the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in thewill of Abada. Section 618 of the Code of Civil Procedure, as amendedby Act No. 2645, governs the form of the attestation clause of Abada’swill.

The will is not written in a language or dialect known to the testator,which is in Spanish. Alipio testified that Abada used to gather Spanishspeaking people in their place. In these gatherings, Abada and hiscompanion would talk in the Spanish language. This sufficiently provesthat Abada knows the Spanish language.

That the will has no attestation clause. It fails to state the number ofpages in which the will was written.

The will stated that “in the left margin of each and every one of the twopages consisting of the same” shows that the will consists of two pages.The pages are number correlatively with the letters “One” and “Two.”The attestation clause fails to state expressly that the testator signed thewill and its every page in the presence of the three witnesses.Theattestation clause clearly states that Abada signed the will and its everypage in the presence of the witnesses.

The Court agrees with the appellate court in applying the rule onsubstantial compliance in determining the number of witnesses. Whilethe attestation clause does not state the number of witnesses, a closeinspection of the will shows that three witnesses signed it.Attestation clause does not expressly state the circumstances that thewitnesses witnessed and signed the will and all its pages in the presenceof the testator and each other.

The last part of the attestation clause states as translated to Englishas “in its witness, every one of us also signed in our presence and of thetestator.” This clearly shows that the attesting witnesses witnessed thesigning of the will of the testator, and that each witness signed the will inthe presence of one another and of the testator.

AZUELA V. CA, 487 SCRA 119 (2006)FACTS: Petitioner Azuela, who is the cousin of the decedent, is seeking toadmit to probate the notarial will of Eugenia Igsolo. The will consisted of 2pages and written in Filipino. In the will, the 3 attesting witnesses(Agrava, Leano and Estrera) affixed their signature on the left-handmargin of both pages of the will but not at the bottom of theattestation clause. The will made reference only to 2 heirs, legatees anddevises of the decedent: Petitioner Azuela and Irene Igsolo (residingabroad)Private respondent Castillo opposed the probate because:

a. The will is a forgery since there were 12 legitimate heirs of thedecedent and that the true purpose of the will was to be used as adefense in several ejectment cases filed against petitioner Azuela

b. The will was not executed and attested to in accordance with thelaw i.e., the decedent’s signature does not appear on the second


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page and the will was not properly acknowledged

RTC Manila admitted the will to probate, taking into account the testimoniesof the attesting witnesses. RTC held that:

a. The subtitle at the end of the will (Patunay ng mga saksi)suffices as an acknowledgment and attestation clause

b. The signing of the attesting witnesses on the left-margin of thesecond page containing the attestation clause substantiallysatisfied the purpose and attestation of the will

c. Regarding pagination: Since the will is only composed of twopages (i.e., page 1 contains the entire testamentary dispositionand page 2 contains the last portion of the attestation clause),the defects are not of a serious nature as to invalidate the will

d. RTC also noted that the modern tendency in respect to theformalities in the execution of a will, i.e., the liberalizationof the interpretation of the law on the formal requirementsof a will with the end in view of giving the testator morefreedom in expressing his last wishes, rebutted theoppositor’s arguments that the will was not properlyexecuted and attested to in accordance with the law

ISSUE: WON the will was defective in form

HELD: Yes, the will in question did not comply with the formal requisitesfor a valid will and as such, it is void.

As admitted by petitioner himself, the attestation clause fails to state thenumber of pages of the will. There was an incomplete attempt to complywith this requisite, as space having been allotted for the insertion of thenumber of pages in the attestation clause. Yet the blank was never filled in;hence, the requisite was left not complied with. In Uy Coque, the SC heldthat “The purpose of requiring the number of sheets to be stated in theattestation clause is obvious: the document might easily be so preparedthat the removal of a sheet would completely change the testamentarydispositions of the will and in the absence of a statement of the totalnumber of sheets such removal might be effected by taking out the sheetand changing the numbers at the top of the following sheets or pages.

In the case of In Re Will of Andrada, the SC held that the failure to state thenumber of pages in the attestation clause alone is a fatal defect in thevalidity of a will.

Art 809 should not deviate from the need to comply with the formalrequirements as enumerated under Art 805. Whatever the inclinations ofthe members of the Code Commission in incorporating Art 805, the factremains that they saw fit to prescribe substantially the same formalrequisites as enumerated in Section 618 of the Code of CivilProcedure, convinced that these remained effective safeguardsagainst the forgery or intercalation of notarial wills. Compliance withthese requirements, however, picayune in impression, affords thepublic a high degree of comfort that the testator himself or herself haddecided to convey property post mortem in the manner established inthe will.

It must be noted that the will contained more critical defects that shouldnecessarily lead to its rejection: The attestation clause was not signedby the instrumental witnesses. While the signatures of the instrumentalwitnesses appear on the left-hand margin of the will, they do not appear atthe bottom of the attestation clause which after all consists of theiraverments before the notary public.

CAB: The signatures on the left-hand corner of every page signify, amongothers, that the witnesses are aware that the page they are signing formspart of the will. On the other hand, the signatures to the attestation clauseestablish that the witnesses are referring to the statements contained in theattestation clause itself. Indeed, the attestation clause is separate and apartfrom the disposition of the will. An unsigned attestation clause results in anunattested will.

The requirement under Article 806 that “every will must be acknowledgedbefore a notary public by the testator and the witnesses has also not beencomplied with.

CAB: Instead of an acknowledgment, the notary public, Petronio Y.Bautista, wrote “Nilagdaan ko at ninotario ko ngayon 10 ng Hunyo 10 (sic),1981 dito sa Lungsod ng Maynila.” These words be cannot construed asan acknowledgment. An acknowledgment is the act of one who hasexecuted a deed in going before some competent officer or court anddeclaring it to be his act or deed. It involves an extra step undertakenwhereby by the signor actually declares to the notary that the executor of adocument has attested to the notary that the same is his/her own free actand deed.


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The same might be considered a jurat, even though it does not resemblethe usual language thereof. A jurat is that part of an affidavit where thenotary certifies that before him/her, the document was subscribed andsworn to by the executor.

The express requirement in Article 806 is that the will be “acknowledged”and not merely subscribed and sworn to. The will does not present anytextual proof, much less one under oath, that the decedent and theinstrumental witnesses executed or signed the will as their own free act ordeed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond thefree consent of the testator.Of note is the decision of the RTC which admitted the will to probatenotwithstanding the defects thereof (no signature of witnesses at the bottomof the attestation clause, no signature of the testator on the left margin of thesecond page of the will, the failure of the attestation clause to state thenumber of pages used upon which the will was written, and the lack ofacknowledgment). As to the missing signature of the witnesses at thebottom of the attestation clause, the RTC ignored the ruling in Cagro vCagro (although arguably the ruling in Cagro has a very strong dissentingopinion). As regards the missing number of pages in the attestation clausethe RTC invoked the doctrine of liberal interpretation but convenientlyignored the conditions laid down in the case of Rodelas. As regards themissing acknowledgement, the RTC ignored the ruling in Carcia vGatchalian. It can well be said that the decision of the RTC is “one for thebooks.”

This case also highlights the fundamental difference between a jurat and anacknowledgment, and based on the distinction, the Court held that a notarialwill that is not acknowledged before a notary public is void, even if it wassworn to before a notary public.

VDA DE RAMOS V. CA, 81 SCRA 393FACTS: The attestation clause of the will stated that the testatrix signedthe will in the presence of the instrumental witnesses. However, duringthe probate proceedings, the two surviving witnesses claimed that thetestatrix’s signature was already on the document when they signed thewill. The notary public, however, testified that he was present during the

execution of the will and that the same was signed in the manner setforth in the attestation clause.

ISSUE:WON the will complied with the provisions of Art 805 despite thenegative testimony of the attesting witnesses

HELD: Yes. The presumption of regularity cannot be defeated bynegative testimony. The attestation clause, once signed, affirmscompliance with the rules and execution contradicts the presence ofundue influence. The negative testimony of the two witnesses do notenjoy equal status with the positive assertion and the convincingappearance in the will itself. In the attestation clause, the witnesses notonly attest to the signature of the testatrix but also to the properexecution of the will. Their signature implicitly certifies the validity of thewill and the truth of the facts stated therein.

The law requires at least three attesting witnesses to a notarial will. Thewitnesses shall be called upon, during probate, to recount the incidentswhich occurred thereat. To a large extent, admission to or denial of probatedepends on the testimony of these instrumental witnesses. However, ifcontrary to expectation, these witnesses, or some of them, should testifyagainst the formal validity of the will, the proponent of the will may useother evidence, direct or circumstantial, to establish compliance with theformalities prescribed by law. A will is not necessarily void because thewitnesses declared against its validity.

Art806. Every will must be acknowledged before a notarypublic by the testator and the witnesses. The notary public shallnot be required to retain a copy of the will, or file another withthe Office of the Clerk of Court.

Despite its reference to “every will,” Art 806 applies only to ordinary ornotarial wills. It has no application to holographic wills because thesame does not have to be witnessed.

Failure to affix a documentary stamp on a will is NOT a fatal defect asthe probate court can require the proponent to affix the requireddocumentary stamp to the notarial acknowledgment.


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WHEN ACKNOWLEDGMENT MADEThere is no provision in NCC that the acknowledgment before thenotary public and the signing of the will by the testator and thewitnesses should be a single transaction.

ACKNOWLEDGMENT AND JURAT DISTINGUISHEDJURAT ACKNOWLEDGMENT

Certifies that the document wassigned and subscribed by thesignatory in his presence

Declares before the notary that thesignatories executed andsubscribed to the document in theirown free or voluntary actUnder oath and under pain ofperjury

ACKNOWLEDGMENT BEFORE A NOTARYA notary cannot be a witness and a notary public before whom the willis acknowledged at the same time. The function of the notary is toguard against illegal arrangements would be defeated if he becomesone of the witnesses as he would then be interested in validating hisown acts. The will must be denied probate for failing to comply withthe mandatory requisites of acknowledgment if it was acknowledgedbefore the notary only by the testator and not by the witnesses.

CASES:GARCIA V. GATCALIAN,21 SCRA 1056 (1967)FACTS: In 1967, Gregorio Gatchalian, a widower, died in Pasig,leaving no forced heirs. On the same year, appellant filed a petition withthe CFI of Rizal for the probate of the alleged will wherein he wasinstituted as sole heir. Gatchalian and the other appellees opposed thepetition on the ground that the will was procured by fraud; that thedeceased did not intend the instrument signed by him to be as his will;and that the deceased was physically and mentally incapable of makinga will at the time of the alleged execution of the will.

The lower court rendered its decision finding the document to beauthentic last will of the deceased but disallowing it for failure to complywith the mandatory requirement of Art 806 NCC which provides that thewill must be acknowledged before a notary public by the testator and thewitnesses. An examination of the document shows that it wasacknowledged before a notary public by the testator but not by theinstrumental witnesses.

ISSUE: WON the will is invalid for failure to comply with the formalitiesrequired by law

HELD: The compliance with the requirement provided in Art. 806 hasthe effect that the will must be acknowledged before a notary public bythe testator and also by the witnesses is indispensable for its invalidity.As the document in consideration does not comply with this requirement,thus the same may not be probated.

CRUZ V. VILLASOR, 54 SCRA 31 (1973)FACTS: The only question presented for determination, on which thedecision of this case hinges, is whether the supposed Last Will andTestament of Valente Z. Cruz (Cruz) was executed in accordance withArt 805 and 806.

Of the three instrumental witnesses on the supposed Last Will andTestament of Cruz, one of them, Atty. Angel Teves (Teves), acted alsoas the notary public before whom the will was supposed to have beenacknowledged. The petitioner argues that as a result thereof, the will hasonly two witnesses who appeared before the notary public toacknowledge the will.

The respondent, Lugay, who is supposed to execute the will, stated thatthere was substantial compliance with the legal requirement of threeattesting witnesses, even if one of them acted as a notary public basedon American jurisprudence.

ISSUE: Can the notary public be considered as the third attestingwitness?

HELD: No. The probate of the Last will and Testament of Cruz isdeclared not valid and set aside. The notary public cannot acknowledgebefore himself his having signed the will. If the third witness is the notarypublic himself, he would have to avow, assent or admit as his havingsigned the will in front of himself. This cannot be done because hecannot split his personality into two so that one will appear before theother to acknowledge his participation in the making of the will.

The function of a notary public is to guard against any illegal or immoralarrangements. That would be defeated if he was also the attesting


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witness. He would be interested in sustaining the validity of the will, as itdirectly involves himself and the validity of his own act. It would placehim in an inconsistent position and the very purpose of theacknowledgment, which is to minimize fraud.American jurisprudence cannot be used here for we are in Philippinejurisdiction. In allowing the notary public to act as third witness, or one ofthe attesting and acknowledging witness, would have the effect of onlytwo attesting witnesses to the will which is violative of Art 805 requiring atleast 3 witnesses and Art 806 which requires the testator and therequired number of witnesses to appear before the notary public toacknowledge the will.

Article 806 requires that the testator and the three witnesses mustacknowledge the will before a notary public. Cruz involves a situationwhere one of the three witnesses to the will was the same person whonotarized the same. By reason thereof, the Supreme Court disallowed thewill for the reasons stated hereunder. While the proponent of the will reliedon American decisions which permit a notary public to be a witness to aninstrument notarized by him, the Supreme Court rejected the application ofthe foregoing decisions to the case at bar. It would seem that the strongestargument against the proponent is the fact that the witnesses themselves arerequired by law to acknowledge the document. For which reason, it isobvious that a witness cannot simultaneously be the notary public beforewhom the will shall be acknowledged. A different result may be expected ifthe witnesses were not required by law to acknowledge the document.

ATTY SEBASTIAN: A notary public cannot be an attesting witnessbecause in acknowledging a will, he cannot perform a self-serving act. Ifthe notary public is present along with the 3 attesting witnesses, he canbe an attesting witness. While he may be disqualified as a witness, hecannot be disqualified as a notary public.

GUERRERO V. BIHIS, 521 SCRA 394 (2007)FACTS: In February 1994, Felisa de Buenaventura died, leaving twoheirs: petitioner Bella Guerrero and respondent Resurreccion Bihis.Petitioner filed a petition for the probate of the will. Respondent Bihisopposed her elder sister’s petition.

The trial court denied the probate of the will, citing that Art 806 NCC wasnot complied with because the notary public (Atty. Directo) had nojurisdiction where the will was executed by the decedent (the will wasexecuted in Quezon city while Directo was a notary public for Caloocan)

ISSUE: Did the will “acknowledged” by the testator and the instrumentalwitnesses before a notary public acting outside the place of his commissionsatisfy the requirement under Art 806 NCC?

HELD: No. One of the formalities required by law in connection with theexecution of a notarial will is that it must be acknowledged before anotary public by the testator and the witnesses. This formal requirementis one of the indispensable requisites for the validity of a will. In otherwords, a notarial will that is not acknowledged before a notary public bythe testator and the instrumental witnesses is void and cannot beaccepted for probate.

An acknowledgment is the act of one who has executed a deed in goingbefore some competent officer and declaring it to be his act or deed. Inthe case of a notarial will, that competent officer is the notary public.

PURPOSE OF ACKNOWLEDGMENT: The acknowledgment of a notarialwill coerces the testator and the instrumental witnesses to declare beforean officer of the law, the notary public, that they executed and subscribedto the will as their own free act or deed. Such declaration is under oathand under pain of perjury, thus paving the way for the criminalprosecution of persons who participate in the execution of spurious wills,or those executed without the free consent of the testator. It alsoprovides a further degree of assurance that the testator is of a certainmindset in making the testamentary dispositions to the persons institutedas heirs or designated as devisees or legatees in the will.

Acknowledgment can only be made before a competent officer, that is, alawyer duly commissioned as a notary public.

A notary public is authorized to perform notarial acts, including the takingof acknowledgments, within that territorial jurisdiction only. Outside theplace of his commission, he is bereft of power to perform any notarialact; he is not a notary public. Any notarial act outside the limits of hisjurisdiction has no force and effect.


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CAB: Since Atty. Directo was not a commissioned notary public for andin Quezon City, he lacked the authority to take the acknowledgment ofthe testatrix and the instrumental witnesses. In the same vein, thetestatrix and her witnesses could not have validly acknowledged the willbefore him. Thus, Felisa Tamio de Buenaventura’s last will andtestament was, in effect, not acknowledged as required by law.

Guerrero defines “acknowledgment” and the competent officer beforewhom it should be made in the execution of a notarial will. The casefurther explains the reason for the requirement of Art 806 and thefunction of the acknowledgment. Guerrero holds that a notarial willacknowledged before a public notary outside of the latter’s territorialjurisdiction is void. Effectively, the will is not acknowledged by Art 806.

ATTY SEBASTIAN: Under the Code of Civil Procedure (prior to ROC), alaw graduate can apply to become a notary public

GABUCAN V. MANTA, 95 SCRA 752 (1980)FACTS: The case is about the dismissal of a petition for the probate ofthe notarial will on the ground that it does not bear a 35 centavodocumentary stamp.

ISSUE: WON the requisite documentary stamp not affixed to thenotarial acknowledgement in the will a ground for the dismissal of theproceeding

HELD: No. The procedure may be implied from the provision of Section238 that the non-admissibility of the document, which does not bear therequisite documentary stamp, subsists only “until the requisite stampshall have been affixed thereto and canceled”.

It was held that the documentary stamp may be affixed at the time thetaxable document is presented in evidence (del Castillo vs. Madrilena, 49Phil. 749. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, thatthe lack of documentary stamp on a document does not invalidate suchdocument. See Cia Gen. de Tobaccos vs. Jeanjaquet, 12 Phil. 195 andDelgado and Figueroa vs. Amenabar, 16 Phil. 403).

Art. 807. If the testator be deaf, or a deaf-mute, he mustpersonally read the will, if able to do so; otherwise, he shalldesignate two persons to read it and communicate to him, insome practicable manner, the contents thereof.Art. 808. If the testator is blind, the will shall be read to himtwice; once, by one of the subscribing witnesses, and again, bythe notary public before whom the will is acknowledged.

SPECIAL FORMAL REQUIREMENTSArt 807 and 808 are meant to make sure that the provisions of the willare known to a testator who is blind, deaf or deaf mute. Failure tocomply with these provisions invalidate the will of such persons.

RATIO: The disabilities are impairments specific organs ofperception; they would be at a disadvantage. They cannot perceivethe nuances of his environment at the time of the execution of the will.These arts are to compensate for the impairments of their sensoryperception since they cannot protect themselves in the same way thatthe able can.

ADDITIONAL REQUIREMENTS FOR SPECIAL CASESA. DEAF OR DEAF-MUTE TESTATOR (Art 807):

1. Personal reading of the will if able to do so; or2. If not possible, designation of two persons to read the will

and communicate to him, in some practicable manner, thecontents thereof.

In a case where the testator did not read the final draft of the will, butthe lawyer who drafted the document read the same aloud in thepresence of the testator, three witnesses and notary public, the Courtheld that the formal imperfections should be brushed aside when thespirit behind the law was served though the letter was not (Alvarado v.Gaviola, GR No. 74695 September 14, 1993).

ATTY SEBASTIAN: The testator is the only one who can choose whomhe can communicate with him; if also illiterate = can be doneprofessionally; they must be able to communicate to the illiterate testator

B. BLIND TESTATOR (Art 808)Double-reading requirement:


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a. First, by one of the subscribing witnesses (trusted by thetestator so by the time the will is probated he can providea truthful testimony); and

b. Second, by the notary public before whom the will isacknowledged (officer of the court; disinterested party)

Art 808 applies not only to blind testator but also those who, for onereason or another are incapable of reading their wills (e.g. poor,defective or blurred vision). A person need not be clinically blind forthe application of Art 808; mere inability to read is equivalent toblindness. A testator shall be deemed blind if he can only see at adistance.

CASES:GARCIA V. VASQUEZ, 32 SCRA 490 (1970)FACTS: Gliceria del Rosario (Gliceria) died unmarried in, 1965, leavingno descendants, ascendants, brother or sister. At the time of her death,she was 90 yrs old and has an estate consisting mostly of realproperties. Consuelo S. Gonzales vda. De Precilla, a niece of thedeceased, petition the CFI-Manila for probate of the alleged will ofGliceria A. del Rosario, executed on December 29, 1960.

The records shows that during the lifetime of Gliceria, she executed twowills: one on June 9, 1956 consisting of 12 pages and written in Spanish,a language that she knew and spoke, witnessed by 3 witnesses andacknowledged before a notary public; and other dated December 29,1960, consisting of 1 page and written in Tagalog, witnessed by 3witnesses and acknowledged before a notary public.

Called to testify on the due execution of the 1960 will were instrumentalwitnesses Decena, Lopez and Rosales uniformly declared that they wereindividually requested by Alfonso Precilla (late husband of petitionerspecial administratrix). They testified that the testatrix read the willsilently before signing it.

Oppositors-appellants challenged the correctness of the probate court’sruling maintaining that on December 29, 1960, the eyesight of Gliceriawas so poor and defective that she could not have read the provisions ofthe will.

Based on Dr. Jesus V. Tamesis, ophthalmologist of Gliceria, when sheconsulted on March 11, 1960, the former found her eye to have cataractand that it was “above normal pressure” denoting a possible glaucoma, adisease that leads to blindness. Dr, Tamesis operated on the left eye ofthe decedent at Lourdes Hospital on August 8 1960 and as of August 23,1960, in spite of the glasses her vision was only “ counting fingers” at fivefeet.

ISSUE: WON the probate court erred in allowing the probate of the1960 will

HELD: Yes. The Court was convinced that the supposed testatrix couldnot have physically read or understood the alleged testament and that itsadmission to probate was erroneous and should be reversed.

A testator shall be deemed blind if he can only see at a distance. Aperson need not be clinically blind for the application of Art 808; mereinability to read is equivalent to blindness. In this case, the SupremeCourt held that the will was not validly executed despite testimonies andpieces of evidence that testatrix was capable of reading the will becauseshe can arrange flowers, greet friends, perform kitchen tasks and writechecks.

The rationale behind the requirement of reading the will to the testator ifhe is blind or incapable of reading the will himself (as when he isilliterate), is to make the provisions thereof known to him, so that he maybe able to object if they are not in accordance with his wishes. That theaim of the law is to ensure that the dispositions of the will are properlycommunicated to and understood by the handicapped testator, thusmaking them truly reflective of his desire, is evidenced by therequirement that the will should be read to the latter, not only once buttwice, by two different persons, and that the witnesses have to act withinthe range of his (the testator’s) other senses.

In the case at bar, there was nothing in the records to show that theabove requisite have been complied with.

Art 808 NCC prescribes an additional formality in the case of a blindtestator. Garcia holds that if a testator’s vision does not permit him to


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read the document, even if he can see distant objects, the testator isdeemed blind for the purpose of requiring the observance of theadditional formality prescribed in Art 808.

Justice Reyes opined that if the testator is blind or incapable of readingthe will (as when he is illiterate) the requirement of reading must becomplied with in order to enable the testator to object to provisionswhich are not in accordance with his wishes. While the opinion seemsreasonable, Art 808 makes specific reference to a blind person. Anilliterate person with good vision was not mentioned in the law. There isserious doubt, therefore, if the provision of Art 808 is applicable to anilliterate testator.

ATTY SEBASTIAN: The test of blindness is not clinical blindness butwhether the testator can read the contents of the will independently

ALVARADO V. GAVIOLA JR., 226 SCRA 347 (1993)FACTS: In 1977, 79 year old Brigido Alvarado (Brigido) executed anotarial will called Huling Habilin where he disinherited an illegitimateson, petitioner, Cesar Alvarado( Cesar). He likewise, revoked in thisdocument a previously executed holographic will. As testified to by thethree instrumental witnesses, the notary public and by respondent, Atty.Rino, who were all present at the execution, the testator did not read thefinal draft of the will himself. Instead, Atty. Rino, as the lawyer whodrafted the document, read the same aloud in Brigido’s presence, thethree instrumental witnesses and the notary public. The latter fourfollowed the reading from their own furnished copies of the will.

On Dec. 29, 1977, a codicil entitled Kasulatanng Pagbabago sa IlangPagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre5, 1977 ni Brigido Alvarado” was executed changing some dispositions inthe will to generate cash for Brigido’s eye operation. But thedisinheritance clause remained. The testator did not personally read thefinal draft of the codicil. It was instead Atty. Dino who read it aloud in thepresence of the Brigido, the three instrumental witnesses and the notarypublic, all following the reading using their own copies.

When a petition for the probate was filed upon the testator’s death,Cesar opposed on the several grounds but the main thrust was that thedeceased was blind within the meaning of the law at the time his

“HulingHabilin” and the codicil attached were executed and that thereading required by Art. 808 of the Civil Code was not complied with.

ISSUE: Was Brigido Alvarado blind for purpose of Art. 808 at the timehis “HulingHabilin” and its codicil were executed? If so, was the double-reading requirement of said article complied with?HELD: Although he was not totally blind, the Court stated the doublereadingrequirement has substantially been complied with. AlthoughBrigido was not totally blind at the time the last will and codicil wereexecuted, his vision on both eyes was only of “counting fingers at three(3) feet) by reason of the glaucoma he had been suffering for severalyears. As testified by Dr. Roasa, he could no longer read either printed orhandwritten matters when he was consulted, which was Dec. 14, 1977.

The rationale behind the requirement of reading the will to the testator ifhe is blind or incapable of reading the will himself (as when he isilliterate), is to make the provisions thereof known to him, so that he maybe able to object if they are not in accordance with his wishes.

Clear from the foregoing is that Art 808 applies not only to blind testatorsbut also to those who, for one reason or another, are "incapable ofreading the(ir) will(s)." Since Brigido Alvarado was incapable of readingthe final drafts of his will and codicil on the separate occasions of theirexecution due to his "poor," "defective," or "blurred" vision, there can beno other course for us but to conclude that Brigido Alvarado comeswithin the scope of the term "blind" as it is used in Art. 808. Unless thecontents were read to him, he had no way of ascertaining whether or notthe lawyer who drafted the will and codicil did so in conformity with hisinstructions. Hence, to consider his will as validly executed and entitledto probate, it is essential that we ascertain whether Art. 808 had beencomplied with.

This is the second instance where the Court had occasion to discuss themeaning of the term "blind testator." Alvarado confirms that a personunable to read the draft of his will, either because of poor, defective orblurred eyesight must be considered blind for the purpose of compliancewith the additional formalities prescribed in Article 808. In addition, theCourt confirms that inability to read by reason of illiteracy is includedwithin the broader concept of "blindness" for the purpose of the samearticle. However, Alvarado makes a landmark exception to the rule of strict


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compliance when it affirmed the probate order despite non-compliance withthe double reading requirement. How this decision will affect the courtsinterpretation of the other formal requirements of the law remains to beseen.

ATTY SEBASTIAN: definition of substantial compliance in TolentinoVol. IV. Neither of the two requirements was complied with, so there isNO substantial compliance to speak of. Possible reason why Bellosilloallowed the will? Because the will disinherited a illegitimate child and ifthe will is allowed for probate, the disinherited child will inherit. Seegrounds for disinheritance provided in Art 919

Art809. In the absence of bad faith, forgery, or fraud, or undueand improper pressure and influence, defects and imperfectionsin the form of attestation or in the language used therein shall notrender the will invalid if it is proved that the will was in factexecuted and attested in substantial compliance with all therequirements of Article 805.

The Code Commission, cognizant of the conflicting views betweensubstantial compliance and mandatory compliance and the undeniableinclination towards liberal construction, recommended the codificationof the substantial compliance rule, as it believed this rule to be inaccord with the modern tendency to give a liberal approach to theinterpretation of wills. This became Art 809 NCC.

Art 809 provides that when there are defects and imperfections in theATTESTATION CLAUSE as to its form or language used therein, suchdefects and imperfections shall NOT invalidate the will, provided thereis NO bad faith, forgery, fraud or undue and improper influence andpressure. The attestation clause is essentially the act of the witnessesover whom the testator has no control. It would be unfair if thetestator pays for the lapses committed by his witnesses.

REQUISITES FOR APPLICATION OF ART 8091. Defects and imperfections must be in the FORM of the

attestation or in the language used therein;

2. There must be NO bad faith, forgery, fraud, or undue andimproper pressure and influence, in the execution of theattestation clause, and

3. It must be proved that the will was in fact executed and attestedin SUBSTANTIAL COMPLIANCE with all the requirements of Art.805 (formal requirements).

LIMITS OF THE DOCTRINE OF LIBERAL INTERPRETATIONEvidence aliunde is not allowed to fill in a void in any part of thedocument or supply missing details that should appear in the will itself.The doctrine only permits an exploration within the confines of the willto ascertain its meaning or to determine the existence or absence ofthe requisite formalities of law

CASES:GIL V. MURCIANO, 88 PHIL 260 (1951)FACTS: Carlos Gil executed a last will and testament, bequeathing hisproperties to his wife Isabel Herreros (appellee). After his death, the willwas presented for probate in CFI Manila. This was opposed by hisnephew Roberto Toledo and sister, Pilar Vda de Murciano (appellant).Toledo’s legal right to intervene was questioned; subsequently he waseliminated from the case. Subsequently, the will was destroyed duringthe will, necessitating its reconstitution after liberation.

The will consisted only of 2 pages. The attestation clause does not statethat the testator signed the will; it only shows that the attesting witnessessigned the will. Despite this defect, CFI admitted to probate the will.

ISABEL’S CONTENTION: The defective attestation clause may becured by inferring the other parts of the will an inserting a missing phraseto complete the whole meaning of the attestation clause. Thus, thestatement should read: …as well as all the pages

PILAR’S CONTENTION: The will should not be probated since it did notcomply with the requirements of Sec 618 of the Code of Civil Procedure,as amended, which provides that: “The attestation clause shall state thenumber of sheets or pages used, upon which the will is written, and thefact that the testator signed the will and every page thereof, or causedsome other person to write his name, under his express direction, in thepresence of 3 witnesses, and the latter witnessed and signed the will and


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all pages thereof in the presence of the testator and of each other.”Moreover, the earlier decision of SC in this case stated that the defect inthe attestation clause is fatal not just a mere clerical error for it affectsthe very essence of the clause. Thus, the defect cannot be cured byinference to the will itself

ISSUE: WON the will is valid despite defects in the attestation clause

HELD: Yes, the will is valid. The SC in Dichoso de Tecson v. DeGorostiza (1922), noted that there are two divergent tendencies in wills—one being planted on strict construction (Rodriguez v. Alcala) and theother on liberal construction (Abangan v. Abangan). The decision inAbangan favoring liberal construction is oft-cited approvingly in laterdecisions.

In Abangan, the SC held: Words omitted from a will may be suppliedby the court whenever necessary to effectuate the testator'sintention as expressed in the will: but not where the effect ofinserting the words in the will would alter or defeat such intention,or change the meaning of words that are clear and unequivocal." Onpages 50 and 51, the same work says: "To aid the court in ascertainingand giving effect to the testator's intention in the case of an ambiguouswill, certain rules been established for guidance in the construction orinterpretation to be placed upon such a will, and in general a will shouldbe construed according to these established rules of construction."

This leads us to ask: If we cure a deficiency by means of inferences,when are we going to stop making inferences to supply fatal deficienciesin wills? The later decisions do tell us when and where to stop; theydraw the dividing line with precision. They do not allowevidence aliunde to fill a void in any part of the document or supplymissing details that should appear in the will itself. They onlypermit a probe into the will, an exploration within its confines, toascertain its meaning or to determine the existence or absence ofthe requisite formalities of law.

CAB: There is no legitimate, practical reason for objecting to the testatorinstead of the witnesses certifying that he signed the will in the presenceof the latter. The will is of the testator's own making, the intervention ofattesting witnesses being designed merely to protect his interest. If thesole purpose of the statute in requiring the intervention of witnesses is to

make it certain that the testator has definite and complete intention topass his property, and to prevent, as far as possible, any chance ofsubstituting one instrument for another, what better guaranty of thegenuineness of the will can there be than a certification by the testatorhimself in the body of the will so long as the testator's signature is dulyauthenticated? Witnesses may sabotage the will by muddling andbungling it or the attestation clause. For the testator, who is desirous ofmaking a valid will, to do so would be a contradiction. If the formalitiesare only a means to an end and not the end themselves, and that end isachieved by another method slightly from the prescribed manner, whathas been done by the testator and the witnesses in the execution of theinstant will should satisfy both law and conscience.

A second ground of attack on the questioned will is that the first page orsheet thereof does not bear the testator's signature. The discussion onthe correctness of the copy of the attestation clause amply answers thisobjection in fact, the appellee's case is much stronger on this point forthe reason that there is not only speculative but also positive basis forthe conclusion that the testator's signature was affixed to the first page ofthe original. Both the testator and the attesting witnesses stated in thewill and in the attestation clause, respectively, that the former signedboth pages or sheets of the testament.

Art809 enunciates the doctrine of liberal interpretation. Accordingly, in theabsence of bad faith, forgery, fraud or undue and improper influence andpressure, defects or imperfections in the form of attestation clause or in thelanguage used therein shall not render the will invalid, if it is proved thatthe will was in fact executed and attested in substantial compliance with therequisites of law. Gil involves an attestation clause which omitted to statethat the testator signed the will in the presence of the witnesses. Such factwas, however, stated by the testator in the body of the will. There is noquestion as to the genuineness of the will, as even the opponents concedethat issue.

CANEDA V. CA, 222 SCRA 781 (1993)FACTS: On December, 1978, Mateo Caballero, a widow without anychildren and already in the twilight years of his life, executed a last willand testament at his residence in Cebu after attesting witnesses.


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Four months later, Mateo Caballero himself files a petition seeking toprobate his last will and testament but the testator passed away beforehis petition could finally be heard by the probate court.

ISSUE: WON the Last Will and Testament of Mateo Caballero “ExhibitC” will be allowed for the probate of his will. The base contention is theattestation clause.

The attestation clause is as follows:

We, the undersigned attesting Witnesses, whose Residencesand postal addresses appear on the Opposite of our respectivenames, we do hereby certify that the Testament was read by himand the testator, Mateo Caballero, has published unto us theforegoing Will consisting of Three Pages, including theAcknowledgment, each page numbered correlatively in letters onthe upper part of each page, as his Last Will and Testament andhe has signed the same and every page thereof, on the spacesprovided for his signature and on the left hand margin, in thepresence of the said testator and in the presence of each and allof us.

HELD: No, it is contended by petitioner that the aforequoted attestationclause, in contravention of the express requirements of the thirdparagraph of Article 805 of the Civil Code for attestation clauses, fails tospecifically state the fact that the attesting witnesses witnessed thetestator sign the will and all its pages in their presence and that they, thewitnesses, likewise signed the will and every page thereof in thepresence of the testator and of each other.

The following comment of former Justice J.B.L. Reyes regarding Article809, wherein he urged caution in the application of the substantialcompliance rule therein, is correct and should be applied in the caseunder consideration, as well as to future cases with similar questions:x x x The rule must be limited to disregarding those defects that can besupplied by an examination of the will itself; whether all the pages areconsecutively numbered; whether the signatures appear in each andevery page; whether the subscribing witnesses are three or the will wasnotarized. All these facts that the will itself can reveal, and defects or

even omissions concerning them in the attestation clause can be safelydisregarded. But the total number of pages, and whether all personsrequired to sign did so in the presence of each other must substantiallyappear in the attestation clause, being the only check against perjury inthe probate proceedings.Under Art 809, the defects or imperfections must be only be with respectto the form of the attestation or the language employed therein. Suchdefects or imperfections would not render a will invalid should it beproved that the will was really executed and attested in compliance withArt 805. In this regard, however, the manner of proving the dueexecution and attestation has been held to be limited to merely anexamination of the will itself without resorting to evidence aliunde,whether oral or written.

Caneda affirms the ruling in Gil v Murciano. However, the results of thesetwo cases are divergent. Gil allowed the probate of the will, whereasCaneda disallowed the will. The factual difference between these two casesshould be noted.

ATTY SEBASTIAN: In Gil, the will was reconstituted while in Caneda,the error was committed by the witnesses. When the will wasreconstituted in Gil, it was no longer exactly as it was written, and suchcannot be faulted to the testator.

Art. 810. A person may execute a holographic will which must beentirely written, dated, and signed by the hand of the testatorhimself. It is subject to no other form, and may be made in or outof the Philippines, and need not be witnessed.

HOLOGRAPHIC WILL – It is one executed by the testator himself,writing, dating and signing it by his OWN hand, without the attestationof any third person.

PURPOSE: To enable the testator the execute the will without lettinganyone know of its existence (secrecy of its existence and not thecontents) so they won’t pressure or influence the testator, or hastenthe death of testator

ADVANTAGES AND DISADVANTAGES OF HOLOGRAPHIC WILL


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A. ADVANTAGES1. It is simple and easy to make, convenient for those who

have no means to employ lawyers or have very littleproperty to dispose of

2. It guaranties absolute secrecy of testamentary dispositionssince it can be made without anyone else knowing it

B. DISADVANTAGES1. There is no guaranty as to the capacity of the testator2. There is no protection against FIVUM which may never be

known in case of the immediate death of the testator3. It may not faithfully express the wishes of the testator due

to faulty expressions4. It can be easily concealed

NOTE: A blind testator can write a holographic will, if he learned towrite before he became blind, or in spite of his blindness.

REQUIREMENTS:1. Written entirely by the hand of the testator2. Dated and signed3. In a language/dialect known to the testator (Art 804)

Anti-fraud proof: entirely handwritten by the testator

PURPOSE OF DATE1. To determine the age of the testator2. The soundness of mind of the testator3. Whether Art 810 applies

It can be placed anywhere because it would serve its purpose. Anincomplete date is sufficient if it does not create a controversy. If willcreate a controversy, then a complete date is necessary.

CASES:ROXAS V. DE JESUS JR., 134 SCRA 245 (1985)FACTS: After the death of spouses Andres de Jesus and Bibiano Roxasde Jesus, a special proceeding for the spouses’ intestate estate was filedby Simeon Roxas, the brother of Bibiana. Subsequently, he delivered tothe lower court a document purporting to be the holographic will of thedeceased Bibiana. At the hearing for the holographic will’s probate, thebrother testified that after being appointed administrator, he found a

notebook of Bibiana which bore her will in the form of a letter to herchildren. It was entirely written and signed in the handwriting of Bibianaand dated “Feb./61”.

The brother’s testimony was corroborated by Bibiana’s two sons that theletter dated as such is the holographic will of their deceased mother.Both sons recognized the handwriting of their mother and positivelyidentified her signature. They further testified that the language of the will(English) was understood by their mother; and that the date was the saiddate when the will was executed by their mother. Luz Roxas de Jesus,another compulsory heir, filed her opposition to the will. She contendsthat the alleged will was not dated as required nu Article 810. She saysthat the day, month, and year should be indicated.

ISSUE: WON the date “Feb./61 is in compliance with Article 810

HELD: Yes. The prevailing policy is to require satisfaction of the legalrequirement in order to guard against fraud and bad faith but withoutundue or unnecessary curtailment of testamentary privilege. If a will hasbeen executed in substantial compliance with the formalities of the law,and the possibility of bad faith and fraud in the exercise thereof isobviated, said will should be admitted to probate.

If the testator, in executing his will, attempts to comply with all therequisites, although compliance is not literal, it is sufficient if the objectiveor purpose sought to be accomplished by such requisite is actuallyattained by the form followed by the testator.

The objective of the solemnities surrounding execution of wills is to closethe door against bad faith and fraud, to avoid substitution of wills andtestament and to guaranty their truth and authenticity. A complete date isrequired to provide against such contingencies as that of two competingwills executed on the same day, or if a testator becoming insane on theday in which a will was executed. There is no such contingency in thiscase.

In the case at bar, no evidence of bad faith and fraud in its execution norwas there any substitution of wills and testament. There is no questionthat the holographic will of the deceased Bibiana Roxas de Jesus wasentirely written, dated and signed by the testatrix herself and in a


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language known to her, and there is no question as to its genuinenessand du execution.

As a general rule, the “date” in a holographic will should includethe day, month, and year to its execution. However, when as in thecase at bar, there is no appearance of fraud, bad faith, undueinfluence and pressure and the authenticity of the will wasestablished and the only issue is whether of not the date “Feb./61appearing on the holographic will is a valid compliance with Art.810 of the Civil Code, probate of the holographic will should beallowed under the principle of substantial compliance.

Art 810 NCC requires, among others, that a holographic will be dated.While a complete date is generally required, an incomplete date whichsets forth only the month and the year of execution, is not a fatal defect ifit can be shown that there was no bad faith, fraud, and undue andimproper influence and pressure. Probate is further justified if thegenuineness of the handwriting of the testator is proved, or otherwiseadmitted by the parties, and the only ground or opposing probate is thetechnicality resulting from an incomplete date. Roxas explains the reasonfor requiring a holographic will to be dated.

LABRADOR V. CA, 184 SCRA 170 (1990)FACTS: On June 10, 1972, Melecio Labrador (Melecio) died inZambales, where he was residing leaving behind a pieces of property(fishpond and land) and naming all his children (by two mothers) in aholographic will as heirs.

Two of his children, namely Jesus and Gaudencio, claimed that Meleciosold the portion of the fishpond property to them for P6,000 in 1971 andthat Jesus sold such property to Navat for P5,000.00. The other brother,Sagrado, filed a complaint for the annulment of the purported “Deed ofAbsolute Sale” since he already acquired such property from his fatherunder the holographic will which was executed on March 17, 1968.

The will states that a portion of the fishpond, about one ha. was given toSagrado Labrador, with specifications as to its boundary. On the secondpage of the will was stated: “And this is the day in which we agreed thatwe are making the partitioning and assigning the respective assignment

of the said fishpond, and this being in the month of March 17th day in theyear 1968 and this decision and or instruction of mine is to be followed.And the one who made this writing is no other than Melecio Labrador,their father.” The date was not written in the usual place but on page 2 ofthe will.Respondents claim that the date of 17 March 1968 in the will was whenthe testator and his beneficiaries entered into an agreement amongthemselves about “the partitioning and assigning of the respectiveassignments of the said fishpond and was not the date of the executionof the holographic will; hence the will is more of an “agreement” betweenthe testator and the beneficiaries to the prejudice of the other compulsoryheirs like the respondents.

ISSUE: WON the alleged holographic will of Melecio Labrador is dated,as provided for in Art 810

HELD: Yes, the will is considered dated. The Court approved theprobate of the holographic will of Melecio. The law does not specific aparticular location where the date should be placed in the will. The onlyrequirements are that the date be in the will itself and executed in thehands of the testator, which were met in this case.

The intention to show 17 March 1968 as the date of the execution of thewill is plain from the tenor of the succeeding words of the paragraph.The will was not an agreement but a unilateral act of Melecio who knewthat he was executing a will. The act of partitioning and the declarationthat such partitioning as the testator’s instruction or decision to befollowed reveal that Melecio was fully aware of the

1. nature of the estate property to be disposed of and2. of the character of the testamentary act as a means to control

the disposition of his estate.

The required date which must be indicated in a holographic will issubstantially complied with if the date were incorporated as part of the bodyof the will.

Art811. In the probate of a holographic will, it shall benecessary that at least one witness who knows the handwritingand signature of the testator explicitly declare that the will and


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the signature are in the handwriting of the testator. If the will iscontested, at least three of such witnesses shall be required.In the absence of any competent witness referred to in thepreceding paragraph, and if the court deem it necessary, experttestimony may be resorted to.

The only issue that can arise in the probate of a holographic will is thegenuineness of the handwriting. The ONE WITNESS rule is applicablein case of uncontested wills and the THREE WITNESS rule in case ofcontested wills. Expert testimony may be resorted to in either caseupon the court’s discretion.

PROCEDURAL DIFFERENCES IN NOTARIAL ANDHOLOGRAPHIC WILLS

HOLOGRAPHIC WILL NOTARIAL WILLThe only guaranty of authenticity isthe handwriting itself

The testimony of the subscribingwitnesses and the notary is theguaranty of authenticity

If lost, photostatic copy may beused to prove the existence of theoriginal

If lost, the subscribing witnessesare available to authenticate

If oral evidence were admissible,only one man could engineer thefraud

Difficult to convince 3 witnessesand notary to deliberately lie

In case of loss, the witnesseswould testify as to their opinion ofthe handwriting they allegedly saw,on opinion which cannot be testedin court by oppositors because thehandwriting itself is not at hand

In case of loss, the 3 subscribingwitnesses would be testifying tofact which they saw, namely theact of the testator of subscribingthe will

The SC held that Art 811 is not mandatory in the sense that 3witnesses are required should a holographic will be contested as nowitnesses may be present at the execution of the holographic will. Theexistence of witnesses, with the requisite qualifications (that theyknow the handwriting and signature of the testator) is not a matterwithin the control of the proponent. As such, the presence of witnessesis merely PERMISSIVE but the courts are not denied the option ofprocuring an expert witness.

EVIDENCE: HANDWRITING ANALYSISTwo important factors to consider in handwriting analysis

1. Pressure of the handwriting which leaves an impression on thepaper

2. Speed of handwriting – fast writing = broken lines under amicroscope; slow writing = solid lines under a microscope

CASES:GAN V. YAP, 104 PHIL 509 (1958)FACTS: In November 1951, Felicidad Esguerra-Alto Yap died of heartfailure, leaving properties in Bulacan and Manila. In 1952, petitioner Ganinitiated proceedings in CFI Manila for the probate of a holographic willallegedly executed by the deceased. In the will, the Bulacan propertieswill go to her relatives while her spouse is to receive her Manilaproperties on the condition that he will built a health center in Bulacan inher name)

The decedent’s surviving husband (respondent Yap) asserted that thedeceased had not left any will nor executed any testament during herlifetime.The will itself was not presented during the trial. Petitioner tried toestablish its contents and due execution from the statements of FelinaEsguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez.According to the witnesses:

a. The decedent executed a will on November 5, 1951 in herresidence, in the presence of Felina who was invited to read it.Prior to the execution of her will, she told her cousin Vicente thatshe wanted to keep the will a secret

b. Socorro and Rosario were also invited to read the will in thepresence of Felina

c. When the decedent was confined in the hospital, she entrustedthe will (contained in a purse) to Felina

The oppositors presented an alternate account: the decedent couldnot have executed the will on November 5 since on the very sameday she suffered a serious heart attack and was constantly attendedby her husband and her personal attendant, Mrs. Bantique.

ISSUE: May a holographic will be probated upon the testimony ofwitnesses who have allegedly seen the will and who declared that it wasin the handwriting of the testator?


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HELD: No. The courts will not distribute the property of the deceased inaccordance with his holographic will, unless they are shown hishandwriting and signature. Taking all the above circumstances together,we reach the conclusion that the execution and the contents of a lost ordestroyed holographic will may not be proved by the bare testimony ofwitnesses who have seen and/or read such will.

HOLOGRAPHIC WILL AND ORDINARY WILL DISTINGUISHEDNOTARIAL WILL HOLOGRAPHIC WILLAuthenticity and due execution isnecessary; hence the testimony ofone subscribing witness issufficient when there is noopposition; 3 if there is opposition

No need for witnesses PROVIDEDthat the will is ENTIRELY written,dated and signed by the hand of thetestator himself

Ordinary wills may be proved bytestimonial evidence when lost ordestroyed.

The document ITSELF is a materialproof of authenticity.

Oral testimony is allowed becauseit is difficult to make 3 witnesseslie (besides their stories can bechecked)

If oral testimony is allowed, it wouldbe easy for a man to commit fraudby forging a will and presenting it tounknowing witnesses

The present case raises the following doubts:1. It is hard to believe that the deceased should show her will

precisely to relatives who had received nothing from it: SocorroOlarte and Primitivo Reyes.

2. If the decedent wanted so much to conceal the will from herhusband, why did she not entrust it to her beneficiaries?

FOOTNOTE 8: Perhaps [the will] may be proved by a photographic orphotostatic copy. Even a mimeographed or carbon copy; or by othersimilar means, if any, whereby the authenticity of the handwriting of thedeceased may be exhibited and tested before the probate court. (Thiswas used in the decision of Rodelas v. Aranza)

Art 811 prescribes the evidence required for the probate of a holographicwill. Gan stresses that if the holographic will sought to be probated is lost,or otherwise cannot be presented in court, the same must be denied probate.

This is so because the only guarantee of authenticity (i.e., the handwritingof the testator) is not available for scrutiny. It is equally important to takenotice of footnote no. 8 of the decision, which is the basis of the ruling inthe subsequent case of Rodelas v Aranza.

ATTY SEBASTIAN: Petitioner needed witnesses to prove the existenceof the will. If the will is supposed to be a secret, why did the testatorallow the witnesses to read the will. Since the will cannot presented, theholographic will cannot admitted to probate

RODELAS V. ARANZA, 119 SCRA 16 (1982)FACTS: In this case, the court did not categorically rule on theadmissibility to probate of a secondary evidence of the missingholographic will. It must be noted further that the dispositive portion ofthe decision ended at the point where the denial of the motion forreconsideration was set aside. It would seem that the logical result ofsuch “setting aside” of the order would be the remanding of the case tothe court of origin for further proceedings in accordance with theaforesaid decision.

ISSUE: WON a holographic will which was lost or cannot be found canbe proved by means of a photo static copy

HELD: Pursuant to Art 811, probate of holographic wills is the allowanceof the will by the court after its due execution has been proved. Theprobate may be uncontested or not. If uncontested, at least oneidentifying witness is required and if no witness is available, experts maybe resorted to. If contested, at least 3 identifying witnesses are required.However, if the holographic will has been lost or destroyed and no othercopy is available, the will cannot be probated because the best and onlyevidence is the handwriting of the testator in said will. It is necessary thatthere be a comparison between sample handwritten statements of thetestator and the handwriting will. But a photo static copy or xerox copy ofthe holographic will may be allowed because comparison can be madewith the standard writings of the testator. In the case of Gan vs Yap, thecourt ruled that, “ the execution and the contents of a lost or destroyedholographic will may not be proved by the bare testimony of witnesseswho have been and/or read such will. The will itself must be presented;


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otherwise it shall produce no effect. The law regards the document itselfas material proof of authenticity.” But in the footnote of said decision, itsays that “Perhaps it maybe proved by a photographic or photo staticcopy. Even a mimeographed or carbon copy; or by other similar means,if any, whereby the authenticity of the handwriting of the deceased maybe exhibited and tested before the probate court”.

Evidently, the photo static or xerox copy of the lost or destroyedholographic will may be admitted because then, the authenticity of thehandwriting of the deceased can be determined by the probate court.

Rodelas traces its antecedents to Gan v Yap, particularly in footnote no. 8of the latter decision. In an obiter incorporated through a footnote, the courtnoted in Gan that a lost holographic will might be proved through a"photographic or photostatic copy" thereof, or perhaps even through a"mimeographed or carbon copy". Accordingly, the court in Rodelasreversed the order of the lower court dismissing the petition for probate (aswell as the motion for reconsideration) by reason of the proponent'sinability to produce the original copy of the alleged lost holographic will. Itmust be noted that Rodelas did not categorically rule on the admissibility toprobate of a secondary evidence of the missing holographic will. It must benoted further that the dispositive portion of the decision ended at the pointwhere the denial of the motion for reconsideration was set aside. It wouldseem that the logical result of such "setting aside" of the order would be theremanding of the case to the court of origin for further proceedings inaccordance with the aforesaid decision.

One final note: the court observed that with a photocopy of the lost ormissing holographic will, the handwriting of the testator can beauthenticated. This observation must be tested in the light of establishedprinciples governing the authentication of questioned documents, for it issufficiently clear that an analysis of the handwriting of the testator based ona photocopy of the lost or missing holographic will cannot go beyond acomparison of strokes with an accepted standard. Circumstances such asspeed of writing and the pressure of the handwriting cannot be tested basedon a photocopy of the questioned document.

ATTY SEBASTIAN: SC reversed the probate court’s decision indismissing the petition for probate of the holographic will. The probatecourt should have required petitioners to present secondary evidenceinstead of summarily dismissing the petition for probate. The probatecourt is now tasked to examine footnote 8 in Gan v. Yap.

AZAOLA V. SINGSON, 109 PHIL 102 (1960)FACTS: On September 9, 1957, Fortunata S. vda. de Yance died.Francico Azaola (Francisco) submitted for probate the holographic will ofFortunata S. vda. de Yance, whereby Maria Milagros Azaola was madethe sole heir as against the nephew of the deceased Cesario Singson.Francisco testified that he recognized all the signature appearing in theholographic will as the handwriting of the testatrix.

The probate was denied on the ground that under Art 811 NCC, theproponent must present three witnesses who could declare that the willand the signature are in the writing of the testatrix, the probate beingcontested; and because the lone witness presented by the proponent“did not prove sufficiently that the body of the will was written in thehandwriting of the testatrix. The proponent appealed, urging that he wasnot bound to produce more than one witness because the will’sauthenticity was not questioned and that Art 811 does not mandatorilyrequire the production of three witnesses to identify the handwriting andsignature of a holographic will, even if its authenticity should be deniedby the adverse party.

ISSUE: WON the proponent is required to present three-witnessesrequired under the first paragraph of Art 811

HELD: No. Since the authenticity of the will was not contested, hewas not required to produce more than one witness; but even if thegenuineness of the holographic will were contested, the Court is ofthe opinion that Article 811 cannot be interpreted as to require thecompulsory presentation of three witnesses to identify thehandwriting of the testator, under penalty of having the probatedenied.. Since no witness may have been present at the execution of aholographic will, none being required by law (Art. 810, NCC), it becomesobvious that the existence of witness possessing the requisitequalifications is a matter beyond the control of the proponent. For it is notmerely a question of finding and producing any three witnesses, they


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must be witness “who know the handwriting and signature of the testator”and who can declare truthfully that the will and the signature are in thehandwriting of the testator”. There may be no available witness of thetestator’s hand; or even if so familiarized, the witnesses may be unwillingto give a positive opinion. Compliance with the rule of paragraph 1 ofArt. 811 may thus become an impossibility. The law foresees thepossibility that no qualified witness may be found (or what amounts tothe same thing, that no competent witness may be willing to testify to theauthenticity of the will), and provides for resort to expert evidence tosupply the deficiency.

The rule of this article requiring that three witnesses be presented if thewill is contested and only one if no contest is had, was derived from therule established for ordinary testaments. But it cannot be ignored that therequirement can be considered mandatory only in the case of ordinarytestaments, precisely because the presence of at least three witnessesat the execution of ordinary wills is made by law essential to their validity(Art. 805). Where the will is holographic, no witness need be present(Art. 810), and the rule requiring production of three witnesses must bedeemed merely permissive if absurd results are to be avoided.

Under the Art. 811, the resort to expert evidence is conditioned by theword’s “if the Court deem it necessary”, which reveal that what the lawdeems essential is that the Court should be convinced of the will’sauthenticity. Where the prescribed number of witnesses is produced thecourt is convinced by their testimony that the will is genuine, it may beconsider it unnecessary to call for expert evidence/ On the other hand, ifno competent witness is available, or none of those produced isconvincing, the Court may still, and in fact it should, resort to handwritingexperts. The duty of the Court is to exhaust all available lines of inquiry,for the state is as much interested as the proponent that the trueintention of the testator be carried into effect.

The law leaves to the trial court if experts are still needed, nounfavourable influence can be drawn from a party’s failure to offerexpert evidence, until and unless the court expressesdissatisfaction with the testimony of the lay witnesses.

The Court conclude that the rule of the first paragraph of Art. 811 ofthe Civil Code is merely directory and is not mandatory.

CODOY V. LUGAY, 312 SCRA 333 (1999)FACTS: On April 6, 1990. Evangeline Calugay, Josephine Salcedo andEufemia Patigas who are the devisees and legatees of the holographicwill of the decedent, Matilde Seno vda. De Ramoral, filed a petition forthe probate of the will. Such was opposed by the two adopted children ofMatilde, namely Eugenia Ramonal Codoy and Manuel Ramonal. Thepetitioners claimed that the will was a forgery and illegible. Theyexpressed doubts as to the repeated appearance on the will of thesignature of Matilde after the disposition of a property.

Respondents presented six witnesses and various documentaryevidence. Petitioners instead of presenting their evidence, filed ademurrer to evidence, claiming that respondents failed to establishsufficient factual and legal basis for the probate of the will. The lowercourt denied the probate for insufficiency of evidence and lack of merit.In support, the respondents filed a notice of appeal and reiterated thetestimony of the following witnesses:

a. Augusto Neri-clerk of court, CFI- Misamis Oriental- He producedand identified the records of the case. The documents presentedbore the signature of Matilde. This was mainly for the purpose oflaying the basis for comparison of the handwriting of the testatrixwith the writing treated or admitted as genuine by the party againstwhom the evidence is offered.

b. Generosa Senon- election registrar of Cagayan de Oro- toproduced and identify the voter’s affidavit of Matilde, but such wasno longer available

c. Matilde Ramonal Binanay- Matilde was her aunt and she lived withher for eleven years, accompanying Matilde when she collectedrent from her tenants. She claimed to have acquired familiaritywith Matilde’s signature, when Matilde issued the receipts. Sheclaimed that at the time of her death, Matilde had left a holographicwill dated Aug. 30, 1978 and all the dispositions therein, dates andsignatures were that of Matilde.

d. Fiscal Todolfo Waga- used to be a practicing lawyer and handledall the pleadings and documents signed by Matilde in connectionwith the proceedings of Matilde’s late husband. He claimed that


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the handwriting on the will of Matilde was familiar but he was notsure.

e. Mrs. Vedad- employee of DENR- claimed that she was familiarwith Matilde’s handwriting since she signed the documents in herpresence when she was applying for pasture permit.

f. Evangeline Calugay- claimed to have been adopted by Matildesince birth and that the signature appearing on the will is the trueand genuine signature of Matilde.

ISSUES:1. WON Art 811, providing that at least three witnesses explicitly

declare the signature in a contested will as the genuinesignature of the testator is mandatory or directory

2. WON the witnesses sufficiently establish the authenticity anddue execution of the holographic will

HELD:FIRST ISSUE: As to No. 1, it is mandatory. The duty of the court is toexhaust all available lines of inquiry for the state is as much interested asthe proponent that the true intention of the testator be carried into effect.Art 811 provides, as a requirement for the probate of a contestedholographic will that at least three witnesses explicitly declare that thesignature in the will is the genuine signature of the testator.

The language used in Art 811 is mandatory. The word “shall” in a statutecommonly denotes an imperative obligation and is inconsistent with theidea of discretion and that the presumption is that the word “shall” whenused in a statute is mandatory.

SECOND ISSUE: As to the second issue, the witnesses were not ableto establish the authenticity and due execution of the holographic will. Itcannot be ascertained that the holographic will was that written byMatilde.Not all the witnesses presented by the respondents testified explicitlythat they are familiar with the handwriting of the testator. In the case ofthe Clerk of Court, he merely identified the record of Special Proceedingsbefore said court. He was not presented to declare explicitly that thesignature appearing in the holographic will was that of Matilde.

Evangeline Calugay never declared that she saw the deceased write anote or sign a document. Fiscal Waga expressed doubts as to theauthenticity of the signature in the holographic will.

As it appears in the above, the three witness requirement was notcomplied with. A visual examination of the holographic will convincedthe court that the strokes were different when compared with otherdocuments written by the testator.

Therefore, the laws on this subject should be interpreted in such a wayas to attain their primordial ends. But on the other hand, one must notlose sight of the fact that it is not the object of the law to restrain andcurtail the exercise of the right to make a will. The records of the casewere remanded to the court of origin to allow the oppositors to adduceevidence in support of their opposition to the probate of the holographicwill of Matilde.

Codoy is an unusual case with an unusual decision. The bone ofcontention between the parties was whether or not the oppositors to theprobate of a will may yet present evidence against the admission of thewill, after they have unsuccessfully made a demurrer to evidence. Inshort, the core issue is whether the oppositors should be allowed topresent controverting evidence after the demurrer was denied. Ascorrectly ruled by the Supreme Court, the oppositors should be permittedto present their evidence.

However, Codoy is a controversial decision as it held that the 3-witnessrule in Article 811 of the Civil Code is a mandatory requirement in thecase of contested holographic wills. Hence non-compliance therewithwould be a fatal error. Azaola vs. Singson, a decision penned by JusticeJ.B.L. Reyes, held that the requirement in Article 811 is merelydirectory. Justice Reyes explained in detail the reason for suchconclusion. Now, with Codoy reaching a different conclusion, there isnow a divisional ruling that is diametrically opposed with a prior en bancruling.

But was it absolutely necessary for Codoy to disturb Azaola? I do notthink so. Codoy could have been decided purely on the procedural issuethat was raised. To support the conclusion reached by the Court, it would


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have been sufficient to discuss the deficient evidentiary basis for theadmission of the holographic will to probate. It was totally unnecessaryto rule that compliance with the 3-witness requirement in Article 811 ismandatory.

ATTY SEBASTIAN: Azaola v. Singson is a decision en banc; Codoy isonly a decision of the SC division. Res ipsa loquitur. Decision en banccontradicted by a SC division decision

RIVERA V. IAC, 1982 SCRA 322 (1990)FACTS: In May 1975, Venancio Rivera, a wealthy man died. PetitionerJose Rivera claimed to be the only heir and filed a petition for theissuance of letters of administration over Venancio’s estate. Said petitionwas opposed by respondent Adelaido, claimed that Venancio was hisfather and that the decedent died not die intestate but left 2 holographicwills. Adeilado then filed a petition for the probate of the wills but thesame was opposed by Jose who reiterated that he was the sole heir ofVenancio’s intestate estate

Adelaido was subsequently appointed as special administrator. The trialcourt found that Jose was the son of a different Venancio Rivera whowas married to a Maria Vital. As such, he had no claim to the estate.The will was also admitted to probate. To support his claim, Josepresented his birth certificate and a witness, Domingo Santos, whoalleged that he saw Venancio and Jose several times. Jose also averredthat Adelaido considered him a half-brother; and that Adelaido and hissiblings were illegitimate children sired by Venancio with Maria Jocson.

For his part, Adelaido alleged that his parents, Venancio and MariaJocson, were legally married. He could not present his parents’ marriagecertificate since the records were destroyed during the war but showedthe following instead:

a. His own birth certificate as well as those of his siblings, showingthat they were the legitimate children of Venancio and MariaJocson

b. Atty. Morales who affirmed that he knew the deceased and hisparents and maintained that the decedent introduced Maria Jocsonto him as his wife

c. Venancio’s birth certificate showing that his parents were MagnoRivera and Gertrudes delos Reyes as contrasted with the marriage

certificate presented by Jose which indicated that Venancio wasthe son of Florencio Rivera and Estrudez Reyes

ISSUES:1. WON Jose is the son of the decedent Venancio2. WON the three-witness rule is applicable in this case

HELD:FIRST ISSUE: No, Jose is not the son of the decedent. Jose’sarguments failed to prove:

1. That the Venancio Rivera as found in his birth certificate is thesame as the decedent Venancio whose estate is in question(Jose cannot prove that Magno and Florencioo are one and thesame person)

2. If it is true that he was the legitimate son of Venancio, why didJose not assert his right as such when his father was still alive

3. Why did Jose not present his mother (Maria Vital) to support hisallegations that she was the lawful wife of the decedent

Based on the evidence presented, it may be concluded that Josebelonged to another family who had no relation whatsoever with thefamily of Venancio Rivera and Maria Jocson. Except for the curiousidentity of names of the head of each family, there is no evidence linkingthe two families or showing that the deceased Venancio was the head ofboth.

SECOND ISSUE: No. The respondent court considered the wills validbecause it found them to have been written, dated and signed by thetestator himself in accordance with Article 810 of the Civil Code. It alsoheld there was no necessity of presenting the three witnesses requiredunder Article 811 because the authenticity of the wills had not beenquestioned.

But the applicable provisions should be Art 811 NCC which providesthat:

In the probate of a holographic will, it shall be necessarythat at least one witness who knows the handwriting andsignature of the testator explicitly declare that the willand the signature are in the handwriting of the testator. If


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the will is contested, at least three of such witnessesshall be required.

Since Jose Rivera is not the son of the decedent Venancio, andbeing a stranger, he has no personality to contest the wills and hisopposition thereto did not have the legal effect of requiring thethree witnesses. The testimony of Zenaida and Venancio Jr(respondent’s siblings) as having been written and signed by theirfather, was sufficient.

Under Art 811, if the authenticity of the holographic will is contested, threewitnesses are required to identify the handwriting and signature of thetestator. Failing which, or if the court is not convinced, expert testimonymay be resorted to. Rivera presents a critical twist to the provision of law.Oppositor challenged the authenticity of the holographic will and claimedthat in fact the decedent died intestate. This would have necessitated theapplication of the three-witness rule, where it not for the superveningfinding of the court that the oppositor is not related to and in fact a strangerwith respect to the decedent. Consequently, and despite his opposition, thethree-witness rule is not applicable.

Art812. In holographic wills, the dispositions of the testatorwritten below his signature must be dated and signed by him inorder to make them valid as testamentary dispositions.

The dispositions written below the testator’s signature to the will areconsidered as independent of the will itself; hence they must be signedand dated by the testator. If one is not dated, even if signed, thatparticular disposition will be void without affecting the validity of theothers or the will itself. An unsigned and undated postscript to aholographic will is invalid as a testamentary disposition.

ATTY SEBASTIAN: Each portion of the will (new disposition with dateand signature) is a SEPARATE holographic will. Each date willdetermine the testamentary capacity of the testator. This is allowedbecause a holographic will is supposed to be a secret

ADDITIONAL DISPOSITIONS IN A NOTARIAL WILLIn a notarial will, additional dispositions found below the signature ofthe testator will make the whole will void because according to Art

805, the signature of the testator must be found at the end of the will.Therefore, should there be new dispositions in a notarial will, the samecan only be introduced through a CODICIL.

ADDITIONAL DISPOSITONS IN A HOLOGRAPHIC WILL1. Add the dispositions below the signature of the will provided

that said dispositions are also dated and signed and everythingis written in the hand of the testator himself;

2. Insert additional matters or cancel dispositions provided thatthe same are written and signed by the testator himselfwithout need of date; OR

3. Execute a valid codicil which may either be notarial orholographic

Art813. When a number of dispositions appearing in aholographic will are signed without being dated, and the lastdisposition has a signature and a date, such date validates thedispositions preceding it, whatever be the time of priordispositions.

The situation contemplated in Art 813 is one where there are varioustestamentary dispositions in a will, made by the testator presumably indifferent dates, which are signed but not dated. Should the lasttestamentary disposition be dated and signed, then all the dispositionsabove would be validated by this last disposition regardless of thenumber of the dispositions.

RULES IN CASE OF SUBSEQUENT DISPOSITIONS (ART813)

1. If the dispositions are merely signed without the date the date,and the last disposition is signed and dated, the effect is that itvalidates the disposition preceding it.

2. If the additional dispositions in a holographic will are not in thehandwriting of the testator and they are not signed by thetestator, then these additional dispositions are not valid but thewill itself remains valid.

3. But, if these additional dispositions are signed by the testator,the testator is owning or adopting the additional dispositions ashis own. They will now form part of the will because it is nowowned by the testator or adopted. In that case, the entire will isvoid. The will is not entirely in the handwriting of the testator.


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4. Several dispositions were signed but not dated and the lastdisposition has a signature and date – VALIDo The date on the last disposition validates the dispositions

preceding, whatever be the time of prior dispositions. Thisgives rise to the presumption that all the dispositions weremade simultaneously.

5. Date only and the last disposition is dated and signedo Only the last disposition is valid, all the previous

dispositions are void because the law says signed notdated. Only the disposition unsigned is invalid.

6. Not signed and not dated even if the last disposition is signedand dated – VOID

Art814. In case of any insertion, cancellation, erasure oralteration in a holographic will, the testator must authenticatethe same by his full signature.

Amendments may be done in a holographic will by cancellation,addition, erasure or alteration provided they are authenticated in theFULL SIGNATURE of the testator himself. The date is not requiredbecause it is presumed that the alteration to the will was made at thetime or date of the execution. Any cancellation, addition, erasure oralteration in a holographic will is precisely executed in consideration ofsecrecy.

EFFECTS OF INSERTION OR INTERPOLATIONS BY 3RD

PERSONS1. If the insertion was made by the hand of the testator himself

and he has authenticated the same, it alters the willaccordingly without affecting the will’s validity

2. If such were made by hand of the testator himself but was notauthenticated (unsigned) by him, then they would be deemedas if not written at all and the will remains valid as before

3. If such were made by the testator but not handwritten (e.g.,they were typewritten), whether or not authenticated by him,the entire will is nullified because it is no longer entirely in thehand of the testator

4. If such were made by a stranger and the testator hasauthenticated the same, then the entire will is also voidbecause it is no longer written by the hand of the testatorhimself

5. If such were made by a stranger but was not authenticated bythe testator, then such changes would be deemed as notwritten at all and the will remains valid as it was before. Anycancellation, insertion, erasure or alteration which was notauthenticated by the testator does not affect his will simplybecause a mischievous person decided to put something topenalize the testator, on the other hand, even if done by astranger, if the testator authenticated it, then it will affect thewill because the testator meant that such would be part of thewill.

EFFECT OF LACK OF SIGNATUREAny cancellation, addition, erasure, or alteration must beauthenticated by the testator. Failure to do so would result in thenullity of the cancellation, addition, erasure or alteration as if it wasnot written at all. However, if the cancellation, although notauthenticated, nevertheless results in the revocation of the will, thenalthough not valid as a cancellation, it is valid as a revocation.

CASES:KALAW V. RELOVA, 132 SCRA 237 (1984)FACTS: Private respondent Gregorio Kalaw, filed a petition for probateof the will of his sister. He claimed to be the sole heir. However, the willas first written, named Rosa Kalaw as the sole heir. Rosa opposed theprobate of the will because the alteration, according to her was notauthenticated by the signature of the testator as required by Art 814.Gregorio’s motion for reconsideration was denied and Rosa filed apetition for certiorari on the sole issue whether the original unalteredversion of the will, instituting her as sole heir can be probated or not.

ISSUE: WON the entire will was invalidated because of the defectiveprovision which had been altered but not authenticated

HELD: Yes, the entire will is invalidated. Although the general rule isthat if there are insertions, cancellations etc which are not authenticatedwith the testator’s signature, such should be considered as not having


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been made and the remainder of the will stands valid. However, thisparticular disputed will contains one substantial provision. Therefore, theeffect must the entire will is voided because nothing would remain in thewill which could be considered valid since there was only one substantialprovision. To state that the will as first written should be given effect is todisregard the change of mind of the testator. The institution of Gregorioas heir is not valid because it was not authenticated by as an heir is notvalid because it was not authenticated by the testator with her signature.Rosa, on the other hand, cannot inherit because the cancellation ofRosa’s name was an act of revocation. As such, she cannot inherit.Revocation does not need the authentication of the testator.

Art 814 requires the authentication of any alteration in a holographic will.The failure to authenticate such alterations results in the invalidity of thedesired change. However, where the testator canceled the name of theoriginal heir, and substituted in lieu thereof another name, without therequisite authentication, the institution of the new heir is inoperative byreason of a failure to comply with the requirement of Art 814. Should thenullity of the alteration result in the effectivity of the original disposition?The court in Kalaw ruled in the negative, stating among other things, thatthe intention of the testatrix has become indeterminable. Nevertheless, anexamination of the provision of Art 830 indicates clearly that "cancellation"is a mode of revocation. Can the institution of the original heir, therefore,be construed as having been expressly revoked by the cancellation of hername by the testatrix? If so, and considering that the subsequent institutionof the second heir is inoperative, who inherits the estate of the deceased?

ATTY SEBASTIAN: When Rosa’s name was cancelled, it meant arevocation of the will. Neither of them succeeded. Intestacy followed.

AJERO V. CA, 236 SCRA 488 (1994)FACTS: In the will, decedent named as devisees, the following:petitioners Roberto and Thelma Ajero, private respondent ClementeSand, Meriam S. Arong, Leah Sand. Lilia Sand, Edgar Sand, Fe Sand,Lisa S. Sand, and Dr. Jose Ajero Sr., and their children. Petitionersinstituted special proceeding for allowance of decedent’s holographicwill. They alleged that at the time of its execution, she was of sound anddisposing mind, not acting under duress, fraud and undue influence, andwas in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither thetestament’s body nor the signature therein was in decedent’shandwriting; it contained alterations and corrections which were not dulysigned by decedent, and the will was procured by petitioner throughimproper pressure and undue influence.

The petitioner was likewise opposed by Dr. Jose Ajero. He contested thedisposition in the will of a house and lot in Agusan del Norte, could notbe conveyed by decedent in its entirety, as she was not its sole owner.

On appeal, the petition for probate of decedent’s will was dismissed. TheCA found that “the holographic will fails to meet the requirements for itsvalidity.” It held that decedent did not comply with Art. 813 and 814 NCC.It alluded to certain dispositions in the will which were either unsignedand undated, or signed but not dated. It also found that the erasures,alterations and cancellation made thereon had not been authenticated bydecedent.

ISSUE: WON failure to comply with Art. 813 and 814 form part of therequisites for the formal or extrinsic validity of a holographic will, thusjustifying the disallowance of the will in its entirety

HELD: No. In the case of holographic wills, what assures authenticity isthe requirement that they be totally autographic or handwritten by thetestator himself, as provided under Art. 810 of the New Civil Code.Failure to strictly observe other formalities will not result in thedisallowance of a holographic will that is unquestionably handwritten bythe testator.

A reading of Art 813 NCC shows that its requirement affects thevalidity of the dispositions contained in the holographic will, but notits probate. If the testator fails to sign and date some of thedispositions, the result is that these dispositions cannot beeffectuated. Such failure, however, does not render the wholetestament void.

A holographic will can still be admitted to probate, notwithstandingnon-compliance with the provisions of Art 814. In the case of Kalawv. Relova, the Court held:


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Ordinarily, when a number of erasures, corrections andinterlineations made by the testator in a holographic will have notbeen noted under his signature… the will is not therebyinvalidated as a whole, but at most only as respects theparticular words erased, corrected or interlined.

Unless the unauthenticated alterations, cancellations or insertions weremade on the date of the holographic will or on testator’s signatures, theirpresence does not invalidate the will itself. The lack of authentication willonly result in disallowance of such changes

Ajero upholds the proposition that Art 813 and 814 do not form part ofthe requisites for formal or extrinsic validity of a holographic will. Thus,a failure on the part of the testator to observe the requirements of Art 813and 814 does not justify the disallowance of the will. However, therelevant provisions may be disallowed. The court further stresses thatproof of compliance with the requirement of Art 813 and 814 cannotordinarily be dealt with during probate proper, because at this stage, thecourt’s area of inquiry should, in general be limited to the followingissues: (1) whether the instrument submitted is indeed, the decedent’slast will and testament; (2) whether the will was executed in accordancewith the formalities prescribed by law; (3) whether the decedent hadtestamentary capacity at the time the will was executed; and (4) whetherthe execution of the will and its signing were voluntary acts of thedecedent.

Art815. When a Filipino is in a foreign country, he is authorizedto make a will in any of the forms established by the law of thecountry in which he may be. Such will may be probated in thePhilippines.

Art816. The will of an alien who is abroad produces effect in thePhilippines if made with the formalities prescribed by the law ofthe place in which he resides, or according to the formalitiesobserved in his country, or in conformity with those which thisCode prescribes.

Art817. A will made in the Philippines by a citizen or subject ofanother country, which is executed in accordance with the law ofthe country of which he is a citizen or subject, and which might beproved and allowed by the law of his own country, shall have thesame effect as if executed according to the laws of the Philippines.

ART 815 FOLLOWS THE GENERAL RULE IN ART 17 NCC:That the law governing the formal validity of wills is the law of the placewhere it is executed. The Code did not mean to invalidate the will of aFilipino, executed in a foreign country, when it is made in conformity withour law and not in conformity with the law of the place of execution.

EXCEPTION TO ART 815: Filipinos cannot execute a valid joint will,even in a foreign country. (Art 819)

CONFLICTS RULE IN SUCCESSION: These Articles govern theresolution of complications that may arise in the application of the laws ofdifferent jurisdictions. These rules seek to address the conflicts that arisefrom the place of the will’s execution. These conflicts rules are importantonly if the probate proceedings shall be conducted in the Philippines. Ifthe probate proceeding shall be conducted in a foreign jurisdiction, thenthe conflicts rues of that foreign nation must be observed.

ALLOWANCE OF WILLS PROBATED IN A FOREIGN COUNTRYUnder Rule 77 ROC, wills proved and allowed in a foreign country,according to the laws of such country, may be allowed, filed andrecorded by the proper CFI in the Philippines. The probate of the will inthe foreign state or country, however, must be proved in the samemanner as any other foreign judgment; in the absence of such proof, thewill cannot be proved in the Philippine, without actually showing itsexecution in accordance with any of the laws mentioned in this article.

Alien’s will in the Philippines – If an alien executes awill in the Philippines, not in conformity with our law, but in conformitywith the law of his own state or country, the will can be probated in thePhilippines.


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Law on Intrinsic Validity – The provisions of Art 815 to 817refer to the formality of wills executed by persons outside of their ownstate or country. With respect to the intrinsic validity of the provision ofthe will, the second paragraph of Article 16 of the Code provides that thenational law of the deceased shall apply. The place of execution doesnot affect the intrinsic validity of the contents of the will.

TABLE OF FORMALITIESNon-Resident

FilipinoResident Alien Non-Resident

AlienForeignelement soughtto beaddressed:

Domicile Citizenship Domicile andCitizenship

Applicable law: Philippine law(Art. 17)

Domiciliary law

Law of thestate where heis domiciled

Lex locicelebrationis

Law of theplace wherethe will isexecuted(Art. 17)

Philippine law(Art. 816)

Testator’snational law(Art. 816)

Domiciliary law

Philippine law(Art. 17)

Testator’snational law(Art. 817)

CASES:VDA. DE PEREZ V TOLETE, 232 SCRA 722 (1994)

FACTS: Dr Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan,who became American citizens and residents of New York, eachexecuted a will also in New York, containing provisions on presumptionof survivorship (in the event that it is not known which one of the spousesdied first, the husband shall be presumed to have predeceased his wife).

Later, the entire family perished in a fire that gutted their home. Thus,Rafael, brother of Jose, who was named trustee in Jose’s will, filed forseparate probate proceedings of the wills.

Later, Evelyn’s mother, Salud Perez, filed a petition for reprobate inBulacan. Rafael opposed, arguing that Salud was not an heir accordingto New York law. He contended that since the wills were executed inNew York, New York law should govern. He further argued that, by NewYork law, he and his brothers and sisters were Jose’s heirs and as suchentitled to notice of the reprobate proceedings, which Salud failed togive. For her part, Salud said she was the sole heir of her daughter,Evelyn, and that the two wills were in accordance with New York law. Butbefore she could present evidence to prove the law of New York, thereprobate court already issued an order, disallowing the wills.

ISSUE: WON the reprobate of the wills should be allowed

HELD: Yes, it should be allowed after proper notice is given to thebrothers and sisters of Dr. Jose Cunanan

Extrinsic Validity of Wills of Non-Resident AliensThe respective wills of the Cunanan spouses, who were Americancitizens, will only be effective in this country upon compliance with theArticle 816 of the Civil Code.

Thus, proof that both wills conform with the formalities prescribed byNew York laws or by Philippine laws is imperative.

Evidence for Reprobate of Wills Probated outside the PhilippinesThe evidence necessary for the reprobate or allowance of wills whichhave been probated outside of the Philippines are as follows:

(1) the due execution of the will in accordance with the foreign laws;(2) the testator has his domicile in the foreign country and not in the

Philippines;(3) the will has been admitted to probate in such country;(4) the fact that the foreign tribunal is a probate court, and(5) the laws of a foreign country on procedure and allowance of

wills.

Except for the first and last requirements, the petitioner submitted all theneeded evidence.


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The necessity of presenting evidence on the foreign laws upon whichthe probate in the foreign country is based is impelled by the fact that ourcourts cannot take judicial notice of them.

This case outlines the procedure for the reprobate of a will that wasexecuted and probated in accordance with foreign law.

Art818. Two or more persons cannot make a will jointly, or inthe same instrument, either for their reciprocal benefit or for thebenefit of a third person.

Concept of Joint and Mutual WillJoint Will – is one where the same instrument is made the will of two ormore persons and is jointly signed by them. The will contained in a singleinstrument is the will of each of the makers, and at the death of one maybe probated as his will, and be again probated at the death of the otheras the will of the latter. This is usually executed to make testamentarydispositions of joint property.

Mutual wills – the separate wills of two persons, which are reciprocal intheir provisions.

Joint and Mutual Will – is one executed jointly by two or more persons,the provisions of which are reciprocal, and which shoes on its face thatthe devisees are made one in consideration of the other.

RATIONALE FOR PROHIBITION1. A will is purely personal and unilateral act and this is defeated if

two or more persons make their wills in the same instrument.2. A will involves a gratuitous disposition of property and no one

can validly determine the extent of one’s generosity except thetestator.

3. It is contrary to the revocable character of a will; if one testatorrevokes his will by burning the instrument, the other testatorwould have no document left containing his testamentarydispositions.

4. A joint will, if mutual or reciprocal, may expose a testator toundue influence, and may even tempt one of the testators to killthe other.

5. Joint wills present an opportunity for one party, who is moredominant than the other to exercise undue influence over theother in the execution of a will resulting in a vitiation of consent

6. In terms of procedure, when the joint will is presented forprobate, it may happen that the same becomes operative withrespect to one but not with the other testator such as when oneis incapacitated and lacks testamentary capacity.

PAULA DE LA CERNA V. MANUELA REBACA-POTOT, 12SCRA 576 (1964)FACTS: In May 1939, spouses Bernabe Dela Cerna and GervasiaRebaca, executed a joint last will and testament. The joint will statedthat:

a. The two parcels of lands acquired by the spouses during theirmarriage will be given to Manuela Rebaca (niece)

b. While each of the testators is alive, he or she shall continue toenjoy the fruits (usufruct) of the aforementioned properties

Three months later, Bernabe dela Cerna died and the will was submittedto probate by Gervasia and Manuela. Upon the death of Gervasia, thewill again was submitted for probate. CFI Cebu refused the probate forbeing a void will, since it was in the nature of a joint will which wasprohibited by the Civil Code

ISSUE: WON the joint will was valid

Held: No, the joint will was only valid with respect to the properties ofBernabe.

The final decree of probate, entered in 1939 by CFI Cebu (when thetestator Bernabe died) has conclusive effect as to his last will andtestament despite the fact that the Civil Code had already decreed theinvalidity of joint wills. The error committed by the probate court was anerror of law, that should have been corrected by an appeal, but which didnot affect the jurisdiction of the probate court, nor conclusive upon itsfinal decision however erroneous.


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The probate decree in 1939 could only affect the share of the deceasedhusband, Bernabe. It could not include the disposition of the share of thewife, Gervasia, who was then still alive and over whose interest in theconjugal properties the probate court acquired no jurisdiction. This isbecause prior to the New Civil Code, a will could not be probated duringthe testator’s lifetime.

It follows that the validity of the joint will, insofar as the estate of the wifewas concerned, must be, on her death, reexamined and adjudicated denovo, since a joint will is considered a separate will of each testator.Thus, the decision of the CFI that the joint will is probated by the law iscorrect as to the participation of the deceased Gervasia as to theproperties in question.

Therefore, the undivided interest of Gervasia should pass on her deathto her heirs intestate, and not exclusively to the testamentary heir(Manuela), unless some other valid will in her favor is shown to exist, orunless is the only intestate heir of Gervasia

Art 818 prohibits the execution of joint wills, whether they be for thereciprocal benefit of the testators, or for the benefit of a third person.However, it must be noted that if a probate court erroneously admitted ajoint will to probate, the error thus committed would be considered an errorof law and not of jurisdiction. Therefore, such an error must be corrected byappeal; failing which the erroneous decision would become final.

The foregoing notwithstanding, please note that in the following case, thejoint will, while deemed operative with respect to the husband, wasconsidered void as to the wife. The issue of jurisdiction should be noted inparticular.

ATTY SEBASTIAN: Doctrine of finality of judgment – There has been afinal judgment of the probate court. The error thus committed by theprobate court was an error of law, that should have been corrected byappeal, but which did not affect the jurisdiction of the probate court, northe conclusive effect of its final decision, however erroneous. A finaljudgment rendered on a petition for the probate of a will is binding uponthe whole world

Art820. Any person of sound mind and of the age of eighteenyears or more, and not blind, deaf or dumb, and able to read andwrite, may be a witness to the execution of a will mentioned inArticle 805 of this Code.

Art821. The following are disqualified from being witnesses toa will:(1) Any person not domiciled in the Philippines;(2) Those who have been convicted of falsification of a document,perjury or false testimony.

REQUIREMENTS OF WITNESSES TO NOTARIAL WILLS1. Of sound mind2. At least 18 years of age3. Not blind, deaf or dumb, able to read and write

BASIS FOR STRINGENT QUALIFICATIONSWhen one is called to be a witness to a will, the law is more stringentbecause during the probate proceedings, a witness will have to testifyon matters material to the admission or denial of the will

Blind, deaf of dumb cannot be witness to the execution of a will sincesuch witnesses are generally required to identify the will, certify thatcertain formalities were complied with, attest to the execution of thewill, and communicate what they saw or heard during the execution ofthe will to prevent fraud. Such persons with impairments cannotcommunicate much less perceive what has transpired during theexecution of the will if their sensory faculties are impaired

A witness is also required to possess a certain level of education,intelligence and training so that there is some level of assurance thatthe witness will be credible and reliable and that his account of whatwent on is both accurate and true.

DISQUALIFICATION UNDER ART 8211. Any person not domiciled in the Philippines

– Mere residence is not enough; the term “domicile” is to beunderstood as defined in Art 50, which is the habitualresidence of a person


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o No particular citizenship is required for witnesses towills. As such, foreigners may be witnesses, providedthey are domiciled in the Philippines

o When the will is executed in a foreign country, it is notrequired that the witnesses be domiciled in thePhilippines since the purpose of such requirement isnot served

PURPOSE: The purpose of this requirement is forconvenience so that such witness can be within the reach ofthe compulsory processes of the court, particularly subpoena.If the witnesses to a will are non-residents of the Philippines,the court cannot issue subpoenas to compel them to attend ahearing and testify in court because subpoena is territorial inits effect.

2. Those who have been convicted offalsification of a document, perjury offalse testimony – It is presumed that such a witnesscannot be relied upon for truthfulness. The law qualifies thewitnesses so that the issue of competence and credibility donot arise. Conviction for any other crime, however, is not adisqualification.

COMPETENT WITNESS DISTINGUISHED FROM CREDIBLEWITNESSCompetence is determined by the Rules of Court. A person iscompetent if he possesses all organs of perception and, at the sametime, not legally impaired since such person can perceive andcommunicate that perception to another. Credibility, on the otherhand, is the sum total of a person’s character or traits and person’sgeneral reputation as member of the community which all point outthat such person can be believed. However, credibility is notquantifiable. Thus, credibility is always directed to the sounddiscretion of the court who is to receive the evidence.Art 805 NCC requires that the witnesses be “credible” or competent;that is one who is qualified to testify in court, not disqualified by anynatural, moral or legal cause. (Tolentino, p.123)

NOTE: Failure to comply with all the requirements do not mean thatthe will cannot be allowed for probate, it simply means that it will bemore difficult for the will to be allowed for probate.

ACKNOWLEDGING OFFICER AS WITNESSThe notary public before whom the will is acknowledged cannot beconsidered as a third instrumental witness since he cannotacknowledge before himself his having signed the will. A notary publiccannot split his personality into two so that one will appear before theother to acknowledge his participation in the making of the will; thiswould place him in an inconsistent position (See Cruz v. Villasor)

CASE: GONZALES V. CA, 90 SCRA 187 (1979)FACTS: Gabriel died a widow. Santos, a niece of the deceased wholived with her prior to the time of her death, filed for a petition for theprobate of her will. The three instrumental witnesses of the willincluded a family driver, a housekeeper, and a piano teacher. Thepetition as opposed by Rizalina Gonzales, one of the nieces named inthe will, who contends that the will was not executed and attested asrequired by law as there was absolutely no proof that the 3instrumental witnesses were credible witnesses, there must beevidence on record that the witness has a good standing in hiscommunity, or that he is honest and upright, and reputed to betrustworthy and reliable. She alleged that “credible” is notsynonymous with “competent”

ISSUE: WON the witnesses are credit witnesses as required underArt 805

HELD: Yes. Art 820 NCC provides the qualification for the witness tothe execution of the will while Art 821 sets forth the disqualification.Under the law, there is no mandatory requirement that the witnesstestify initially or at any time during the trail as to his good standing inthe community, his reputation for trustworthiness and reliability, hishonesty and uprightness in order that his testimony may be believedand accepted by the trial court. It is enough that the qualifications inArt 820 are complied with, such that soundness of his mind can beshown or deduced from his answers to the questions propounded tohim that his age is shown from his appearance, testimony, as well as


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that he is not blind, deaf or dumb, that he is able to reqad or write,and that he has none of the disqualification in Art 821. The term“credible” as used in Art 805 should not be given the same meaning ithas under the Naturalization law in that the witnesses must prove theirgood standing and reputation. In probate proceedings, unlike inpetitions for naturalization, the instrumental witnesses are notcharacter witnesses for they merely attest to the execution of a will,and affirm the formalities attendant to said execution. The relation ofthe beneficiary of the will to the testator does not disqualify one to bea witness. The main qualification of a witness in the attestation ofwills, if other qualifications as to age, mental capacity and literacy arepresent, is that the said witness must be credible i.e., his testimonymay be entitled to credence. In a strict sense, the competency of aperson to be an instrumental witness to a will is determined by Art 820and 821, whereas his credibility depends on the appreciation of histestimony and arises from the belief and conclusion of the court thatsaid witness is telling the truth.

Art 805 requires the notarial will to be attested by at least three crediblewitnesses. Art 820 prescribes the qualifications of a witness, while Art 821enumerates the disqualifications. Thus, an issue arises as to whether or not awitness competent under Arts 820 and 821 is necessarily credible asrequired by Art 805. Gonzales makes a distinction between a competentwitness and a credible witness. Furthermore, Gonzales stresses thatcompetence may be proved or inferred; whereas, credibility, which is amatter to be determined by the court, is presumed unless evidence to thecontrary is presented.

Art822. If the witnesses attesting the execution of a will arecompetent at the time of attesting, their becoming subsequentlyincompetent shall not prevent the allowance of the will.

A person is supposed to possess all the qualifications and none of thedisqualification at the time he is to become a witness to the executionof the will. Subsequent incapacity of the witness will not invalidate thewill because his competence is determined at the time of the executionof the will. However, it may impair or prejudice a witness’ credibilityas a witness if he subsequently commits a crime enumerated in Art821 NCC.

Art823. If a person attests the execution of a will, to whom or towhose spouse, or parent, or child, a devise or legacy is given bysuch will, such devise or legacy shall, so far only as concerns suchperson, or spouse, or parent, or child of such person, or any oneclaiming under such person or spouse, or parent, or child, bevoid, unless there are three other competent witnesses to suchwill. However, such person so attesting shall be admitted as awitness as if such devise or legacy had not been made or given.

Art 823 does not disqualify a devisee, legatee, or the spouse, parentor child of such devisee or legatee, from becoming witness to a will. Ifhe is credible and not disqualified under Art 821, he is a competentwitness. BUT the devise or legacy in his favor, or in favor of hisspouse, parent or child, will be VOID. Hence, Art 823 does not refer todisqualification to be a witness but a disqualification to inherit. Thedisqualification is intended to apply to one succeeding by will, and it isnot material in what concept he succeeds. This is also based on therule on relative incapacity under Art 1027(4) which makes nodistinction between heirs and devisees or legatees.

PERSONS DISQUALIFIED UNDER ART 8231. Any person who is a witness to and at the

same time, is an heir, devisee or legateein the same will

2. Also included are the spouse of the witness(if there is already a legal separation, the witness-spouse canbe a witness even if the heir-spouse is to be a beneficiary asthe property regime is already extinguished); parent ofwitness; child of the witness; any personclaiming against the witness, his spouse,parent or child

RATIONALE FOR THE DISQUALIFICATION1. As to the witness, his spouse, parent or

child – Under the situation envisioned by Art 823, suchwitness or their above-mentioned relatives will consciously orunconsciously give a false testimony to protect is interest;otherwise he will not be able to inherit.


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2. As to persons claiming under the witness,his spouse or child – A 3rd person who is to receivea benefit from the witness-heir, the spouse, parent or child orsuch witness-heir, is also disqualified since such 3rd person willdefinitely give a favorable testimony since it will benefit himindirectly

EXCEPTION TO THE DISQUALIFICATIONIf there is a substitute witness (4th witness) since the beneficiary doesnot have to testify.

Art1027. The following are incapable of succeeding:X X X(4) Any attesting witness to the execution of a will, the spouse,parents, or children, or any one claiming under such witness,spouse, parents, or children

ART 823 AND 1027 PAR 4 DISTINGUISHEDART 823 ART 1027 PAR 4

A witness cannot be abeneficiary in the will

Same

The gift is declared void and forwhich reason the witness cannotreceive it

Nothing is said about the gift butthe witness cannot receive it

Nullity is lifted if there is a 4th

witnessNullity is not lifted even if there isa 4th witness

There is no conflict between Art 823 and 1027 par 4. Art 823 rendersthe disposition void in favor of the attesting witness while Art 1027renders the witness incapacitated to inherit. However, if there are atleast 3 other witnesses other than the heir instituted, such witness canstill testify since the possibility of having a tainted testimony will nolonger be present. Art 823 speaks of the qualifications ordisqualifications of witnesses while Art 1027 speaks of capacity tosucceed.

Art824. A mere charge on the estate of the testator for thepayment of debts due at the time of the testator's death does notprevent his creditors from being competent witnesses to his will.

The charge referred to in Art 824 is a debt of the estate of the testatorwhich will be paid even without a provision in the will during theliquidation of the estate. However, if the creditor receives part of theestate as an heir, legatee or devisee, and at the same time, he is awitness to such will, he is disqualified to inherit based on theprohibition in Art 823.

Art825. A codicil is supplement or addition to a will, made afterthe execution of a will and annexed to be taken as a part thereof,by which disposition made in the original will is explained, addedto, or altered.

Art826. In order that a codicil may be effective, it shall beexecuted as in the case of a will.

CODICIL – a supplement or addition to a will, made after theexecution of a will and annexed to be taken as part thereof, by whichany disposition made in the original may be explained, or added to, oraltered. If a subsequent instrument explains the original will, or altersor adds to it, then it is a codicil. But if a later instrument makesdispositions independent of those in the original will, withoutexplaining or modifying such original will, then it is a new will

REQUISITES OF A VALID CODICIL1. It is a supplement or addition to a will2. It is made after the execution of the will3. It is to be annexed and taken as part thereof4. It explains, adds or alters the original will5. It must be executed following the formalities of a will

EFFECTS OF THE EXECUTION OF A CODICILWhile treated as an independent document, a codicil also serves as asupplement or an annex to the will itself; hence, any codicil executedbefore a will is invalid.


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Art827. If a will, executed as required by this Code,incorporates into itself by reference any document or paper, suchdocument or paper shall not be considered a part of the willunless the following requisites are present:

(1) The document or paper referred to in the will must be inexistence at the time of the execution of the will;(2) The will must clearly describe and identify the same, statingamong other things the number of pages thereof;(3) It must be identified by clear and satisfactory proof as thedocument or paper referred to therein; and(4) It must be signed by the testator and the witnesses on eachand every page, except in case of voluminous books of account orinventories.

Incorporation by reference is an exception to the rule that if aninstrument is not executed with all the formalities of a will it cannot beadmitted to probate. If a will duly executed and witnessed accordingto the requirements of the law, incorporates in itself by reference anydocument or paper not so executed and witnessed, whether suchpaper referred to be in the form of a will or codicil, or of a deed orindenture, or of a mere list or memorandum, the paper so referred to,if it was in existence at the time of the execution of the will and isidentified by clear and satisfactory proof as the paper referred therein,will take effect as part of the will and be admitted to probate as such.

To establish that it is a part of a will by incorporation, in the will:1. There must be a distinct reference so such writing2. The reference must indicate that the writing was already made

before the execution of the will3. It clearly appears from the face of the will to have been the

wish of the testator

REQUISITES FOR INCORPORATION BY INFERENCE1. The document or paper referred to exists at the time of the

execution of the will (need not be stated in the will itself)2. The will must clearly describe and identify the document i.e.,

the number of pages thereof, its title and/or its nature (clearidentification in the will)

3. The document referred to must be identified by clear andsatisfactory proof as being the document referred to in the will(to substantiate the authenticity of the document referred to inthe will)

4. The required signature of the testator and witnesses on everypage of the document EXCEPTION: voluminous books ofaccount or inventories (to prevent insertion or deletion ofpages)

D. REVOCATION OF WILLS

Art828. A will may be revoked by the testator at any timebefore his death. Any waiver or restriction of this right is void.

REVOCATION BY OPERATION OF LAWRevocation is an inseparable quality of every will since wills by theirnature are ambulatory (they can be revoked anytime during thelifetime of the testator) and inoperative until the death of the testator.Moreover, the dispositions in a will are acts of liberality since there isno consideration given. Hence, there is no contractual obligation onthe part of the testator to be bound by his original testament. Anyprovision in the instrument declaring the will irrevocable is void.

A will may be revoked at pleasure. Revocation is an act of the mind,terminating the potential capacity of the will to operate at the death ofthe testator, manifested by some outward and visible act.

REVOCATION AND NULLITY DISTINGUISHEDBoth revocation and nullity of wills have the common purpose ofdepriving a last will of legal effect. But they differ in the following:

REVOCATION NULLITYRevocation is by act of thetestator

Nullity proceeds from law

Revocation presupposes a validact

Nullity is inherent in thetestament, be it an intrinsic orextrinsic effect

Revocation takes place duringthe lifetime of the testator

Nullity is invoked after the deathof the testator by his intestate orcompulsory heirs


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The testator cannot renouncethe right to revoke

The nullity of a will can bedisregarded by the heirs throughvoluntary compliance therewith

Art829. A revocation done outside the Philippines, by a personwho does not have his domicile in this country, is valid when it isdone according to the law of the place where the will was made,or according to the law of the place in which the testator had hisdomicile at the time; and if the revocation takes place in thiscountry, when it is in accordance with the provisions of this Code.

CONFLICTS RULES IN REVOCATION1. If the act of revocation takes place in the Philippines, it is

essential that it must be done in accordance with the laws ofthe Philippines. This applies whether the testator is domiciledin this country or in some other country

2. If the revocation takes place outside the Philippines, by atestator who is domiciled in the Philippines, it is essential thatit must be done in accordance with the laws of the Philippines

3. If the revocation takes place outside the Philippines, by atestator who is not domiciled in the Philippines, it is essentialthat it must be done either in accordance with the laws of theplace where the testator had his domicile at the time of therevocation or the law of the place where the will was made.

Art830. No will shall be revoked except in the following cases:(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided incase of wills; or

(3) By burning, tearing, cancelling, or obliterating the will withthe intention of revoking it, by the testator himself, or by someother person in his presence, and by his express direction. Ifburned, torn, cancelled, or obliterated by some other person,without the express direction of the testator, the will may still beestablished, and the estate distributed in accordance therewith, ifits contents, and due execution, and the fact of its unauthorized

destruction, cancellation, or obliteration are establishedaccording to the Rules of Court.

There is revocation by implication of law when certain acts or eventstake place subsequent to the making of a will, which nullify or renderinoperative either the will itself or some testamentary disposition.

No provision of law actually revokes an entire will. Only specificprovisions in the will may be revoked by implication of law. Thefollowing are examples which revoke certain dispositions in the will byoperation of law:

1. Art 957 regarding the nullity of legacies or devises bytransformation, alienation, or loss of the subject matter of thelegacy or devise

2. Art 1032 regarding the incapacity of certain individuals tosucceed by reason of unworthiness such as abandonment orcorruption of children, conviction of an attempt against the lifeof the testator, false accusation of a crime for which the lawprescribes imprisonment for 6 years or more, those personswho should cause the testator to make a will or to change onealready made through fraud, violence, intimidation, or undueinfluence, and those persons who shall forge a supposed will ofthe decedent

3. Art 936 in relation to Art 935 concerning the legacies ofremission against third persons. The legacy of credit orremission of a debt shall lapse if the testator, after havingmade it should bring an action against the debtor for thepayment of his debt, even if such payment should not haveeffected at the time of his death

4. Art 854 regarding preterition which shall annul the institutionof an heir, but the devises and legacies shall be valid insofar asthey are not inofficious

5. Art 83(4) FC where a decree of legal separation shall disqualifythe offending spouse from inheriting from an innocent spouseby intestate or even by testamentary succession


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6. Art 43(5) FC where the termination of the subsequentmarriage shall disqualify the spouse who contracted thesubsequent marriage in bad faith to inherit from the innocentspouse by testamentary and intestate succession

7. Art 44 FC in cases where both spouses of the subsequentmarriage acted in bad faith, all donations by reason ofmarriage and testamentary disposition made by one in favor ofthe other are revoked by operation of law. Furthermore, Art50 FC reiterates the disqualification to inherit in cases ofmarriages which are declared void ab initio or annulled by finaljudgment under Art 40 and 45.

REVOCATION BY THE EXECUTION OF A SUBSEQUENTDOCUMENTIn order that a former will may be revoked by a subsequent will, it isnecessary that the latter will should be valid and executed with theformalities required for the making of wills. The subsequent willcontaining a clause revoking a previous will should be probated andthat there is such relation between the revocatory clause and the willthat contains it. (Tolentino, p. 132)

1. Express Revocation – When the revoking document, willor codicil has an express provision (revocatory clause) whichrevokes the previous one. Express revocation may be madeconditional upon a future event, e.g. when one who has made2 wills executed another instrument in which he provided thatif he should live 3 months one should be his will, if he diedbefore that time, the other

2. Implied Revocation – When the revoking document orwill contains provisions or dispositions which are inconsistentwith those of a previous will such tha thte later provision is theone given effect. The changes in the later document indicate achange of mind of the testator which must be given effect

REVOCATION BY OVERT ACTSThe requirements to have a valid revocation by overt acts are:

1. Testamentary capacity of the testator atthe time of the revocation – Testamentary capacityis required at the time of the revocation of the will to insure

the intelligence of the act considering that revocation partakesof a the nature of a property disposition which prevents thosepersons stated in the will to receive properties from thetestator. Consequently, if an insane testator destroys his will,it must be affirmatively shown that he did so during a lucidinterval; otherwise the revocation is of no effect.

2. Overt acts –The overt acts of revocation are the burning,tearing, cancelling, and obliterating of a will. The mentalprocess or intent to revoke must concur with the physical factor actual destruction of the will

3. Completion of the subjective phase of theact – The act of revocation must be complete in the mind ofthe testator by presenting proof of circumstances to show thatthe testator already believed that the will was already revokedby his overt acts event though his acts did not result to theintended revocation. The act of destruction is consideredcomplete and the intention to revoke carried out, if the willbears on its face any evidence of the act. But a slightdestruction in itself is to sufficient to work revocation unlessthere is other evidence to show the intention to revoke; ifthere is no animus revocandi the will stands.

However, if the complete destruction of the will is preventedby a third person and not to a change of intention on the partof the testator, the will is already considered revoked(Tolentino, p. 134)

4. Intent to revoke or Animus revocandi – Intentalone is not enough. Any of the acts enumerated in law mustappear to have been done.

PRESUMPTION OF REVOCATIONWhen the will was last found to be in the possession of the testatorand the same can no longer be found despite diligent search, then thewill is considered revoked.

CASES:GAGO V. MAMUYAC, 49 PHIL 902 (1927)

FACTS: The testator Miguel Mamuyac died on January 2, 1922.Within the same month, Gago presented to court a will supposed to


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have been executed by the testator on July 27, 1918. The will wasnot admitted on the ground that the testator had, on April 16, 1919,executed a new will and testament. Gago then petitioned for theprobate of the 2nd will which was denied again by the court on theground that the same will had been revoked by the testator astestified by Fenoy, the person who typed the will and Bejar, to whoma house and lot in the 1919 will was sold to.

Another witness testified that the 1919 will was in the possession ofthe testator but could not be found after his death. It was alsosuccessfully established that another will was executed in 1920. The1919 will presented was found by the lower court to be a merecarbon copy of the original.

ISSUE: WON the 1919 will was cancelled

HELD: Yes. The law does not require any evidence of the revocation orcancellation of a will to be preserved. It therefore becomes difficult attimes to prove the revocation or cancellation of wills. The fact that suchcancellation or revocation has taken place must either remain unprovedor be inferred from evidence showing that after due search the originalwill cannot be found. Where a will which cannot be found is shown tohave been in the possession of the testator, when last seen, thepresumption is, in the absence of other competent evidence, thatthe same was cancelled or destroyed. The same presumption ariseswhere it is shown that the testator had ready access to the will andit cannot be found after his death. It will not be presumed that such willhas been destroyed by any other person without the knowledge orauthority of the testator. The force of the presumption of cancellation orrevocation by the testator, while varying greatly, being weak or strongaccording to the circumstances, is never conclusive, but may beovercome by proof that the will was not destroyed by the testator withintent to revoke it.

CAB: The fact that the original 1919 will could not be found after thedeath of the testator Miguel Mamuyac and in view of the positive proofthat the same had been cancelled, the Court concluded that theconclusions of the lower court are in accordance with the weight of theevidence. In a proceeding to probate a will the burden of proofs is uponthe proponent clearly to establish not only its execution but its existence.

Having proved its execution by the proponents, the burden is on thecontestant to show that it has been revoked. In a great majority ofinstances in which wills are destroyed for the purpose of revoking themthere is no witness to the act of cancellation or destruction and allevidence of its cancellation perishes with the testator. Copies of willsshould be admitted by the courts with great caution. When it is proven,however, by proper testimony that a will was executed in duplicate andeach copy was executed with all the formalities and requirements of thelaw, then the duplicate may be admitted in evidence when it is made toappear that the original has been lost and was not cancelled ordestroyed by the testator.

A will being essentially ambulatory, it may be revoked at any time by thetestator at any time prior to his death. Article 830 enumerates the modes ofrevocation. Gago holds that a revocation of the will may be implied if thetestator in his lifetime had ready access to the same, and that after his deaththe will cannot be found. The presumption, while disputable, may bereinforced by testimony regarding the circumstances of the allegedrevocation of the will. And if the presumption of revocation should apply, aduplicate copy of the said will cannot be admitted to probate.

TESTATE OF ADRIANA MALOTO V. CA, 158 SCRA 451(1988)FACTS: Adriana Maloto was initially believed to have died without a willso an intestate proceeding was commenced by her heirs, niece andnephew. During the pendency of this action, said heirs decided to extra-judicially settle the estate of Adriana by dividing it into 4 equal partsamong themselves, which was approved by the court. However, 3 yearsafter said extrajudicial settlement, a document purporting to be the lastwill and testament of Adriana was discovered. In said will, all 4 heirswere instituted as heirs but 2 of them were bequeathed bigger and morevaluable shares than they earlier executed. The will also have devisesand legacies to other parties.

In the petition for probate of the discovered will of Adriana, the trial courtrule that the said will had already been revoked by the testatrix based onthe testimony of Adriana’s househelp that she burned said will on theinstructions of the testatrix. Thus, the trial court denied the petition for


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probate. On appeal, CA although having found contradictions in theallegation of the revocation of the will by burning, found animusrevocandi in the destruction of the will to be present

ISSUE: WON the will of Adriana had been effectively revoked

HELD: No. It is clear that the physical act of destruction of a will, likeburning in this case, does not per se constitute an effective revocation,unless the destruction was coupled with animus revocandi on the part ofthe testator. It is not imperative that the physical destruction be done bythe testator himself. It may be performed by another person but underthe express direction and in the presence of the testator. Of course, itgoes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may beconceded, for that is a state of mind, yet that requisite alone would notsuffice. Animus revocandi is only one of the necessary elements for theeffective revocation of a last will and testament. The intention to revokemust be accompanied by the overt physical act of burning, tearing,obliterating or cancelling the will carried out by the testator or by anotherperson in his presence and under his express direction. The document orpaper burned by the househelp was not satisfactorily established to be awill at all, much less the will of Adriana. The burning was also not provento be under the express direction of Adriana and in her presence. Thecourt entered for the allowance of Adriana Maloto’s last will andtestament.

The burning of a will is one of the modes of revocation. Under Art 830,the act of destroying the document must be done by the testator himselfand if done by a third person, it must be executed pursuant to thetestator’s express direction and in his presence. Maloto reversed the CAwhich upheld the revocation of the will on the basis of sufficient proof ofanimus revocandi on the part of the testator. While there are variousrequisites for the validity of a revocation by means of an overt act (whichrequisites were not discussed in Maloto), this case holds that if a thirdperson executed the overt act of destroying the will, the same must beupon the express direction of the testator and his presence. Bothrequisites must be duly proved, otherwise evidence intended to establishthe due execution and the contents of the destroyed will might beadmissible. If the due execution and the contents of the destroyed will is

sufficiently established, the will may be admitted to probate as a whichhad been invalidly revoked.

Art831. Subsequent wills which do not revoke the previous onesin an express manner, annul only such dispositions in the priorwills as are inconsistent with or contrary to those contained inthe latter wills.

IRRECONCILABLE INCONSISTENCIESThere must be two documents because implied revocation is based onirreconcilable inconsistencies. If there are simple inconsistencies, itdoes not necessarily equate to an implied revocation, since theprovisions may still be reconciled. In case there can be no effectivereconciliation of the conflicting dispositions, the later expression willprevail on the basis of the presumption that there is a change of mindon the part of the testator.

Art832. A revocation made in a subsequent will shall takeeffect, even if the new will should become inoperative by reasonof the incapacity of the heirs, devisees or legatees designatedtherein, or by their renunciation.

DEPENDENT RELATIVE REVOCATIONThe subsequent will shall only revoke the old will if it is admitted toprobate. The validity of the later will is a condition for the revocation ofan old one. There is such a relation between the revocatory clause andthe will which contains it, that if the will does not produce legal effects,because it has not been executed in accordance with the provisions oflaw, neither would the revocatory clause therein produce legal effects.Thus, the codicil must first be admitted to probate in order for therevocation to take effect. Stated otherwise, the revocation of the firstwill is dependent on the validity and the admission to probate of thesecond will.

ATTY SEBASTIAN: THEORY OF DEPENDENT RELATIVEPROBATION – subsequent will is only effective if it is admitted toprobate, otherwise the prior will is admissible to probate (Art 832)


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Art833. A revocation of a will based on a false cause or anillegal cause is null and void.

FALSITY OF CAUSEThis article states an aspect of the doctrine of dependent relativerevocation in Art 832. If the act of revocation is induced by a beliefwhich turns out to be false, there is no revocation. The fact, withregard to which the mistake was made, must however appear uponthe face of the instrument. Parol evidence is not competent to provethat a revocation unconditional on its face was induced by a falseassumption of fact or law.

But the revocation would be operative if it appears that the testatoronly alleged the belief as a reason for revoking, intending the will torevoke absolute, whether such belief were true or false. And if therevocation be made dependent merely upon information received bythe testator, or upon his opinion, the revocation is valid although thetestator may have been misinformed, or may have formed his opinionunder a misapprehension. But where the facts alleged by the testatorwere peculiarly within his knowledge, or the testator must have knownthe truth of the facts alleged by him, it does not matter whether theyare true or not; the revocation in such case is absolute.

ATTY SEBASTIAN: For Art 833 to apply, the false cause must beEXPRESSLY stated in the subsequent will, because of Parol EvidenceRule

Art834. The recognition of an illegitimate child does not lose itslegal effect, even though the will wherein it was made should berevoked.

RATIO: The recognition does not lose its legal effect even if the will isrevoked, because the recognition is not a testamentary disposition.Thus, the recognized natural child can demand his rights even if thewill is revoked.

E. REPUBLICATION AND REVIVAL OF WILLS

Art835. The testator cannot republish, without reproducing in asubsequent will, the dispositions contained in a previous onewhich is void as to its form.

Art836. The execution of a codicil referring to a previous willhas the effect of republishing the will as modified by the codicil.

REPUBLICATION – a method by which the testator restores tovalidity as his will an instrument formerly executed by him as his willwhich was originally invalid for want of proper execution

TYPES OF REPUBLICATION1. Express Republication or Re-execution – A will

which is void as to form may be republished through re-execution, i.e. the whole document must be re-written

o Presence of revocatory clause; there is a clear andexpress statement that the testator is revoking hisprior will

o Revival does NOT applyPurpose:

a. To revoke any will the testator may have written butsubsequently forgotten

b. To prevent anyone from introducing a fake will

2. Implied Republication or Republication byReference – A will which is valid as to form but void as toother aspects, may be republished by republication byreference, i.e. the execution of a codicil which containssufficient reference to the previous will

o See for example, Kalaw v. Relovao There is irreconcilable inconsistencies (X cannot give to

Y what was bequeathed to Z)


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o Whichever is the latest expression of the testatorprevails

o Dispositions must be irreconcilable – there is no way ofmaking them both operative (cannot give effect toboth wills simultaneously)a. Complete Revocation – when the subsequent will is

irreconcilable with the entire previous willb. Partial revocation – when the subsequent will is

only irreconcilable with certain specific dispositionsof the prior will

o When a will is revoked or repealed according to theprovisions of the law = will dies (becomes invalid)

Under Art 836, a duly executed codicil operates as a republication ofthe original will and makes it speak from the date of the codicil evenwhen the original will is only referred to in the codicil while under Art835, a will void as to its form cannot be republished by merereference, but must be reproduced in the subsequent instrument. Art836 must be considered as the general rule, and Art 835 as theexception. Reproduction in the codicil is required only when theoriginal will is void as to its form; in all other cases, reference to theoriginal will suffices to republish it through the codicil. Thus, a codicilmay republish and validate a will which was originally void for want oftestamentary capacity or on account of undue influence upon thetestator.

EFFECT OF REPUBLICATIONThe republished will shall speak as of date of republication and shall begoverned by the formalities required by law at the time of therepublication.

Can a revoked will be resurrected? REVIVAL ANDREPUBLICATION OF WILLS

1. Republication – one of the modes of bringing back to life awill that has been revoked or a will that has lost its validity

Publish – to make knowna. Republication by reference – a will which is valid as

to form but the testator wishes to bring back toeffect again by writing a codicil

o Handwritten and dated – e.g., I herebyrepublish my earlier will dated ____

b. Republication by re-execution – if the will is void asto form, it has to be re-executed

2. Revival of wills – if the prior will is implicitly revoked bysubsequent willo Applies only to implicit revocationo E.g., will#1 all to X; will#2 all to Y; both wills valid as to

form. If will #2 is revoked, will#1 is revived. If will#2 ismore recent, it supersedes will#1. Will#2 can be revokedby overt act of destroying will#2

Art837. If after making a will, the testator makes a second willexpressly revoking the first, the revocation of the second will doesnot revive the first will, which can be revived only by another willor codicil.

Republication takes place by an act of the testator, while revival takesplace by operation of law. Republication can apply to wills which wereexpressly and impliedly revoked, while revival can apply only toimpliedly revoked wills.

EXAMPLE: X was named the universal heir in will #1. Testator laterchanged his mind and makes Y the new universal heir in will #2. If thetestator revokes will #2 by a new will or by an overt act then will #1will be revived. But if will #2 expressly revokes will #1, then will #1will not be revived even if will #2 is subsequently revoked becauserevival takes place only if there is implied revocation.

F. ALLOWANCE AND DISALLOWANCE OF WILLS

Art. 838. No will shall pass either real or personal propertyunless it is proved and allowed in accordance with the Rules ofCourt.

The testator himself may, during his lifetime, petition the courthaving jurisdiction for the allowance of his will. In such case, thepertinent provisions of the Rules of Court for the allowance ofwills after the testator's a death shall govern.


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The Supreme Court shall formulate such additional Rules ofCourt as may be necessary for the allowance of wills on petitionof the testator.

Subject to the right of appeal, the allowance of the will, eitherduring the lifetime of the testator or after his death, shall beconclusive as to its due execution.

Art. 839. The will shall be disallowed in any of the followingcases:(1) If the formalities required by law have not been compliedwith;

(2) If the testator was insane, or otherwise mentally incapable ofmaking a will, at the time of its execution;

(3) If it was executed through force or under duress, or theinfluence of fear, or threats;(4) If it was procured by undue and improper pressure andinfluence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that theinstrument he signed should be his will at the time of affixing hissignature thereto.

PROBATION – a special proceeding for establishing the validity of awill. It seeks to prove that the instrument submitted is the will of thetestator, that it was executed according to the formalities prescribedby law, and that the testator had testamentary capacity at the time ofthe execution. Probate proceedings are in the nature of a proceedingin rem, i.e. the decree of probate is binding on all persons in interestwhether they appear to contest the will or not. No will shall pass either real or personal property unless it is

proved and allowed in accordance with the Rules of Court (Art.838)

The procedure to be followed is that which is provided for in theNew Rules of Court.

KINDS:1. Ante Mortem – The testator tests the validity of his will

before the probate court DURING his lifetime (NCC innovation)2. Post Mortem – The probate proceedings are held AFTER

the death of the testator

ADVANTAGES OF ANTE-MORTEM PROBATE1. Fraud, intimidation and undue influence are minimized because

the courts will have an easier time determining the mentalcondition of the testator while he is alive.

2. If the will does not comply with the requirements of law, it canbe corrected immediately

3. If probated during the lifetime of the testator, the onlyquestion left after his death is the intrinsic validity of thedispositions

NECESSITY FOR PROBATE: Certain safeguards must be in place toprevent forgery and other acts of unscrupulous individuals and toinsure that the testator understood and meant what he placed in thewill.

QUESTIONS TO BE DETERMINED BY THE PROBATECOURTThe jurisdiction of the probate court is limited to the following issues

1. Question of Identity – Whether the instrument offeredfor probate is the last will and testament of the decedent

2. Question of Due Execution – Whether the will wasexecuted according to the formalities required by law

3. Question of Testamentary Capacity – Whether thetestator had testamentary capacity at the time of execution

EXCEPTION: For practical considerations: In Nuguid v. Nuguid (GR NO. L-23445, June 23, 1966), the

Supreme Court held that, if the case were to be remanded forprobate of the will, nothing will be gained. On the contrary, thislitigation would be protracted. And for aught that appears in therecord, in the event of probate or if the court rejects the will,


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probability exists that the case will come up once again before uson the same issue of the intrinsic validity or nullity of the will.

RESULT: waste of time, effort, expense, plus added anxiety.

In Nepomuceno v. CA (GR No. L-62952 , October 9, 1985), theCourt held that “the court can inquire as to the intrinsic validityof the will because there was an express statement that thebeneficiary was a mistress.”

Note: Criminal action will NOT lie against the forger of a will whichhad been duly admitted to probate by a court of competent jurisdiction(Mercado v. Santos, GR No. 45629, September 22, 1938).

The fact that the will has been allowed without opposition andthe order allowing the same has become final and executory isnot a bar to the presentation of a codicil provided it complieswith all the formalities for executing a will. It is not necessarythat the will and codicil be probated together as the codicil maybe concealed by an interested party. They may be probated oneafter the other (Macam v. Gatmaitan, GR No. 40445, August 17,1934).

When a will is declared void because it has not been executed inaccordance with the formalities required by law, but one of theintestate heirs, after the settlement of the debts of thedeceased, pays a legacy in compliance with a clause in thedefective will, the payment is effective and irrevocable.

STAGES OF PROBATE PROCEEDING1. Probate – Where the court determines the existence of

testamentary capacity, due execution and identity of theinstrument with that of the testator’s will. (Extrinsic validity ofthe will)

2. Distribution – Where the will must be enforced in accordanceto the provisions of the will so long as it does not violate thelaw, especially the provisions on legitime and qualifications ofthe beneficiary to succeed. (Intrinsic validity of the will)

NOTES:The statute of limitations is not applicable to probate of wills.(Imprescriptibility of Probate)

RATIONALE: Probate proceeding are not established in the interest ofthe surviving heirs, but primarily for the protection of the expressedwishes of the testator.

It is true that the rights of the parties should not be left hanging inuncertainty for periods in excess of the maximum period of ten yearsallowed by law, but the remedy is the other interested person either:

1. To petition for the production of the will and for itsprobate;

2. To inflict upon the guilty party the penalties prescribedby Rule 75 of the Rules of Court; or

3. To declare the unworthiness of the heir under Art.1032 of the Civil Code for the concealing orsuppressing the will. (Guevarra v. Guevarra, GR No.5405, January 31, 1956).

ORDINARY ACTION AND SPECIAL PROCEEDINGDISTINGUISHED

ORDINARY ACTION SPECIAL PROCEEDINGSeeks to address a wrong or theviolation of a right

Seeks to establish a right, statusor fact

Adversarial in nature Non-adversarialThe party who establishes apreponderance of evidence in hisfavor is considered the victor

There is actually no true winnerbetween the parties

EFFECT OF ALLOWANCE OF WILLA judgment or decree of a court with jurisdiction to probate a will is:

1. Conclusive as to the validity of the will2. Not subject to collateral attack but stands as final, if not

modified, set aside, or revoked by a direct proceeding, orreversed on appeal to the higher court

3. Conclusive to the whole world (in rem proceeding)

INSTANCES WHEN ALLOWANCE MAY BE SET ASIDEGENERAL RULE: Since a proceeding for the probate of a will isessentially one in rem a judgment allowing a will shall be conclusive asto its due execution.

EXCEPTIONS:1. By means of an appeal2. By means of a petition for relief from judgment by reason of fraud,

accident, mistake, or excusable negligence


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3. By means of a petition to set aside the judgment by reason of lackof jurisdiction or lack of procedural due process

4. By means of an action to annul judgment by reason of extrinsic orcollateral fraud (Jurado, 144)

GROUNDS FOR DISALLOWANCE OF A WILL (Art. 839)(FIFU-SM)

1. FORMALITIES required by law have not been complied with;2. Testator was INSANE, or otherwise incapable of making a will,

at the time of its execution;3. Will was executed through FORCE or under duress, or the

influence of fear, or threats;4. Will was procured by UNDUE AND IMPROPER PRESSURE and

influence, on the part of the beneficiary or of some otherperson;

5. SIGNATURE of the testator was procured by fraud;6. Testator acted by MISTAKE or did not intend that the

instrument he signed should be his will at the time of affixinghis signature thereto.

Note: List is EXCLUSIVE

Violence – when in order to compel the testator to execute the will,serious or irresistible force is employed.

Intimidation – when the testator is compelled by a reasonable and wellfounded fear of an imminent and grave evil upon his person orproperty, or upon the persons or property of his spouse, descendantsor ascendants, to execute the will. (Art. 335, CC)

Undue Influence – when a person takes improper advantage of hispower over the will of another, depriving the latter of a reasonablefreedom of choice; substituting the wishes of another for those of thetestator.

Fraud – if by misrepresentation and deception the testator is led intomaking a will different from that he would have made but for themisrepresentation and deception.

Mistake – pertains to “Mistake of Execution” which may either be:1. A mistake as to identity or character of the instrument which

he signed, or2. A mistake as to the contents of the will itself. (Jurado, p.158)

RATIFICATION With respect to a will which is void because of non-compliance

with the formalities prescribed by law, ratification is NOTpossible.

With respect to a will which was executed through violence,intimidation, undue influence, fraud or mistake, ratification ispossible. (Ibid, p. 158)

Note: Fair arguments, persuasion, appeal to emotions, and entreatieswhich, without fraud or deceit or actual coercion, compulsion orrestraint DO NOT constitute undue influence sufficient to invalidate awill (Barreto v. Reyes, GR No. L-5830, January 31, 1956).

The burden is on the person challenging the will to show thatsuch influence was exerted at the time of its execution.

To make a case of UNDUE INFLUENCE, the free agency of thetestator must be shown to have been destroyed; but toestablish a ground of contest based on FRAUD, free agency ofthe testator need not be

REVOCATION AND DISALLOWANCE DISTINGUISHEDREVOCATION DISALLOWANCE

Voluntary act of the testator Given by judicial decreeWith or without cause Must always be for a legal causeMay be partial or total Always total except when the

ground of fraud or influence forexample affects only certainportions of the will

CASES:RODRIGUEZ V. RODRIGUEZ, 642 SCRA 642 (2007)FACTS: Juanito Rodriguez was the owner of a 5-door apartment. In1983, he executed a last will and testament, giving petitionerCresenciana (his live-in partner) apartments D&E, apartment A toBenjamin (deceased husband of Evangeline), apartment B toBuenaventura and apartment C to Belen. In 1984, Juanito executed aDeed of Absolute Sale over the property to petitioner Cresenciana.

Subsequently, Cresenciana filed an action for unlawful detainer againstrespondents alleging that she as the registered owner of the property (by


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virtue of a sale executed by Juanito in her favor) and that she allowedrespondents to occupy the property out of her kindness and generositybut the latter leased the units without her consent. On the other hand,respondents claimed ownership over the subject property by successionalleging that

a. Petitioner exerted undue influence over their father to agree tothe sale of the property for only P20,000 after knowing that only2 units were given to her in the will

b. Petitioner had no cause of action since she was a party to thePartition agreement and recognized respondents as co-ownersand partitioned the property according to the provisions of thewill

ISSUE: Who has a better right to the subject property

HELD: Petitioner has a better right to the property by virtue of the saleexecuted by the testator during his lifetime in favor of petitionerCresenciana.

Respondents failed to prove their right of possession, as the Huling Habiliat Testamento and the Partition Agreement have no legal effect since thewill has not been probated. Before any will can have force or validity it mustbe probated. This cannot be dispensed with and is a matter of public policy.Art 838 NCC mandates that “no will shall pass either real or personalproperty unless it is proved and allowed in accordance with the Rules ofCourt.” As the will was not probated, the Partition Agreement which wasexecuted pursuant thereto cannot be given effect. Thus, the fact thatpetitioner was a party to said agreement becomes immaterial in thedetermination of the issue of possession.

Moreover, at the time the deed of sale was executed in favor of thepetitioner, Juanito Rodriguez remained the owner thereof since ownershipwould only pass to his heirs at the time of his death. Thus, as owner of theproperty, he had the absolute right to dispose of it during his lifetime.

Rodriguez emphasizes the need for probate of a will, as mandated in Art838 NCC. Without probate, the will is ineffective and does not producelegal effect. In this case, the Supreme Court recognized the testator’s right,during his lifetime, to sell the property which he had previously adjudicatedto his heirs in his will. In this regard, the provision of Art 957 NCCis worth

considering: “The legacy or devise shall be without effect: x x x (2) If thetestator by any title or for any cause alienates the thing bequeathed or anypart thereof, it being understood that in the latter case the legacy or deviseshall be without effect only with respect to the part thus alienated. x x x.Art 957 is one of the 7 provisions of the Civil Code and the Family Codewhich pertains to implied revocation of a testamentary disposition.

LASAM V. UMENGAN, 510 SCRA 496 (2006)FACTS: Spouses Pedro Cuntapay conveyed a parcel of land to their 2children: Irene and Isabel. It was agreed that eastern half portion shallbelong to theirs of Isabel while the west portion shall belong to heirs ofIrene.

The heirs of Rosendo Lasam (son of Isabel by her 2nd husband) filed acomplaint for unlawful detainer against Vicenta Umengant (daughter ofAbdon who is the son of Isabel by her 1st husband). Lasam alleged thatthey were the owners of the property, having inherited it from their fatherRosendo, who was the sole heir of deceased Pedro through Isabel. Onthe other hand, Umengan countered that when Isabel died, the propertywas inherited by her six children from her 1st and 2nd marriages. Each ofthe 6 children had a pro-indiviso share in the subject lot.

ISSUE: WON as between the respective claims of petitioners Lasamand respondent Umengan, the latter has a better right to possess thesubject lot

HELD: Yes. Respondent has shown a better right of possession overthe subject lot as evidenced by the deed of conveyance executed in herfavor by the children of Isabel Cuntapay by her first marriage.

Contrary to the ruling of the MTCC and RTC the purported last will andtestament of Isabel Cuntapay could not properly be relied upon toestablish petitioners’ right to possess the subject lot because, withouthaving been probated, the said last will and testament could not be thesource of any right pursuant to Art 838 NCC.

In Caniza v. Court of Appeals, the Court ruled that : “(a) will is essentiallyambulatory; at any time prior to the testator’s death, it may be changedor revoked; and until admitted to probate, it has no effect whatever andno right can be claimed thereunder, the law being quite explicit; “No will


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shall pass either real or personal property unless it is proved and allowedin accordance with the Rules of Court.”

According to Tolentino, an imminent authority on civil law, also explainedthat “before any will can have force or validity, it must be probated. Toprobate a will means to prove before some officer or tribunal, vested bylaw with authority for that purpose, that the instrument offered to beproved is the last will and testament of the deceased person whosetestamentary act it is alleged to be, and that it has been executed,attested and published as require by law, and that the testator was ofsound and disposing mind. It is a proceeding to establish the validity ofthe will.” Moreover, the presentation of the will for probate is mandatoryand is a matter of public policy.

Following the above truisms, the MTCC and RTC, therefore, erroneouslyruled that petitioners have a better right to possess the subject lot on thebasis of the purported last will and testament of Isabel Cuntapay, whichto date, has not been probated. Stated in another manner, IsabelCuntapay’s last will and testament, which has not been probated, has noeffect whatever and petitioners cannot claim any right thereunder.

Lasam emphasizes the necessity of probate. Without which, a purportedwill cannot be the source of any right and could not be relied upon toestablish the right to possession. Lasam further confirms the ambulatorynature of a will, such that at any time prior to his death, the testator maychange or revoke it.

GALLANOSA V. ARCANGEL, 83 SCRA 676 (1978)FACTS: Florentino Histosis executed a will covering 61 parcels of landin Sorsogon. His second wife Dollentas was also twice married and hada son, Pedro, by her first marriage. Florentino was childless and awidower whose surviving relative was Leon (brother). Florentino died in1939. His will provided ½ share be bequeathed to Pedro and 3 otherparcels be given to Fortajada, a minor and his protégé.

When the will was submitted for probate, Leon opposed it. A project ofpartition was submitted by said testamentary heirs and was approved bythe court in 1943. In 1952, Leon filed a case against Pedro for the

recovery of the 61 parcels of land, alleging that they and theirpredecessors had been in open and continuous possession of theproperty in the concept of an owner. Pedro moved to dismiss the actionand the trial court dismissed the case on the ground of res judicata sinceLeon never appealed the probate.

In 1967, Leon filed another case against Pedro for the “annulment” ofFlorentino’s will alleging that it was procured through fraud and deceit.

ISSUE: WON Leon has a cause of action in the instant case

HELD: No. What the plaintiff seeks is the annulment of a last will andtestament duly probated in 1939 by the lower court itself. The proceedingis coupled with an action to recover the lands adjudicated to thetestamentary heirs by the same court in 1943 by virtue of the probatedwill, which action is a resuscitation of the complaint of the same partiesthat the same court dismissed in 1952.

It is evident from the allegations of the complaint and from thedefendants’ motion to dismiss that plaintiffs’ 1967 action is barred by resjudicata. The defense of res judicata, as a ground for the dismissal ofplaintiffs’ 1967 complaint, is a two- pronged defense because (1) the1939 and 1943 decrees of probate and distribution and (2) the 1952order of dismissal of the lower court constitute bars by former judgment.

The 1939 decree of probate is conclusive as to the due execution orformal alidity of the will. After the finality of the allowance of a will, theissue as to the voluntariness its execution cannot be raised anymore. InAustria v. Ventenilla, a petition for annulment of a will was notentertained after the decree of probate had become final.

It is fundamental concept in the organization of every jural system, aprinciple of public policy that the risk of occasional errors, judgments ofcourts should become final at some definite date fixed by law. Interest reipublicae ut finis sit litum. “the very object of which the courts wereconstituted was to put an end to controversies.

Art 838 NCC requires probate as a condition precedent for the effectivityof a will. Probate is limited to a determination of two issues: one, the


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testamentary capacity of the testator, and two, the due execution of thewill. Testamentary capacity has two components: first, the soundness ofmind of the testator, and second, the requisite age. Due execution refersto the compliance with the formal requisites prescribed by law. If theproponents of the will are able to prove testamentary capacity and dueexecution, the probate judge will forthwith issue and order admitting thewill to probate. Once the probate order becomes final, the testamentarycapacity of the testator and the due execution of the will becomesincontestable. Res judicata will apply to any attempt to reopen and orrevisit the issues of testamentary capacity and due execution.

Gallanosa illustrates the inevitable result of an attempt to reopen probateproceedings long after the probate order has become final. It is importantto note the present procedural laws do not permit nor sanction theinstitution of an action for the “annulment” of a will.

MANINANG V. CA, 114 SCRA 478 (1982)FACTS: On May 21, 1977, Clemencia Aseneta, single, died at theManila Sanitarium Hospital at age 81. She left a holographic will,bequeathing her personal properties to Dr. Soledad Maninang. Maninangfiled a petition for probate in June 1977.

Respondent Bernardo Aseneta, as the adopted son, claimed to be thesole heir of the decedent instituted intestate proceedings in CFI QuezonCity. Bernardo then filed a motion to dismiss the testate case since theholographic will was null and void since he was the only compulsory heir,was preterited and therefore, intestacy should ensue.

Soledad averred that it is still the rule in the probate of the will that theCourt’s area of inquiry is limited to an examination of and resolution onthe extrinsic validity of the will, and that Bernardo was effectivelydisinherited by Clemencia.

ISSUES:1. Did the Court a quo acted in excess of its jurisdiction when it

dismissed the testate case?2. Whether under the terms of the decedent’s will, private

respondent had been preterited or disinherited and if the latter,whether it is a valid disinheritance?

HELD: Yes, the court acted in excess of its jurisdiction.1. Generally, the probate of a will is mandatory. The law enjoins

the probate of the will and public policy requires it, becauseunless the Will is probated and notice thereof given to the wholeworld, the right of a person to dispose of his property by Will maybe rendered nugatory.

2. Normally, the probate of the will does not look into its intrinsicvalidity. The only purpose of probate proceedings is todetermine if the will has been executed in accordance with therequirements of the law.

3. By virtue of the dismissal of the Testate case, the determinationof the controversial issue has not been thoroughly beenconsidered. As gathered from the decision of the trial court, itsconclusion was that Bernardo has been preterited. The SCopined however, that from the face of the Will, that conclusion isnot indubitable.

4. As held in the case of vda. dePrecilla vs. Narciso: “It is asimportant a matter of public interest that a purported will is notdenied legalization on dubious grounds. Otherwise the veryinstitution of testamentary succession will be shaken to itsfoundation.”

5. Coming now to the procedural aspect, suffice it to state that inview of our finding that respondent Judge had acted in excess ofhis jurisdiction in dismissing the Testate Case, certiorari is aproper remedy. An act done by a Probate Court in excess of itsjurisdiction may be corrected by Certiorari. And even assumingthe existence of the remedy of appeal, we harken to the rule thatin the broader interests of justice, a petition for certiorari may beentertained, particularly where appeal would not afford speedyand adequate relief.

PRETERITION DISINHERITANCEPreterition consists in theomission in the testator’s will ofthe forced heirs or anyone ofthem, either because they are notmentioned therein or thoughmentioned, they are neitherinstituted as heirs nor areexpressly disinherited

Disinheritance is a testamentarydisposition depriving anycompulsory heir of his share in thelegitime for a cause authorized bylaw


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Presumed involuntary Always voluntary

Effects: It shall annul theinstitution of heir. This isannulment is in toto, unless in thewill there are, in addition,testamentary dispositions in theform of devises or legacies (Art854)

Effects: The nullity is limited to thatportion of the estate which thedisinherited heirs have been illegallydeprived (Art 918)

While as a rule the area of inquiry of a probate court is restricted to thetwin issues of testamentary capacity and due execution, practicalconsiderations may necessitate an inquiry into substantive validity. Thisis particularly true if none of the testamentary dispositions could begiven effect and therefore, an inquiry into extrinsic validity would be awaste of time.

Nuguid v Nuguid is squarely in point. However, while much reliance onNuguid was made by the oppositor in Maninang, the same was notfavored by the court since the nullity of the testamentary dispositions inthe questioned will did not appear to be indubitable. It seems that thecourt sought a determination as to whether or not the oppositor waspreterited or disinherited under the terms of the questioned will.However, one finer point of law must be considered. While preteritioninvolves the omission of a compulsory heir in the direct line, thesupposedly preterited heir in the foregoing case is an adopted child. Itwould therefore seem that the more crucial issue is the determination asto whether or not an adopted child should be considered as a compulsoryheir in the direct line of the testator. The issue is significant because anadopted child may not have blood ties with the testator, and thereforewhether or not such adopted child is a relative in the direct line isdisputable.

SPOUSES ALVARO PASTOR JR. V. CA, 122 SCRA 885(1983)FACTS: Alvaro Pastor Sr., died on June 1966 survived by his wifeSofia, their two legitimate children (Pastor Jr. and Sofia), and anillegitimate child, Quemada. Quemada filed a petition filed a petition for

the probate of the alleged will of Pastor Sr.. the will contained only onetestamentary disposition: a legacy in favor Quemada consisting of 30%of Pastor Sr.’s 42% share in the operation of Atlas of some miningclaims. Quemada was appointed special administrator. As the specialadministrator, Quemada filed an action for reconveyance against PastorJr. and his wife regarding some properties allegedly forming part ofPastor Sr.’s estate, including the property subject of legacy.

Spouses Pastor Jr. filed their opposition to the petition for probate andthe order appointing Quemada as special administrator. However, theprobate court admitted the will to probate in 1972.

In 1980, the probate court set a hearing on the intrinsic validity of the willand required the parties to submit their position papers as to how theinheritance could divided. On August 20, 1980, while the action forreconveyance was still pending, the probate court issued an order ofexecution and garnishment, resolving the issue of ownership of theroyalties payable by Atlas and granting the legacy to Quemada.

On November 11, 1980, the probate court issued an order declaring thatthe probate order of 1972 indeed resolved the issue of ownership andthe intrinsic validity of the will reiterating its previous orders

ISSUE: WON the probate order resolved with finality the questions ofownership and intrinsic validity as stated in the November 11, 1980 order

HELD: No. In a special proceeding for the probate of a will, the issue isrestricted to the extrinsic validity of the will, i.e. whether the testator,being of sound mind, freely executed the will in accordance with theformalities prescribed by law. As a rule, the question of ownership is anextraneous matter which the probate court cannot resolve with finality.Thus, for the purpose of determining whether a certain property shouldor should not be included in the inventory of estate properties, theprobate court may pass upon the title thereto, but such determination isprovisional, not conclusive, and is subject to the final decision in aseparate action to resolve title. It was therefore erroneous for theassailed orders to conclude that the probate order adjudged with finalitythe question of ownership of the mining properties and royalties, andthat, premised on this conclusion, the dispositive portion of the said


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probate order directed the special administrator to pay the legacy indispute.

Pastor Sr., was survived by his wife and their two children as well as byan illegitimate child. There is therefore a need to liquidate the conjugalproperty and set apart the share of Pastor Sr.’s wife in the conjugalpartnership preparatory to the administration and liquidation of the estateof Pastor Sr. when the disputed probate order of 1972 was issued, therewas no liquidation of the conjugal properties of the spouses. So as ofthat date, there was no prior definitive determination of the assets of thedecedent’s estate. There was no determination, much less payment ofthe debts of the decedent.

Furthermore, there was neither assessment nor payment of the estatetax to the government. The net estate not having been determined, thelegitime of the forced heirs in concrete figures could not be determined.Thus, it was not possible to determine whether the legacy to Quemadawould produce an impairment of the legitime of the compulsory heirs.Without a final, authorative adjudication of the issue as to whatproperties compose the estate of Pastor Sr. in the face of conflictingclaims involving properties not in the name of the testator, and in theabsence of a resolution on the intrinsic validity of the will, there was nobasis for the probate court to hold that the 1972 probate order thatQuemada is entitled to payment of the questioned legacy. Therefore, theexecution and the subsequent order for the payment of Quemada’slegacy, in the alleged implementation of the probate order of 1972 mustfall for lack of basis.

Pastor is a detailed account of the jurisdiction of a probate court,particularly in the matter of liquidating the estate of a deceased person. Theappropriate procedure must be noted in the light of the unusual haste inwhich the probate judge sought to deliver a legacy to the designatedlegatee. More importantly, the jurisdiction of a probate court to determinethe issue of ownership must be noted.

QUASHA ANCHETA PENA AND NOLASCO LAW OFFICE V. LCNCONSTRUCTION CORP, 563 SCRA 426 (2008)FACTS: There is a pending claim by LCN against the estate of the lateRaymond Triviere and the amount thereof exceeds the value of entireestate. The claim of LCN against the estate amounted to P6,016,570.65,

already in excess of the P4,738,558.63 reported total value of the estate.Petitioners invoked Dael vs. Intermediate Appellate Court, where Courtsustained an Order granting partial distribution of an estate

ISSUE: WON partial distribution is permitted although there is pendingclaim against the estate

HELD: Yes. Further to the ruling of the Supreme Court in Pastor, J. vs.Court of Appeals, this case explicitly permits the partial distribution of theestate of a deceased person prior to the payment of the debts, underspecific conditions.

Section 2, Rule 109 of the Revised Rules of Court expressly recognizesadvance distribution of the estate, thus:

“ Section 2., Advance distribution in special proceedings. –Notwithstanding a pending controversy or appeal in proceedings to settleestate of a decedent, the court may, in its discretion and upon suchterms as it may deem proper and just, permit that such part of the estateas may not be affected by the controversy or appeal be distributedamong heirs or legatees, upon compliance with the conditions set forth inRule 90 of these rules.”

The second paragraph of Section 1 of Rule 90 of the Revised rules of Courtallows the distribution of the estate prior to the payment of the obligationsmentioned therein, provided that “the distributes, or any of them, gives abond, in a sum to be fixed by the court, conditioned for the payment of saidobligations within such time as the court directs.”

In sum, although it is within the discretion of the RTC whether or not topermit the advance distribution of the estate, its exercise of such discretionshould be qualified by the following: (1) only part of the estate that is notaffected by any pending controversy or appeal may be subject of advancedistribution (Section 2, Rule 90); and (2) the distributes must post a bond,fixed by the court, conditions for the payment of outstanding obligations ofthe estate (second paragraph of Section 1, Rule 90). There is no showingthat the RTC in awarding to the petitioner children and widow their sharesin the estate prior to the settlement of all its obligations, complied with thesetwo requirements or, at the very least, took the same into consideration. ItsOrder of 12 June 2003 is completely silent on these matters. It justified its


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grant of the award in a single sentence which stated that petitioner childrenand widow had not yet received their respective shares from the estateafter all these years. Taking into account that the claim of LCN against theestate of the late Raymond Triviere allegedly amounted to P6,016,570.65,already in excess of the P4,738,558.63 reported total value of the estate,the RTC should have bee more prudent in approving the advancedistribution of the same.

In Dael, the Court actually cautioned that partial distribution of thedecedent’s estate pending final termination of the testate or intestateproceeding should as much as possible be discouraged by the courts, and,except in extreme cases, such form of advances of inheritance should notbe countenanced. The reason for this rule is that courts should guard withutmost zeal and jealousy the estate of the decedent to the end that thecreditors thereof be adequately protected and all the rightful heirs beassured of their shares in the inheritance.

Further to the ruling of the Supreme Court in Pastor, J. v Court of Appeals,this case explicitly permits the partial distribution of the estate of a deceasedperson prior to the payment of the debts, under specific conditions.

JIMENEZ V. INTERMEDIATE APPELLATE COURT, 184 SCRA367 (1990)FACTS: The marriage of Leonardo (Lino) Jimenez and ConsolacionUngson produced 4 children, namely Alberto, Leonardo, Sr. Alejandraand Angeles. During the existence of the marriage, Lino Jimenezacquired 5 parcels of land in Pangasinan. After the death of ConsolacionUngson, Lino married Genoveva Caolboy with whom he begot the 7petitioners. Lino died on Aug. 11, 1951 while Genoveva died on Nov. 21,1978.

Virginia Jimenez (Virginia) filed a petition praying to be appointed as theadministratrix of the properties of the deceased spouses Lino andGenoveva. Enumerated in her petition were the supposed heirs of thespouses, which included herein co-petitioners and the four children of theunion of Lino and Consolacion.

Private respondent Leonardo Jimenez, Jr. (Leonardo Jr.) son ofLeonardo Jimenez Sr., file a motion for the exclusion of his father’s name

and those of Alberto, Alejandra and Angeles from the petition, as theyare children of the union of Lino and Consolacion and not of Lino andGenoveva and because they have already received heir inheritanceconsisting of 5 parcel of lands in Pangasinan..Virginia filed an inventory of the estate of the spouses Lino andGenoveva including 5 parcels of land in Pangasinan. Leonardo Jr.moved for the exclusion of these properties from the inventory on theground that these had already been adjudicated to Leonardo Sr., Alberto,Alejandra and Angeles by their deceased father Lino. The probate courtordered the exclusion of the 5 parcels of land from the inventory. Onappeal the CA dismissed the petition for the annulment of order of theprobate court dated in September 29, 1981, because Genoveva hadadmitted that the subject parcel of land had been adjudicated to thechildren of the previous nuptial; and the subject properties could nothave been acquired during the marriage of Lino to Genoveva becausethey were already titled in the name of Lino even prior to Lino andGenoveva’s marriage.

ISSUE: WON in a settlement proceeding, the lower court hasjurisdiction to settle questions of ownership and whether res judicataexist to bar petitioner’s present action for the recovery of possession andownership of the 5 parcels of land

HELD: No. Petitioners' present action for recovery of possession andownership is appropriately filed because as a general rule, a probate courtcan only pass upon questions of title provisionally. Since the probate court'sfindings are not conclusive, being prima facie, a separate proceeding isnecessary to establish the ownership of the five parcels of land.

The patent reason is the probate court's limited jurisdiction and the principlethat questions of title or ownership, which result in inclusion or exclusionfrom the inventory of the property, can only be settled in a separate action.

It has been held that in a special proceeding for the probate of a will, thequestion of ownership is an extraneous matter which the probate courtcannot resolve with finality. This pronouncement no doubt applies withequal force to an intestate proceeding as in the case at bar.


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Res judicata does not exist because of the difference in the causes ofactions. Specifically in Sp. No. 5346, is an action was for the settlement ofthe intestate estate of Lino Jimenez and Genoveva Caolboy, while CivilCase No. 16111 was an action for the recovery of possession andownership of the five (5) parcels of land. While admittedly, the CFI ofPangasinan had jurisdiction, the same was merely limited jurisdiction. Anypronouncement by said court as to title is not conclusive and could still beattacked in a separate proceeding. Civil Case No. 16111, on the otherhand, was lodged before the Regional Trial Court of Pangasinan, in theexercise of the court's general jurisdiction, in the determination of the issueof ownership of the disputed properties. Since the determination of thequestion of title to the subject properties in Sp. No. 5346 was merelyprovisional, petitioners are not barred from instituting the appropriate actionin Civil Case No. 16111.

The probate court, as a rule, cannot pass with finality on issues affectingownership of property. Jimenez holds that this limitation applies also toproceedings in intestacy where an intestate court can only pass upon onissues of title on a provisional basis only. And despite a ruling of theintestate court on the matter, the parties are not barred by res judicatafrom instituting a separate and subsequent action to thresh out the matter.

OZAETA V. CUARTERO, 99 PHIL 1041 (1956)FACTS: Carlos Palanca was married to Cesaria Gano with whom hebegot 3 children. After Cesaria died, Palanca cohabited with RosaGonzales with whom he had 8 children. Palanca also sustained relationswith Maria Cuartero with whom he had 6 children. Subsequently,Palanca married Rosa and thereafter made his will. At the time the willwas made, Palanca was living with petitioner Ramon Ozaeta, while hishouse was being repaired. The will named President Manuel Roxas asexecutor and Ozaeta as executor in default of Roxas.

When Palanca died, the will was given to Ozaeta since at the time Roxaswas already dead. Ozaeta then filed a petition for probate, joined byRosa and her children. Cuartero opposed the probate on the ground thatit was procured by fraud, undue pressure and influence on the part of thebeneficiaries.

ISSUE: WON the will should be disallowed on the ground of improperinfluence and pressue

HELD: No. The oppositors claim that Palanca was “a very old mansuffering from several ailments besides cataract in both eyes” and thatfear was instilled in his mind by Rosa Gonzales and also that all hisactions were controlled that he just signed whatever papers he wasasked to sign. But this seems to be a far-fetched deduction sincePalanca was at the time of the execution of the will, although old andsickly, was living with Rosa in the house of Ozaeta. Angel Palanca, evenstated that his father was still signing checks until 1945 while anotherwitness testified that Palanca can still read the newspaper in 1949. Eventhe doctor testified that his eyes were impaired only as to his “distancevision” but not the “near vision.”

There was no showing before, during and after the execution of the willthat he was not a master of his will but had to take orders fromsomebody. The will was signed by him in the office of a distinguishedlawyer, who died a respected member of this Court.

It is obvious that the claim that the will was obtained thru undue influenceand improper pressure has no substantial factual basis but is more amatter of conjecture engendered by suspicion which the weight ofauthority regards as insufficient to sustain a verdict defeating a will onthat ground. "It is not enough that there was an opportunity to exerciseundue influence or a possibility that it might have been exercised. Theremust be substantial evidence that it was actually exercised." Appellants'theory is, furthermore, disproved by decedent's failure to revoke orotherwise alter the questioned will as soon as he stepped out ofpetitioner's house and moved to his own where he led a free man's lifeup to five years after the execution of the will in question. This behaviorof the decedent constitutes a silent ratification of the contents of theimpugned will and refutes the claim of undue influence and improperpressure, even supposing that these circumstances were duly proved.

A will executed through undue and improper pressure of influence maybe denied probate by reason of the involuntariness of its execution by thetestator. However, an allegation of undue and improper pressure andinfluence must be substantiated by competent evidence to prove that itwas indeed exerted. Mere inferences resulting from circumstancessurrounding the execution of the will do not suffice to justify the denialof probate, particularly where the execution of the will was attended byrespectable members of the bar. In addition, even if such undue pressure


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and influence were to be proved, the testator would be deemed to haveratified the contents of the will if, having been given ample opportunityto revoke the same, he did nothing until the time of this death. This isbecause while undue pressure and influence vitiates consent, suchvitiation ceases when the undue pressure and influence ceased. Thus, ifthe testator did not exercise his option to revoke or alter the provisions ofthe will which are not consistent with his wishes, a presumption arisesthat he has silently ratified the same.

COSO V. FERNANDEZ DEZA, 42 PHIL 596 (1921)FACTS: The testator is a married man and a resident of the Philippines.The testator had an illicit affair with Rosario Lopez from 1898 to his deathin 1919. They begot a son. The testator (allegedly) executed a will whichwas presented for probate after his death. The will gives the free portion(tercio de libre disposicion) to the illegitimate child of the testator withRosario, and payment or reimbursement for the expenses incurred byRosario in taking care of the testator during the years 1909-1916 whenhe was suffering from severe illness. CFI denied the probate of thetestator’s will on the ground of undue influence alleged to have beenexerted over the time of the testator by Rosario. There is no doubt thatRosario exercised some influence over the testator.

ISSUE: WON the influence exercised was of such a character to vitiatethe will

HELD: No. Mere general or reasonable influence over a testator is notsufficient to invalidate a will; to have that effect, the influence must beundue. The rule as to what constitutes undue influence has beenvariously stated, but the substance of the different statements is that, tobe sufficient to avoid a will, the influence exerted must be of a kind thatso overpowers and subjugates the mind of the testator as to destroy hisfree agency and make him express the will of another rather than hisown.

Such influence must be actually exerted on the mind of the testator inregard to the execution of the will in question, either at the time of theexecution of the will, or so near thereto as to be still operative, with theobject of procuring a will in favor of particular parties, and it must result in

the making of testamentary dispositions which the testator would nototherwise have made.

And while the same amount of influence may become undue whenexercise by one occupying an improper and adulterous relation totestator, the mere fact that some influence is exercised by a personsustaining that relation does not invalidate a will, unless it is furthershown that the influence destroys the testator’s free agency.

The burden is upon the parties challenging the will to show that undueinfluence existed at the time of its execution. While it is shown that thetestator entertained strong affections for Rosario Lopez, it does notappear that her influence so overpowered and subjugated his mind as todestroy his free agency and make him express the will of another ratherthan his own. He was an intelligent man, a lawyer by profession, appearsto have known his own mind, and may well have been actuated only by alegitimate sense of duty in making provisions for the welfare of hisillegitimate son and by a proper feeling of gratitude in repaying RosarioLopez for the sacrifices she had made for him. Mere affection, even ifillegitimate, is not undue influence and does not invalidate a will.

Influence gained by kindness and affection will not be regarded asundue, if no imposition or fraud be practiced, even though it induces thetestator to make an unequal and unjust disposition of his property infavor of those who have contributed to his comfort and ministered to hiswants, if such disposition is voluntarily made.

Coso discusses the nature of "undue influence" which vitiates the will of thetestator. Further to Ozaeta, Coso holds that mere influence is not sufficientto invalidate a will. Influence must overpower and subjugate the mind ofthe testator so as to destroy his free agency and make him express the willof another, rather than his own. However, the interesting twist of this oldcase is the fact that the beneficiary accused of exercising undue influenceon the testator is a mistress of the testator. Nevertheless, the Court allowedthe will, including the disposition in favor of the mistress. In the case ofNepomuceno v Court of Appeals, supra, the Court invalidated atestamentary disposition in favor of a mistress. A distinction between thesetwo cases is therefore necessary.


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PASCUAL V. DELA CRUZ, 28 SCRA 421 (1969)FACTS: On 2 January 1960, Catalina de la Cruz, single and without anysurviving descendant or ascendant, died at the age of 89 in her residenceat San Roque, Navotas, Rizal. On 14 January 1960, a petition for theprobate of her alleged will was filed in the Court of First Instance of Rizal byAndres Pascual, who was named in the said will as executor and sole heirof the decedent. Pedro de la Cruz and 26 other nephews and nieces of thelate Catalina de la Cruz contested the validity of the will on the grounds thatthe formalities required by law were not complied with; that the testatrix wasmentally incapable of disposing of her properties by will at the time of itsexecution; that the will was procured by undue and improper pressure andinfluence on the part of the petitioner; and that the signature of the testatrixwas obtained through fraud.

ISSUE: WON under the circumstances, undue and improper pressureand influence as well as fraud are grounds to disallow a will.

HELD: Petitioner, Andres Pascual, although not related by blood to thedeceased Catalina de la Cruz, was definitely not a stranger to the latter forshe considered him as her own son. As a matter of fact it was not onlyCatalina de la Cruz who loved and cared for Andres Pascual but also hersisters held him with affection so much so that Catalina's sister, FlorentinaCruz, made him also her sole heir to her property in her will without anyobjection from Catalina and Valentina Cruz.

The basic principles of undue pressure and influence as laid down by thejurisprudence on this Court: that to be sufficient to avoid a will, the influenceexerted must be of a kind that so overpowers and subjugates the mind ofthe testator as to destroy his free agency and make him express the will ofanother rather than his own (Coso v Fernandez Deza, 42 Phil 596.

The circumstances marshaled by the contestants certainly fail to establishactual undue influence and improper pressure exercised on the testatrix bythe proponent. Their main reliance is on the assertion of the latter, in thecourse of his testimony, that the deceased "did not like to sign anythingunless I knew it," which does not amount to proof that she would signanything that proponent desired. On the contrary, the evidence ofcontestants-appellants, that proponent purchased a building in Manila forthe testatrix, placed the title in his name, but caused the name "Catalina dela Cruz" to be painted therein in bold letters to mislead the deceased, even

if true, demonstrates that proponent's influence was not such as tooverpower and destroy the free will of the testatrix. Because if the mind ofthe latter were really subjugated by him to the extent pictured by thecontestants, then proponent had no need to recourse to the deceptionaverred.

Nor is the fact that it was proponent, and not the testatrix who asked Dr.Sanchez to be one of the instrumental witnesses evidence of such undueinfluence, for the reason that the rheumatism of the testatrix made it difficultfor her to look for all the witnesses. That she did not resort to relative orfriend is, likewise, explainable: it would have meant the disclosure of theterms of her will to those interested in her succession but who were notfavored by her, thereby exposing her to unpleasant importunity andrecrimination that an aged person would naturally seek to avoid. Thenatural desire to keep the making of a will secret can, likewise, account forthe failure to probate the testament during her lifetime.

Considering that the testatrix considered proponent as her own son, to theextent that she expressed no objection to his being made sole heir of hersister, Florentina Cruz, in derogation of her own rights, there is nothingabnormal in her instituting proponent also as her own beneficiary. Theprobate of the will was allowed.

Undue and improper pressure and influence as well as fraud are grounds todisallow a will. These twin grounds were invoked in this case. While theCourt considered only the issue of improper influence and pressure, andsummarized the rulings thereon, it is equally important to consider theeffect of alleging undue influence and pressure simultaneously with fraud.

ORTEGA V. VALMONTE, 478 SCRA 247 (2005)FACTS: Placido worked in the US until his retirement. In 1980, hereturned to the Philippines and lived in a house which he co-owned withhis sister Ciriaca Valmonte. toiled and lived for a long time in the UnitedStates until he finally reached retirement. In 1980, Placido finally camehome to stay in the Philippines and lived in the house located at SanAntonio Village, Makati, which he owned in common with his sisterCiriaca Valmonte. Two years after his arrival and at the age of 80, hewed Josefina who was then 28 years old. Two years after theirmarriage, Placido died.


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Placido executed a notarial will. The will contained provisions bequeathingPlacido’s properties to his Wife Josefina and appointing her as soleexecutrix of his last will and testament, and that said executrix be exemptfrom filing a bond.

The allowance to probate of this will was opposed by Leticia and she alsoopposed the appointment as Executrix of Josefina, alleging her want ofunderstanding and integrity.

According to Josefina, she had no knowledge of the existence of the lastwill and testament of her husband, but just serendipitously found it in hisattaché case after his death. It was only then that she learned that thetestator bequeathed to her his properties and she was named the executrixin the said will.

The oppositor Leticia declared that Josefina should not inherit alonebecause aside from her there are other children from the siblings of Placidowho are just as entitled to inherit from him. She attacked the mentalcapacity of the testator, declaring that at the time of the execution of thenotarial will the testator was already 83 years old and was no longer ofsound mind.

ISSUE: WON the signature of Placido was procured through fraud

HELD: No. The fact that public policy favors the probate of a will does notnecessarily mean that every will presented for probate should be allowed.The law lays down the procedures and requisites that must be satisfied forthe probate of a will. Verily, Article 839 of the Civil Code states theinstances when a will may be disallowed.

Petitioner does not dispute the due observance of the formalities in theexecution of the will, but maintains that the circumstances surrounding itare indicative of the existence of fraud.

Fraud “is a trick, secret device, false statement, or pretence, by which thesubject of it is cheated. It may be of such character that the testator ismisled or deceived as to the nature or contents of the document which heexecuted, or it may relate to some extrinsic fact, in consequence of thedeception regarding which the testator is led to make a certain will which,

but for the fraud, he would not have made. the party challenging the willbears the burden of proving the existence of fraud at the time of itsexecution. The burden to show otherwise shifts to the proponent of the willonly upon a showing of credible evidence of fraud. the party challenging thewill bears the burden of proving the existence of fraud at the time of itsexecution. The burden to show otherwise shifts to the proponent of the willonly upon a showing of credible evidence of fraud.

It is a settled doctrine that the omission of some relatives does not affectthe due execution of a will. That the testator was tricked into signing it wasnot sufficiently established by the fact that he had instituted his wife, whowas more than fifty years his junior, as the sole beneficiary, anddisregarded petitioner and her family, who were the ones who had takencared of the testator in his twilight years.

The conflict between the dates appearing on the will does not invalidate thedocument, “because the law does not even require that a (notarial) will x xx be executed and acknowledged on the same occasion.” Petitioner failedto substantiate her claim of a “grand conspiracy” in the commission offraud, There was no showing that the witnesses of the proponent stood toreceive any benefit from the allowance of the will. The testimonies of thethree subscribing witnesses and the notary are credible evidence of its dueexecution. Their testimony favoring it and the finding that it was executed inaccordance with the formalities required by law should be affirmed, absentany showing of ill motives.

According to Art 799, the three things that the testator must have the abilityto know to be considered of sound mind are as follows: (1) the nature of theestate to be disposed of; (2) the proper objects of the testator’s bounty; and(3) the character of the testamentary act. Applying this test to the presentcase, the appellate court was correct in holding that Placido hadtestamentary capacity at the time of the execution of his will.

Ortega discusses two issues: (i) how to prove the fact of fraud in themaking of the will; and (ii) what constitutes a sound and disposing mind.


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NEPOMUCENO V. CA, 139 SCRA 206 (1085)FACTS: In the last will and testament of Martin Jugo, he named andappointed the petitioner Sofia Nepomuceno as his sole and onlyexecutor of his estate. It is clearly stated in the Will that the testatorwas legally married to a certain Rufina Gomez by whom he had twolegitimate children, Oscar and Carmelita, but since 1952, he had beenestranged from his lawfully wedded wife and had been living withpetitioner as husband and wife. In fact, on December 5, 1952, thetestator Martin Jugo and the petitioner herein, Sofia J. Nepomucenowere married in Victoria, Tarlac before the Justice of the Peace. Thetestator devised to his forced heirs, namely, his legal wife Rufina Gomezand his children Oscar and Carmelita his entire estate and the freeportion thereof to herein petitioner.

The petitioner filed a petition for the probate of the Will, but the legal wifeand children filed an opposition. The lower court denied the probate ofthe will on the ground that the testator admitted to cohabiting withNepomuceno. The will’s admission to probate was deemed an idleexercise since based on the face of the will, the invalidity of the intrinsicprovisions is evident. The appellate court, however, declared the will tobe valid except that the devise in favor of the petitioner is null and void.Petitioner filed a motion for reconsideration, but such was denied.

ISSUES:1. WON CA acted in excess of its jurisdiction when after declaring the

will of the testator validly drawn, it went on to pass upon theintrinsic validity of the testamentary disposition in favor of petitioner

2. WON the disposition in favor of the petitioner validHELD:FIRST ISSUE: The court acted within its jurisdictionThe general rule is that in probate proceedings, the court’s area ofinquiry is limited to an examination and resolution of the extrinsic validityof the will. The rule, however, is not inflexible and absolute. Given theexceptional circumstances, the probate court is not powerless to do whatthe situation constrains it to do and pass upon certain provisions of theWill.

The trial court acted correctly in passing upon the will’s intrinsic validityeven before its formal validity has been established. The probate of awill might become an idle ceremony if on its face, it appears to be

intrinsically void. Where practical considerations demand that theintrinsic validity of the will be passed upon, even before it is probated, thecourt should meet the issue.

SECOND ISSUE: Validity of the disposition to the petitioner:Article 739 of the Civil Code provides:

The following donations shall be void:(1) Those made between persons who were guilty of

adultery or concubinage at the time of the donation;(2) Those made between persons found guilty of the same

criminal offense, in consideration thereof;(3) Those made to a public officer or his wife, descendants

and ascendants, by reason of his office.In the case referred to in No. 1, the action for declaration of nullity maybe brought by the spouse of the donor or donee; and the guilt of thedonor and donee may be proved by preponderance of evidence in thesame action.

Article 1028 of the Civil Code provides:The prohibitions mentioned in Article 739, concerning donations intervivos shall apply to testamentary provisions.

The records of the case do not sustain a finding of innocence or goodfaith on the part of Nepomuceno:

a. The last will and testament itself expressly admits its indubitably onits face the meretricious relationship between the testator andpetitioner, the devisee

b. Petitioner herself, initiated the presentation of evidence on heralleged ignorance of the true civil status of the testator, which ledprivate respondents to present contrary evidence. In short, theparties themselves duelled on the intrinsic validity of the legacygiven in the will to petitioner by the testator at the start of theproceedings.

Whether or not petitioner knew that the testator, Jugo, the man she hadlived with as a husband, was already married was important . When thecourt ruled that Jugo and the petitioner were guilty of adultery andconcubinage, it was a finding that the petitioner was not the innocentwoman she pretended to be.


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The prohibition in Art. 739 is against the making a donation betweenpersons who are living in adultery or concubinage. It is the donationwhich becomes void. The giver cannot given even assuming that therecipient may receive. The very wordings of the Will invalidate thelegacy because the testator admitted he was disposing the properties toa person with whom he had been living in concubinage.

While the general rule is that the probate court's area of inquiry is limitedto the extrinsic validity of the will, practical considerations may compelthe probate court to pass upon matters of intrinsic validity. In particular,where a testamentary provision is void on its face, a probate court, inaccordance with the ruling in Nuguid v Nuguid, pass upon suchprovision for the purpose of declaring its nullity.

ROBERTS V. LEONIDAS, 129 SCRA 33 (1984)FACTS: Edward Grimm was an American residing in Manila until hisdeath in 1977. He was survived by his 2nd wife (Maxine), their twochildren (Pete and Linda), and by his two children from a 1st marriage(Juanita and Ethel) which ended in divorce. Grimm executed two wills inSan Francisco, CA in January 1959. One will disposed of his Philippineestate described as conjugal property of himself and his 2nd wife. Thesecond will disposed of his estate outside the Philippines.The two wills and a codicil were presented for probate in Utah by Maxinein March 1978. Maxine admitted that she received notice of the intestatepetition filed in Manila by Ethel in January 1978. Subsequently, the Utahcourt admitted the two wills and a codicil for probate in April 1978, andwas issued upon consideration of the stipulation between the lawyers froMaxine and Ethel.

In April 1978, Maxine and Ethel, with knowledge of the intestateproceeding in Manila, entered into an agreement in Utah regarding theestate. The agreement provided that Maxine, Pete and Ethel would bedesignated as personal representatives (administrators) of Grimm’sPhilippine estate and that Maxine’s ½ conjugal share in the estate shouldbe reserved for her which would not be less than $1.5 million plus thehomes in Utah and Sta. Mesa.

Manila Intestate Proceedings: Maxine filed an opposition and motion todismiss the intestate proceeding in Manila on the ground of pendency ofthe Utah probate proceedings. However, pursuant to the compromiseagreement, Maxine withdrew the opposition and motion to dismiss. Thecourt ignored the will found in the record. The estate was partitioned. In1980, Maxine filed a petition praying for the probate of the two wills(which was already probated in Utah), that the partition approved by theintestate court be set aside, and that Maxine be named executrix, andEthel be ordered to account for the properties received by them andreturn the same to Maxine. Maxine alleged that they were defrauded dueto the machinations of the Ethel, that the compromise agreement wasillegal and the intestate proceeding was void because Grimm diedtestate so the partition was contrary to the decedent’s wills. The trialcourt denied the petition for lack of merit.

ISSUE: WON the respondent judge committed grave abuse of discretionin denying Ethel’s motion to dismiss

HELD: No. A testate proceeding is proper in this case because Grimmdied with two wills and “no will shall pass either real or personal propertyunless it is proved and allowed.”

The probate of the will is mandatory. It is anomalous that the estate of aperson who died testate should be settled through an intestateproceeding. Therefore, the intestate case should be consolidated withthe testate proceeding and the judge assigned to the testate proceedingshould continue hearing the two cases.

Probate of a will is mandatory in order that the said will may pass property.In this case, the Supreme Court ruled that "it is anomalous that the estate ofa person who died testate should be settled in an intestate proceeding."Accordingly, the Court ordered the consolidation of the testate and intestateproceedings, and for the judge hearing the testate case to continue hearingthe consolidated cases.

In de Borja v vda de Borja, infra, the Supreme Court allowed and in factenforced the compromise agreement between a stepson and his stepmother,despite the fact that the tenor of the compromise agreement is not consistent


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with the tenor of the will of the testator. It is important to distinguish thevariance between the ruling in de Borja and the ruling in Roberts. Based onthe dictum of the Supreme Court in these two cases, is it lawful for the heirsto divide the estate in accordance with a freely negotiated compromiseagreement and in the process disregard the terms of the will? Or will such acompromise agreement result in an "anomalous" situation deplored by theSupreme Court in Roberts?

DOROTHEO V. CA, 320 SCRA 12 (1999)FACTS: Private respondents were the legitimate children of AlejandroDorotheo and Aniceta Reyes. The latter died in 1969 without her estatebeing settled. Alejandro died thereafter. Sometime in 1977, afterAlejandro’s death, petitioner, who claims to have taken care of Alejandrobefore he died, filed a special proceeding for the probate of the latter’s lastwill and testament. In 1981, the court issued an order admitting Alejandro’swill to probate. Private respondents did not appeal from said order. In 1983,they filed a “Motion to Declare The Will Intrinsically Void.” The trail courtgranted the motion. Petitioner moved for reconsideration arguing that she isentitled to some compensation since she took care of Alejandro prior to hisdeath although she admitted that they were not married to each other.

ISSUE: WON the issuance of a probate order, a guaranty that thetestamentary dispositions are valid and would thus be given effect

HELD: No. It should be noted that probate proceedings deals generallywith the extrinsic validity of the will sought to be probated, particularly on thefollowing aspects:

a) whether the will submitted is indeed, the decedent’s last will andtestament;

b) compliance with the prescribed formalities for the execution of wills;c) the testamentary capacity of the testator;d) and the due execution of the last will and testament.

Under the Civil Code, due execution includes a determination of whetherthe testator was of sound and disposing mind at the time of its execution,that he had freely executed the will and was not acting under duress, fraud,menace or undue influence and that the will is genuine and not a forgery,that he was of the proper testamentary age and that he is a person notexpressly prohibited by law from making a will.

It can be clearly inferred from Art 960 NCC, on the law on successionalrights that testacy is preferred to intestacy. But before there could be testatedistribution, the will must pass the scrutinizing test and safeguards providedby law considering that the deceased testator is no longer available toprove the voluntariness of his actions, aside from the fact that transfer ofthe estate is usually onerous in nature and that no one is presumed to give– nemo praesumitur donare. No intestate distribution of the estate can bedone unless the will had failed to pass both extrinsic and intrinsic validity. Ifthe will is extrinsically void, the rules of intestacy apply regardless of theintrinsic validity thereof. If it is extrinsically valid, the test is to determine itsintrinsic validity – that is, whether the provisions of the will are validaccording to the laws of succession. In this case, the court had ruled thatthe will of Alejandro was extrinsically valid but the intrinsic provisionsthereof were void. Thus, the rules of intestacy apply as correctly held by thetrial court.

Furthermore, Alejandro’s disposition in his will of the alleged share in theconjugal properties of his late spouse, whom he described as his “onlybeloved wife,” is not a valid reason to reverse a final and executory order.Testamentary dispositions of properties not belonging exclusively to thetestator or properties which are part of the conjugal regime cannot be giveneffect. Matters with respect to who owns the properties that were disposedof by Alejandro in the void will may still be properly ventilated anddetermined in the intestate proceedings for the settlement of his and that ofhis late spouse’s estate.

Dorotheo distinguishes between the extrinsic and intrinsic validity of a will.It holds that the admission of a will to probate does not necessarily meanthe provisions of the will can be given effect. The inquiry during probate ofthe will focuses only on formal or extrinsic validity. Even as a probate orderis issued, it is not a guaranty that the testamentary dispositions are valid andwould thus be given effect. In sum, extrinsic validity is one thing; intrinsicvalidity is another.

G. INSTITUTION OF HEIRS

Art840. Institution of heir is an act by virtue of which a testatordesignates in his will the person or persons who are to succeedhim in his property and transmissible rights and obligations.


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INSITITUTION – An act by virtue of which a testator designates inhis will the person or person who are to succeed him in his propertyand transmissible rights and obligations (Art. 840)

The institution is valid if it is possible to ascertain with finality theidentity of the instituted heir by intrinsic or extrinsic evidence.

INSTITUTION OF AN HEIR – The process whereby the testatordesignates another person/s who are to receive a fractional part of hisestate.

If a person is instituted to a fractional portion, he is an heir; if he issupposed to receive a specific property comprising the estate, he iscalled a legatee or devisee.

It is not necessary that a will must contain an institution of heirs, sincethe estate can be distributed through legacies or devises.

PREFERENTIAL RIGHT OF DEVISEE/LEGATEE – When thetestator specifically named the devisee/legatee to receive a specificproperty, the legatee/devisee enjoys a preferential right over the heirssuch that the devises/legacies cannot be sold to pay for the debts ofthe estate. It is specifically held in abeyance for the devisee/legatee. Atestator can distribute his estate by identifying the specific propertiesthat will go to specific persons (e.g., Dizon-Rivera v. Dizon)

ORDER OF PREFERENCE:1. Institution of heir (Art 840)2. Substitution of heir (Art 857)3. Right of representation (Art 970)4. Right of accretion (Art1015)5. Intestacy (Art 960)

REQUISITES OF VALID INSTITUTION1. The will must be EXTRINSICALLY valid – The testator must

possess testamentary capacity, the formalities required by lawmust be observed, there must be no vice of consent in themaking of the will, and the will must have been duly probated

2. The will must be INTRINSICALLY valid – There is no violationof any provision of substantive law, i.e. no impairment of

legitimes, heirs must be qualified to inherit from the testatorand there should be no preterition

3. The institution which refers to the naming of the person andthe specification of share must be made PERSONALLY by thetestator

4. The instituted heir must be IDENTIFIABLE

Art841. A will shall be valid even though it should not contain aninstitution of an heir, or such institution should not comprise theentire estate, and even though the person so instituted should notaccept the inheritance or should be incapacitated to succeed.

In such cases the testamentary dispositions made in accordancewith law shall be complied with and the remainder of the estateshall pass to the legal heirs.

Even if the heir instituted becomes incapacitated or renounced hisshare in the estate, the will remains valid. The validity of the will doesnot depend on the heir but depends on the compliance with theformalities of the law. In case the heir does not accept the inheritanceor is incapacitated to succeed, the share of such heir shall be disposedof under certain rules, not necessarily under the rules of intestacy.

EFFECT OF LACK OF INSTITUTION (Art 841)A will otherwise defective is valid, even if:

1. There is no institution of heir2. The instituted heir is given only a portion of the estate3. The heir instituted should repudiate or be incapacitated to

inherit

The testamentary dispositions made in accordance with the law shallbe complied with and the remainder of the estate shall pass to thelegal heirs.

Art842. One who has no compulsory heirs may dispose by willof all his estate or any part of it in favor of any person havingcapacity to succeed.


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One who has compulsory heirs may dispose of his estate providedhe does not contravene the provisions of this Code with regard tothe legitime of said heirs.

Art 842 states the principle of freedom of disposition by will. Theextent of this freedom depends upon the existence, kind, and numberof compulsory heirs. One who has no compulsory heirs has practicallyfull powers of disposition; but one with compulsory heirs cannotdisregard the rights of the latter.

Compulsory heirs – Those who succeed by force of law to acertain portion of the estate of the decedent, irrespective of the will ofthe testator, except in cases expressly provided by law. The portionwhich they succeed is known as the legitime; the remainder of theestate is called the free portion, and may be freely disposed ofby the testator as he may desire to any person with capacity tosucceed.

The size of the free portion is inversely proportional to the number oflegitimate children and directly proportional to the number ofillegitimate children (Mison, p. 172).

FREEDOM OF DISPOSITION:1. If the testator has NO compulsory heirs; his freedom of disposition

is ABSOLUTE in character. The whole estate is disposable.2. If the testator has compulsory heirs, his freedom of disposition

shall extent only to the disposable free portion of his estate butnot to the legal portion or legitime. (Jurado, p.162)

Art843. The testator shall designate the heir by his name andsurname, and when there are two persons having the samenames, he shall indicate some circumstance by which theinstituted heir may be known.

Even though the testator may have omitted the name of the heir,should he designate him in such manner that there can be nodoubt as to who has been instituted, the institution shall be valid.

Art844. An error in the name, surname, or circumstances of theheir shall not vitiate the institution when it is possible, in anyother manner, to know with certainty the person instituted.

If among persons having the same names and surnames, there isa similarity of circumstances in such a way that, even with theuse of the other proof, the person instituted cannot be identified,none of them shall be an heir.

Art845. Every disposition in favor of an unknown person shallbe void, unless by some event or circumstance his identitybecomes certain. However, a disposition in favor of a definiteclass or group of persons shall be valid.

These provisions follow the principle that if the institution leaves doubtas to who is designated, the will of the testator must be complied with,but if the doubt as to who is instituted cannot be resolved, then theinstitution is void.

ERROR AND AMBIGUITYAn error in the name or circumstances of the heir does not vitiate theinstitution if the person intended by the testator can be ascertained in“any other manner.” This phrase is broad is enough to cover all kindsof evidence.

If the testator institutes “my nephew Jose Reyes” and he happens tohave 2 nephews with the same name, the institution is VOID. But ifthe testator merely institutes “Jose Reyes” without mentioning anycircumstances regarding him, the appearance of two persons havingthe same name does not invalidate the institution. If it can be proventhat one Jose Reyes is a close friend of the testator while the other isnot, then the former must be taken as the one instituted.

CERTAINTY OF IDENTITYThe person instituted must be certain, i.e. his identity must be known.The heirs must be identified preferably by name and surname. If thename is not known, other circumstances may be used by the testatorto allow for identification. Should the testator fail to provide the nameof the heir, the institution shall be valid if the testator provided someother designation that will identify the heir.


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FORMS OF INSTITUTIONS (Art 843-845)1. The testator shall designate the heir by his name and surname.

This form is not mandatory.2. The designation may be made in any other form, as long as

there will be no doubt as to the identity of the heir/s instituted.3. Disposition in favor of an unknown person shall be void, unless

some event or circumstances his identity becomes certain4. A disposition in favor of a definite class or group of persons shall

be valid.

Art846. Heirs instituted without designation of shares shallinherit in equal parts.

In the absence of any fractional designation, the heirs shall inheritEQUALLY based on the rationale that had the testator wanted an heirto inherit more than the other, the testator should have provided it inthe will (if there are no compulsory heirs).

If the shares of some heirs are designated while those of the othersare not, those parts designated shall be given to their owners, and thebalance shall be divided equally among those whose shares not aredesignated. But if the shares of those whose portions are designatedshould consume the entire estate, those whose shares are notdesignated will inherit nothing (Tolentino, p. 179).

TEST TO DETERMINE THE VALIDITY OF INSTITUTIONThe proper test in order to determine the validity of an institution ofheir is the possibility of finally ascertaining the identity of the institutedheir either by intrinsic or extrinsic evidence. (Ibid, p. 163)

PRESUMPTIONS1. PRESUMPTION OF EQUALITY – When heirs were instituted

without designation of shares they are deemed to inherit inequal parts. (Art 846)o This applies only when all of the heirs are of the same

class or juridical condition.o Where there are NO compulsory heirs among the heirs

instituted, it should be applied only to the disposable freeportion.

2. PRESUMPTION OF INDIVIDUALITY – When the testatorinstitutes some heirs individually and others collectively, thosecollectively designated shall be considered as individuallyinstituted, unless it clearly appears that the intention of thetestator was otherwise. (Art 847)

3. PRESUMPTION OF SIMULTANEITY – When the testator callsto the succession a person and his children, they are all deemedto have been instituted simultaneously and not successively. (Art849)

Art847. When the testator institutes some heirs individually andothers collectively as when he says, "I designate as my heirs Aand B, and the children of C," those collectively designated shallbe considered as individually instituted, unless it clearly appearsthat the intention of the testator was otherwise.

Those who are individually instituted and those collectively institutedare deemed individually instituted. E.g., An institution which states “Iinstitute Toto and his 7 children” the estate shall be divided into 8equal parts. Collective institution is however permissible but theinstitution must be specific, i.e. “I give ½ of my estate to Toto and ½to the 7 children collectively.”

Art848. If the testator should institute his brothers and sisters,and he has some of full blood and others of half blood, theinheritance shall be distributed equally unless a differentintention appears.

When there is no discrimination, there is a clear indication, that as faras the testator is concerned, he has equal affection for his brother andsister, whether full or half-blood. Art 848 has a counterpart inintestacy (Art 1006 NCC). Under Art 1006, in intestate succession, ifsome of the sibling-heirs are of the full blood and some are of the half-blood, the latter shall only receive half of the share of the former.

INSTITUTION OF BROTHERS AND SISTERSSome of full blood and others of half blood


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1. Testate Succession – The inheritance shall be distributedequally, unless a different intention appears (Art 848)

2. Intestate Succession – Brothers and sisters of the full blood shallbe entitled to a share of double that of the brothers and sistersof the half blood (Art. 1006)

Art849. When the testator calls to the succession a person andhis children they are all deemed to have been institutedsimultaneously and not successively.

If a person and his children are instituted, they inherit at the sametime from the testator. For example, X provided in his will that Y andhis children are the universal heirs of X’s estate. Y and his children willinherit simultaneously from X; it should not be interpreted as Y willinherit first from X and then the children will inherit from Y. Successiveinstitution is governed by Art 863.

Art850. The statement of a false cause for the institution of anheir shall be considered as not written, unless it appears from thewill that the testator would not have made such institution if hehad known the falsity of such cause.

FALSE CAUSE – A false cause is synonymous to a mistake, whichvitiates consent. Such vice of consent therefore renders an ordinarycontract voidable. However in the law on succession, there are novoidable dispositions in a will, they are either valid or invaliddispositions.

The falsity of a cause does not affect the validity of the dispositionbecause the fact that the testator gave something in his will, isindicative of his intent to give something to the person such that thefalse cause is not deemed as the consideration of that institution butmerely a motive of the institution. In other words, the false cause ismerely an incident to the bequest because the consideration remainsto be liberality. However, if the disposition is extremely explicit instating that the testator would not have instituted the heir were it notfor the false cause, then the institution becomes invalid. This results toinvalidity because the cause or consideration of the disposition is nolonger liberality but the false cause.

TEST: Whether or not the testator would not have made theinstitution had he known the falsity of the cause.

REQUISITES FOR FALSE CAUSE1. The cause for the institution of the heirs must be stated in the

will2. The cause must be shown to be false; and3. It must appear from the face of the will that the testator would

not have made such institution if he had known the falsity ofthe cause

CAUSE CONTRARY TO LAWWhat is the effect of the statement of a cause contrary to law? Is theinstitution valid or void?

The mere statement of a cause contrary to law will not invalidate theinstitution, so long as it does not appear in the will that such illegalcause is the only motivating factor for the institution. The principleunderlying in the rule on the statement of a false cause should alsoapply in the case of an illegal cause. If the true cause is the generosityof the testator, the mere statement of an illegal cause should notimpair the institution. But if it clearly appears from the will itself thatthe testator’s only reason for making the disposition is the illegalcause, then the disposition should be void.

CASE: AUSTRIA V. REYES, 31 SCRA 754 (1970)FACTS: Basilia Austria vda. de Cruz filed with the CFI of Rizal a petitionfor probate, ante mortem, of her last will and testament. The probate wasopposed by the petitioners, Ruben Austria, Consuelo Austria-Benta andLauro Austria Mozo and still others who, like petitioner are nephew andnieces of Basilia. The opposition was dismissed and the probate of the willallowed after due hearing.

The bulk of the estate of Basilia, was destined under the will to pass on torespondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, AlbertoCruz, and Luz Cruz – Salonga, all of whom had been assumed anddeclared by Basilia as her own legally adopted children.

Petitioner filed in the same proceedings a petition in intervention forpartition alleging in substance that they are the nearest of kin of Basilia, and


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that the five respondents, Perfecto Cruz, et.al, had not fact been adoptedby the decedent in accordance with law. The court then allowed the saidintervention by petitioners which the court delimited to the properties ofthe deceased which were not disposed of in the will and disregarded thematter of the genuineness of adoption.

ISSUE: WON the institution of heirs would retain efficacy in the eventthere exists proof that the adoption of the same heirs by the decedent isfalse

HELD: No. Before the institution of heirs may be annulled under Art 850NCC, the following requisites:

1. The cause for the institution of heirs must be stated in the will2. The cause must be shown to be false3. It must appear from the face of the will that the testator would not

have made such institution if he had known the falsity of the cause

Even if Basilia have used the terms “sapilitang mana” and sapilitangtagapagmana” there is no indication that had she known that therespondents were not her adopted disposition of the free portion waslargely at Basilia’s discretion and she had given a large part to therespondents while giving a relatively small legacy in favor of the petitioners.The decedent’s will does not state in a specific or unequivocal manner thecause for such institution of heirs. The Court cannot annul the same on thebasis of guesswork or uncertain implications.

Art 850 is a positive injunction to ignore whatever false cause the testatormay have written in his will for the institution of heirs. Such institution maybe annulled only when one is satisfied, after an examination of the will, thatthe testator clearly would not have made the institution of he had knownthe cause for it to be false.

The legality of the adoption of the respondents by the testatrix can beassailed only in a separate action brought for that purpose and cannot bethe subject of a collateral attack.

The statement of a false cause in the institution of heirs shall bedisregarded, unless it is proved that the testator would not have made suchinstitution had he been properly appraised of the truth. Aside from the fact

that the false cause must be stated in the will, the opponents of the will arelikewise mandated to prove by substantial evidence that the testator wouldnot have made such a disposition had he known the true state of affairs.Therefore, inferences and conjectures are not sufficient to invalidate aprovision which is challenged as one made on the basis of a false cause.

Please note that the false cause which led the testator to make a particulartestamentary disposition is treated in the same way as a mistake, which incontract law, vitiates consent.

Art851. If the testator has instituted only one heir, and theinstitution is limited to an aliquot part of the inheritance, legalsuccession takes place with respect to the remainder of the estate.

The same rule applies if the testator has instituted several heirs,each being limited to an aliquot part, and all the parts do notcover the whole inheritance.

In the event the testator fails to distribute the entire estate to adesignated heir, then the “vacant” portion of his estate shall bedistributed by intestacy. The same rule applies, if the testatorinstituted several heirs each being limited to an aliquot part and all theparts do not cover the entire inheritance. The portion which does notpertain to any instituted heir will be disposed of by way of intestacy.

Art 851 is superfluous and inaccurate. It is superfluous because thesituation contemplated therein is already covered by Art 841. It isinaccurate, because even if the institution is limited to an aliquot partof the estate, the remainder does not always pass in accordance withthe laws of intestacy, such as when the balance is disposed of by wayof legacies and devises (Tolentino, p. 185).

INSTITUTION ON ALIQUOT PARTS:1. Rule if the entire inheritance is NOT covered

a. No intention to become sole heir – mixed succession (Art.851)i.e., A=2/5; B=1/5; C=1/5 The remainder of 1/5 shall pass to the legal heirs.


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b. Intention to become the sole heir to the whole estate or freeportion – increase proportionately (Art. 852)

2. Rule if the aliquot parts together exceed the whole inheritance -each part is reduce proportionately (Art. 853)

Art852. If it was the intention of the testator that the institutedheirs should become sole heirs to the whole estate, or the wholefree portion, as the case may be, and each of them has beeninstituted to an aliquot part of the inheritance and their aliquotparts together do not cover the whole inheritance, or the wholefree portion, each part shall be increased proportionally.

The proportional increase in Art 852 only applies when:1. It is clear that the testator wanted to distribute his entire

estate to the instituted heirs; AND2. All of the aliquot portions given to the heirs do not cover the

entire estate.If the intention of the testator is not to cover the entire estate, thenArt 851 will apply.

SOLUTION TO INCREASE SHARES PROPORTIONALLYAdjust the dispositions in such a way that the ratio at which the heirswould inherit shall be maintained.

EXAMPLE: A = ½ share; B = ¼ share; Estate = P100K. A and B arethe universal heirs of the testator. A gets P50K and B gets P25K.Applying Art 852, A will get P66,666.66 and B will get P33,333.33.

(100,000/75,000) x 50,000 = 66,666.66 (A’s share)(100,000/75,000) x 25,000 = 33,333.33 (B’s share)

Art853. If each of the instituted heirs has been given an aliquotpart of the inheritance, and the parts together exceed the wholeinheritance, or the whole free portion, as the case may be, eachpart shall be reduced proportionally.

If the aliquot shares of the instituted heirs exceed the wholeinheritance, then the dispositions must be adjusted in such a way thatthe ratio at which the heirs would inherit shall be maintained.

EXAMPLE: A = ½ share; B = ¼ share; C = ½ share; Estate = P100K.A, B, and C are the universal heirs of the testator. When all fractionsare added up, the testator obviously over distributed since there is anexcess. Applying Art 853, A must receive P40K, B must receive P20K,and C must receive P40K.

ATTY SEBASTIAN’S FORMULA FOR ART 852 AND 853: Total sharedivided by total distribution multiplied by the share received. This isapplicable only if they are the only heirs to receive from the estate.

H. PRETERITION

Art 854. The preterition or omission of one, some, or all of thecompulsory heirs in the direct line, whether living at the time ofthe execution of the will or born after the death of the testator,shall annul the institution of heir; but the devises and legaciesshall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, theinstitution shall be effectual, without prejudice to the right ofrepresentation.

Ways to escape legitime:1. Omit the name of the heir – total omission (Art 854)2. Give ½ legitime only – completion of legitime (Art 906)3. Inter vivos donation – donee may have to return (Art 1061)

PRETERITION – Preterition means the total omission of acompulsory heir from the inheritance. It consists in the silence of thetestator with regard to a compulsory heir omitting him in the will,either by not mentioning him at all, or by not giving him anything inthe estate but without expressly disinheriting him, even if he ismentioned in the latter case.

o If heir is born after the death of the testator (posthumouschildren –children born after father) OR if unintentionallyomitted from the will = preterition

o What is annulled is only the share of the heir NOT thelegacies/devises PROVIDED that devises/legacies are notinofficious


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o Only happens in TESTAMENTARY succession where there is anomission of a compulsory heir (Compulsory heir does notreceive anything from the estate)

PRETERITION AND DISINHERITANCE DISTINGUISHEDPRETERITION DISINHERITANCE

Deprivation of a compulsory heirof his legitime is tacit

Deprivation of a compulsory heir ofhis legitime is express

May be voluntary but the lawpresumes that it is involuntary

Always voluntary

Law presumes that there hasbeen merely an oversight ormistake on the part of the testator

Done with a legal cause

Omitted heir gets only his legitimebut also his share in the freeportion not disposed of by way oflegacies/devises

If disinheritance is not lawful,compulsory heir is merely restoredto his legitime

COMPULSORY HEIRSAccording to the Family Code, there are only 4 sets of compulsoryheirs:

1. Parents/ascendants2. Legitimate children/descendants3. Spouse4. Illegitimate children

REQUISITES OF PRETERITION1. There is TOTAL omission – Omission results in preterition only

when:a. The person is not an heir, not a devisee/legatee (he

receives nothing by will)b. No donation inter vivos given to him, which might be

taken or considered as an advance of his legitime. Ifhe is already given such, then he has received part ofhis legitime such that if he were omitted, his remedyis Art 906 i.e., demand for the completion of legitime

c. There must not have been anything which could beinherited by intestacy, which means that the wholeestate was distributed by will

If any part of the legitimate was paid to the compulsory heir inany form, either inter vivos or mortis causa, one cannot claimtotal omission and avail the benefits of preterition. If there ispayment of presumptive legitimes under Art 50 FC, one cannotavail of preterition.NOTE: Support is not deemed as inheritance since support isnot a gift.

2. The person omitted is a compulsory heir in the DIRECT LINE –Compulsory heirs in the direct line, specifically ascendants anddescendants and the adopted children can claim the benefit ofpreterition. Relations in a direct line are those that aretraceable between a descendant and an ascendant. Otherwise,the relations are in a collateral line.

ADOPTED CHILD – An adopted child does not become arelative in the direct line by legal fiction of adoption since thislegal fiction is only for purpose of filiation. However, anadopted child becomes a compulsory heir in the direct line ofhis adoptive parent. Hence, he can claim preterition under Art854

SPOUSE – A spouse is not a relative in the direct line. Thespouse merely becomes a relative by the fiction of the judge orpriest.

3. The preterited heir must SURVIVE the testator

ATTY SEBASTIAN: If the will is admitted to probate without mention ofheir, it does not automatically mean that the heir is preterited. Theremust be distribution of the estate.

LEGAL EFFECTS OF PRETERITION1. It annuls the institution of heir;2. The devises and legacies are valid insofar as they are not

inofficious; and3. If the omitted compulsory heir should die before the testator,

the institution shall be effectual, without prejudice to the right ofrepresentation.


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4. Intestate succession ensues. Where a one-sentence will institutes the petitioner as the

sole, universal heir and preterits the parents of thetestatrix and it contains no specific legacies or bequests,such universal institution of petitioner, by itself is void.(Nuguid v. Nuguid, GR No. L-23445, June 23, 1966)

NOTES:

It is essential that the omission of the compulsory heir must becomplete and total in character so that he receives nothing fromthe testator at all. (Jurado, p. 177)

Preterition of the surviving spouse (SS) does not entirely annulthe institution of the heir since SS is not a compulsory heir in thedirect line However, since Art 842 protects the legitime of theSS, the institution is partially annulled by reducing the rights ofthe instituted heir to the extent necessary to cover the legitimeof SS.

In case of omission without preterition, the rule of Art 855should be followed.

CASES:REYES V. BARRETTO-DATU, 19 SCRA 85 (1967)FACTS: Bibiano Barretto was married to Maria Gerardo. During theirlifetime they acquired a vast estate, consisting of real properties inManila, Pampanga, and Bulacan. When BibianoBarretto died in 1936, heleft his share of these properties in a will to Salud Barretto (Salud),mother of plaintiff's wards, and Lucia Milagros Barretto (Milagros) and asmall portion as legacies to his two sisters Rosa Barretto and FelisaBarretto and his nephew and nieces. The usufruct of the fishpondsituated in barrio San Roque, Hagonoy, Bulacan, above-mentioned,however, was reserved for his widow, Maria Gerard. In the meantime,Maria Gerardo was appointed administratrix. By virtue thereof, sheprepared a project of partition, which was signed by her in her ownbehalf and as guardian of the minor Milagros Barretto. Said project ofpartition was approved by the Court of First Instance of Manila. Thedistribution of the estate and the delivery of the shares of the heirsfollowed. As a consequence, Salud took immediate possession of hershare and secured the cancellation of the original certificates of title andthe issuance of new titles in her own name.

Maria Gerardo died and upon her death, it was discovered that sheexecuted two will. In the first will, she instituted Salud and Milagros asher heirs. In the second will, she revoked the same and left all herproperties in favor of Milagros alone. The later will was allowed and thefirst rejected. In rejecting the first will presented by Tirso Reyes, husbandof the deceased Salud, as guardian of the children, it was determined bythe lower court that Salud was not a child of Maria Gerardo and herhusband, Bibiano. This ruling was appealed to the Supreme Court,which affirmed the same.

Having thus lost this fight for a share in the estate of Maria Gerardo as alegitimate heir of Maria Gerardo, plaintiff now falls back upon theremnant of the estate of the deceased BibianoBarretto, which was givenin usufruct to his widow Maria Gerardo (fishpond property). Hence, thisaction for the recovery of one-half portion, thereof.

ISSUE: WON the partition from which Salud acquired the fishpond isvoid ab initio and that Salud did not acquire title thereto

HELD: No. Salud admittedly had been instituted as an heir in the lateBibiano’s last will and testament together with defendant Milagros;hence, the partition had between them could not be one such had with aparty who was believed to be an heir without really being one, and wasnot null and void under said article. The legal precept (Article 1081) doesnot speak of children, or descendants, but of heirs (without distinctionbetween forced, voluntary or intestate ones), and the fact that Saludhappened not to be a daughter of the testator does not preclude herbeing one of the heirs expressly named in his testament; for Bibiano wasat liberty to assign the free portion of his estate to whomsoever hechose. While the share (½) assigned to Salud impinged on the legitimeof Milagros, Salud did not for that reason cease to be a testamentary heirof Bibiano.Where a partition was made between two persons instituted as heirs inthe will, and one of them was found out later not to be the testator’sdaughter, while the other was really his daughter, it cannot be said thatthe partition was a void compromise on the civil status of the person whowas not the testator’s daughter. At the time of the partition, the civilstatus of that person was not being questioned. There can be nocompromise on a matter that was not an issue. While the law outlaws acompromise over civil status, it does not forbid a settlement by the


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parties regarding the share that should correspond to the claimant to thehereditary estate.

Where in a partition between two instituted heirs, one of them did notknow that she was not really the child of the testator, it cannot be saidthat she defrauded the other heir who was the testator’s daughter. Atany rate, relief on the ground of fraud must be obtained within 4 yearsfrom its discovery. When Milagros was 16 years old in 1939, when thefraud was allegedly perpetrated and she became of age in 1944, andbecame award of the fraud in 1946, her action in 1956 to set aside thepartition was clearly barred.

Preterition is the omission of one, some or all compulsory heirs in thedirect line, whether living at the time of the death of the testator, or bornsubsequent thereto. Among other things, Reyes holds that omission fromthe inheritance, as an element of preterition, must be a total omission,such that if a compulsory heir in the direct line received something fromthe testator under the terms of the will, such heir cannot be consideredpreterited

AZNAR V. DUNCAN, 17 SCRA 590 (1966)FACTS: Edward Christensen was a citizen of California and wasdomiciled in the Philippines. When he died he left a will which allegedthat he had only one child (Lucy Duncan), and that he was giving adevise of P3,600 to Helen Christensen (whom he alleged was not relatedto him). In the probate proceedings, the court ruled that Helen was anatural child of the deceased and that the properties of the decedent areto be divided equally between Helen and Lucy pursuant to the project ofpartition submitted by the administrator.

Lucy argued that this is not a case of preterition, but is governed by Art906 NCC which states that: “Any compulsory heir to whom the testatorhas left by any title less than the legitime belonging to him may demandthat the same may be fully satisfied.” Moreover, considering theprovisions of the will whereby the testator expressly denied hisrelationship with Helen, but left her to a legacy although less than theamount of her legitime, she was in effect defectively disinherited within

the meaning of Art 918 NCC. Thus, under Arts 906 and 918, Helen isonly entitled to her legitime, and not to a share equal to that of Lucy

ISSUE: WON the estate should be divided equally among the twochildren (Art 854) OR whether Lucy’s share should just be reduced tomeet the legitime of Helen (Art 906)

HELD: Helen should only be given her legitime since there was nopreterition. Manresa defines preterition as the omission of the heir of thewill, either by not naming him at all, or while mentioning him as father, son,etc., by not instituting him as heir without disinheriting him expressly, notassigning to him some part of the properties.

The decision in Neri v. Akutin is not applicable, because it referred to a willwhere "the testator left all his property by universal title to the children byhis second marriage, and (that) without expressly disinheriting the childrenby his first marriage, he left nothing to them, or at least, some of them." Inthe case at bar the testator did not entirely omit oppositor-appellee HelenGarcia, but left her a legacy of P3,600.00.

The concept of total omission from the hereditary estate is further explainedin this case. While the traditional concept of omission, based on RomanLaw, means that the compulsory heir was not instituted as an heir, the samewas abandoned so that if a compulsory heir were given a legacy by thetestator in the will (without instituting him or her as an heir), the saidcompulsory heir can no longer claim the benefit of Article 854.

One point deserves some consideration. Admittedly, the testator was acitizen of the State of California. Under the present Civil Code, "testate andintestate succession, both with respect to the order of succession and to theamount of successional rights and to the intrinsic validity of testamentaryprovisions shall be regulated by the national law of the person whosesuccession is under consideration." (Article 16, Civil Code) In theforegoing case, the estate of the testator was distributed in accordance withPhilippine law, taking into account the fact that Article 854 was made toapply. This point needs clarification.

NUGUID V. NUGUID, 17 SCRA 449 (1966)


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FACTS: Rosario Nuguid died on in 1962, single, without descendants,legitime or illegitimate. Surviving her were her legitimate parents, FelixNuguid and Paz Salonga Nuguid, and 6 brothers and sisters, namely:Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamedNuguid.

Petitioner Remedios filed for probate a holographic will allegedly executedby Rosario Nuguid some 11 years before her demise. Felix Nuguid and PazSalonga Nuguid, concededly the legitimate father and mother of thedeceased Rosario Nuguid opposed the probate on the ground that theywere preterited.

ISSUE: WON the will is a complete nullity due to preterition

HELD: Yes. The deceased Rosario Nuguid left no descendants,legitimate or illegitimate. But she left forced heirs in the direct ascendingline: her parents. And, the will completely omits both of them. They thusreceived nothing by the testament; tacitly, they were deprived of theirlegitime; neither were they expressly disinherited. This is a clear case ofpreterition.

The one-sentence will here institutes the petitioner as the sole, universalheir—nothing more. No specific legacies or bequests are therein providedfor. It is in this posture that the court says that the nullity is complete.Perforce, Rosario Nuguid died intestate.

The nullification of such institution of universal heir—without any othertestamentary disposition in the will—amounts to a declaration that nothingat all was written. Carefully worded and in clear terms, Article 854 offers noleeway for inferential interpretation

The devices and legacies shall be valid insofar as they are not inofficious.Legacies and devices merit consideration only when they are so expresslygiven as such in a will. Nothing in Article 854 suggests that the mereinstitution of a universal heir in a will - void because of preterition - wouldgive the heir so instituted a share in the inheritance. As to him, the will isinexistent. There must be, in addition to such institution, a testamentarydisposition granting him bequests or legacies apart and separate from thenullified institution of heir.

As a general rule, the area of inquiry of a probate court is limited to thetestamentary capacity of the testator and the due execution of the will.However, if it should appear on the face of the will that the sole dispositionis intrinsically invalidity, and that nothing is gained from an inquiry intoextrinsic validity, then a probe into the testamentary disposition, and theconsequential invalidation thereof is justified for practical considerations.While Article 854 annuls merely the institution of heir, the court is justifiedin declaring the entire will void if the only testamentary disposition in thequestioned will is the institution of the universal heir. In such a case, theeffect of the nullification of the testamentary disposition would be the sameas the nullification of the will itself.

BALANAY, JR. V. MARTINEZ, 64 SCRA 454 (1975)FACTS: Leodegaria Julian died in 1973. She was survived by herhusband, Felix Balanay, Sr., and by their six legitimate children, namely,Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B.Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition.for the probate of hismother's notarial will. Paragraph V of the will stated that after her husband'sdeath, her paraphernal lands and all the conjugal lands should be dividedand distributed in the manner set forth in that part of her will. She devisedand partitioned the conjugal lands as if they were all owned by her. Shedisposed of in the will her husband's ½ share of the conjugal assets.

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will onthe grounds of lack of testamentary capacity, undue influence, preterition ofthe husband and alleged improper partition of the conjugal estate.

ISSUE: WON the probate court erred in passing upon the intrinsic validityof the will, before ruling on its allowance or formal validity, and in declaringthe will void

HELD: Yes. The probate court erred in holding that he will was void andin converting the testate proceeding into an intestate proceeding despite anearlier Order giving effect to the surviving husband's conformity to the willand to his renunciation of his hereditary rights which presumably includedhis one-half share of the conjugal estate.


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The rule is that "the invalidity of one of several dispositions contained in awill does not result in the invalidity of the other dispositions, unless it is to bepresumed that the testator would not have made such other dispositions ifthe first invalid disposition had not been made" (Art 792 NCC). "Wheresome of the provisions of a will are valid and others invalid, the valid partswill be upheld if they can be separated from the invalid without defeatingthe intention of the testator or interfering with the general testamentaryscheme, or doing injustice to the beneficiaries"

The statement of the testatrix that she owned the "southern half" of theconjugal lands is contrary to law because, although she was a co-ownerthereof, her share was inchoate and pro indiviso (Art. 143, Civil Code). Butthat illegal declaration does not nullify the entire will.

The will is intrinsically valid and the partition therein may be given effect if itdoes not prejudice the creditors and impair the legitimes. The distributionand partition would become effective upon the death of Felix, Sr. In themeantime, the net income should be equitably divided among the childrenand the surviving spouse.

It should be stressed that by reason of the surviving husband's conformityto his wife's will and his renunciation of his hereditary rights, his one-halfconjugal share became a part of his deceased wife's estate. His conformityhad the effect of validating the partition made in paragraph V of the willwithout prejudice, of course, to the rights of the creditors and the legitimesof the compulsory heirs.

Balanay stresses the jurisdiction of the probate court. Unless the nullityof the will is patent on its face, the probate court should first pass uponthe extrinsic validity of the will before passing upon its substantivevalidity. Hence, the distinction between this case and Nuguid.

Upon the other hand, while the court correctly modified the husband's rightto waive his hereditary right with respect to the estate of the deceasedspouse, and his right to waive his half share in the conjugal estate, pursuantto the provisions of Art 750 and 752 NCC, the court was silent on thevalidity of the husband's conformity to the distribution of the conjugalestate in accordance with the terms of the will of the wife. Obviously, the

court assumed the validity of the renunciation of the husband of his share inthe conjugal estate. Such waiver, however, may fall into one of twopossible categories, i.e., inter vivos or mortis causa. If it was a waivereffective inter vivos, then it would have amounted to a donation to intervivos to the wife. That would have been illegal under existing laws. On theother hand, if it was a waiver mortis causa, then the formalities of a willshould have been observed, failing which, the waiver would be void.Furthermore, the waiver mortis causa would have required the wife tosurvive the husband. In either case, the alleged waiver by the husband of hishalf share in the conjugal estate resulted in a transmission of property to thewife. And consequently, a characterization of such waiver along theparameters mentioned above is necessary and inescapable. Thefundamental question, therefore, that demands an answer is whether or nota husband or wife could waive his or her share in the conjugal estate infavor of the other by an act inter vivos. We exclude, however, a waiverresulting from a successful petition for separation of property, and theliquidation of the conjugal partnership (or for that matter, the absolutecommunity of property) resulting from the issuance of a decree ofannulment or a decree of nullity.

It may be surmised that the validity of the waiver had to be assumed,properly or improperly, otherwise the case will fall under the provision ofArt 784 which categorically states that the making of a will is strictly apersonal act, and that the exercise of testamentary discretion cannot bedelegated by a person to another. In any case, Balanay leaves manyquestions unanswered. Let alone the fact that the decision did not discusswhy the husband was not preterited within the meaning of Art 854.

CAYETANO V. LEONIDAS, 129 SCREA 522 (1984)FACTS: Adoracion Campos died in 1977, leaving her father, petitionerHermogenes Campos and her sisters, private respondent Nenita C.Paguia, Remedios C. Lopez and Marieta C. Medina as the survivingheirs. As Hermogenes Campos was the only compulsory heir, heexecuted an Affidavit of Adjudication whereby he adjudicated untohimself the ownership of the entire estate of the deceased AdoracionCampos.


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Eleven months after, Nenita C. Paguia filed a petition for the reprobate ofa will of the deceased, Adoracion Campos, which was allegedlyexecuted in the United States and for her appointment as administratrixof the estate of the deceased testatrix. Nenita alleged that Adoracionwas an American citizen, at the time of her death and was a permanentresident of Philadelphia, PA USA. She died in Manila while vacationing.Adoracion made a last will and testament in 1975 according to the lawsof Pennsylvania. Since the administrator appointed was also a residentof the US, there was a need for the appointment of an administratrix tohandle Adoracion’s properties in the Philippines.

Hermogenes filed an opposition to the reprobate of the will since hebelieved that the will was a forgery and that the intrinsic provisions of thewill are null and void and that even if pertinent American laws on intrinsicprovisions are invoked, the same could not apply inasmuch as theywould cause him injustice and injury.

ISSUE: WON Hermogenes was preterited

HELD: No. As a general rule, the probate court’s authority is limited onlyto the extrinsic validity of the will, the due execution thereof, thetestatrix’s testamentary capacity and the compliance with the requisitesand solemnities prescribed by law. The intrinsic validity of the willnormally comes only after the court had declared that the will has beenduly authenticated. However, where practical considerations demandthat the intrinsic validity of the will be passed upon, even before it isprobated, the court should meet the issue.

The law which governs Adoracion Campos's will is the law ofPennsylvania, U.S.A., which is the national law of the decedent.Although the parties admit that the Pennsylvania law does not provide forlegitimes and that all the estate may be given away by the testatrix to acomplete stranger, the petitioner argues that such law should not applybecause it would be contrary to the sound and established public policyand would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions ofthe will, as provided for by Art16(2) and 1039 NCC, the national law ofthe decedent must apply.

Therefore, the settlement of the estate of Adoracion Campos wascorrectly filed with the Court of First Instance of Manila where she had anestate since it was alleged and proven that Adoracion at the time of herdeath was a citizen and permanent resident of Pennsylvania, UnitedStates of America and not a "usual resident of Cavite" as alleged by thepetitioner. Moreover, petitioner is now estopped from questioning thejurisdiction of the probate court in the petition for relief. It is a settled rulethat a party cannot invoke the jurisdiction of a court to secure affirmativerelief, against his opponent and after failing to obtain such relief,repudiate or question that same jurisdiction.

Art 854 does not apply in the case of a foreign testator who omits in hisor her will the compulsory heirs in the direct line. In the case of a foreigntestator, the conflict rule enunciated in Article 16 of the Civil Codeapplies. Therefore, regardless of whatever public policy or good customsmay be involved, the provision of Article 854 of the Civil Code cannot isnever meant to apply to a foreign testator.

ACAIN V. IAC, 155 SCRA 100 (1983)FACTS: In May 1984, petitioner Acain filed with RTC Cebu a petition forthe probate of the will of the late Nemesio Acain based on the premisethat the decedent Nemesio left a will in which petitioner and his siblingswere instituted as heirs. In the will, Nemesio bequeathed all hisproperties to his brother Segundo on the condition that if Segundopredeceases Nemesio, said properties will be given to Segundo’schildren (petitioner). Segundo predeceased before Nemesio. Thus, it isthe children of Segundo who are claiming to be heirs, with Constantinoas petitioner

Private respondents, Virigina (legally adopted daughter of the decedent)and Rosa (decedent’s spouse) filed a motion to dismiss on the followinggrounds:

a. The petitioner had no legal capacity to institute said proceedingsb. Petitioner is merely a universal heirc. The widow and the adopted daughter have been preterited

ISSUE: WON private respondents have been preterited

HELD: Yes. Preterition consists in the omission in the testator's will of theforced heirs or anyone of them either because they are not mentioned


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therein, or though mentioned, they are neither instituted as heirs nor areexpressly disinherited Insofar as the widow is concerned, Art 854 NCC maynot apply as she does not ascend or descend from the testator althoughshe is a compulsory heir. Stated otherwise, even if the surviving spouse is acompulsory heir there is no preterition even if she is omitted from theinheritance for she is not in the direct line. However, the same thing cannotbe said of the other respondent Virginia Fernandez, whose legal adoptionby the testator has not been questioned by petitioner. Under Art 39 of P.D.No. 603 (Child and Youth Welfare Code), adoption gives to the adoptedperson the same rights and duties as if he were a legitimate child of theadopted and makes the adopted person a legal heir of the adopter. Itcannot be denied that she was totally omitted and preterited in the will ofthe testator and that both adopted child and the widow were deprived of atleast their legitime. Neither can it be denied that they were not expresslydisinherited. Hence, this is a clear case of preterition of the legally adoptedchild.

Preterition annuls the institution of an heir and annulment throws open tointestate succession the entire inheritance. The only provisions which donot result in intestacy are the legacies and devises made in the will for theyshould stand valid and respected, except insofar as the legitimes areconcerned.

The universal institution of petitioner together with his brothers and sistersto the entire inheritance of the testator results in totally abrogating the willbecause the nullification of such institution of universal heirs - without anyother testamentary disposition in the will - amounts to a declaration thatnothing at all was written. Carefully worded and in clear terms, Article 854of the Civil Code offers no leeway for inferential interpretation. No legaciesnor devises having been provided in the will the whole property of thedeceased has been left by universal title to petitioner and his brothers andsisters. The effect of annulling the institution of heirs will be, necessarily, theopening of a total intestacy except that proper legacies and devises must,as already stated above, be respected.

SEANGIO V. REYES, 508 SCRA 177 (2006)FACTS: On September 21, 1988, private respondents filed a petition forthe settlement of the intestate estate of the late Segundo Seangio,docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the

appointment of private respondent Elisa D. Seangio-Santos as specialadministrator and guardian ad litem of petitioner DyYiengSeangio.

Petitioner DyYieng, Barbara and Virginia, all surnamed Seangio, opposedthe petition. They contended that: 1) DyYieng is still very healthy and fullcommand of her faculties; 2) the deceased Segundo executed a generalpower of attorney in favor of Virginia giving her the power to manage andexercise control and supervision over his business in the Philippines; 3)Virginia is the most competent and qualified to serve as the administrator ofthe estate of Segundo because she is a certified public accountant; and 4)Segundo left a holographic will, dated September 20, 1995, disinheritingone of the private respondents, Alfredo Seangio, for cause. In view of thepurported holographic will, petitioners averred that in the event thedecedent is found to have left a will, the intestate proceedings are to beautomatically suspended and replaced by the proceedings for the probateof the will.

ISSUE: WON there was preterition

HELD: No. With regard to the issue of preterition, the Court believes thatthe compulsory heirs in the direct line were not preterited in the will. It was,in the Court’s opinion, Segundo’s last expression to bequeath his estate toall his compulsory heirs, with the sole exception of Alfredo. Also, Segundodid not institute an heir to the exclusion of his other compulsory heirs. Themere mention of the name of one of the petitioners, Virginia, in thedocument did not operate to institute her as the universal heir. Her namewas included plainly as a witness to an altercation between Segundo andhis son Alfredo.

For disinheritance to be valid, Art 916 NCC requires that the same must beeffected through a will wherein the legal cause therefor shall be specified.With regard to the reasons for the disinheritance that were stated bySegundo in his document, the incidents, taken as a whole, can beconsidered a form of maltreatment of Segundo by his son, Alfredo, and thatthe matter presents a sufficient cause for the disinheritance of a child ordescendant under Art 919.


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Seangio resolves a number of legal questions. First, it confirms that wherethe sole disposition of a purported will is the disinheritance of a compulsoryheir, the disinheritance is considered a property disposition. Therefore, thedocument is must be considered a will because it conveys property.Second, the failure of the testator to institute an heir or to even mention byname any of the compulsory heir, per se, does not constitute preterition.Third, the Court gave an indication of what could constitute maltreatmentwhich would give an ascendant a ground to disinherit a descendant underArticle 919.

Art855. The share of a child or descendant omitted in a willmust first be taken from the part of the estate not disposed of bythe will, if any; if that is not sufficient, so much as may benecessary must be taken proportionally from the shares of theother compulsory heirs.

This article refers to a child or descendant “omitted in a will;” andmere omission in a will does not necessarily imply preterition becausethe compulsory heir may have received or may still receive a part ofthe inheritance in some concept other than by will. There is preteritiononly when the heir has been completely omitted from the inheritance,and not only in the will.

Art 855 does not formulate a rule for determining the extent orquantity of the share of the omitted child or descendant, but merelyprovides how that share, after it has been determined should be paid.

EXAMPLE: The testator instituted his only son A, as heir to ½ of hisestate and designated B (friend), as legatee to a sum of P5M. After thedeath of the testator, a posthumous child was born to him. Assumingthat the entire estate is P40M, ½ thereof or P20M is the free portionand the other ½ is the legitime of the two children. As the legacy to Bis not annulled and must be given effect. A was instituted to ½ of theestate, as such there is an undistributed portion of P15M. According toArt 855, Z is entitled to P10M to be taken from the undistributed freeportion. However, there is a balance of P5M available to the intestateheirs, A and Z.

The estate will be distributed as:A = P22.5M (P20M in the institution and P2.5M in intestacy)B = P5M as his legacyZ = P17.5M (P10M as his legitime and P2.5M in intestacy)

Art856. A voluntary heir who dies before the testator transmitsnothing to his heirs.

A compulsory heir who dies before the testator, a personincapacitated to succeed, and one who renounces the inheritance,shall transmit no right to his own heirs except in cases expresslyprovided for in this Code.

GENERAL RULE: No one can transmit to another more rights than hehimself has. Whether the heir is legal, voluntary or compulsory, hisdeath before the decedent, or his incapacity to succeed, or hisrepudiation or renunciation of the inheritance, prevents him fromacquiring any rights, therefore, he transmits nothing to his heirs.

EXCEPTION: The last part of Art 856 provides “except in casesexpressly provided for in this Code,” refers to cases where the right ofrepresentation exists. However, in the case of representation, the heirrepresented does not transmit his rights to the heir representing forthe representative acquires directly from the decedent if he hadinherited.

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