succession midterms

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SUCCESSION REVIEWERSUCCESSION REVIEWER UNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OFUNIVERSITY OF PERPETUAL HELP SYSTEM DALTA COLLEGE OF

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CHAPTER 1GENERAL PROVISIONS

ART. 774. Succession is a mode of acquisition byvirtue of which the property, rights andobligations to the extent of the value of theinheritance, of a person are transmittedthrough his death to another or others eitherby his will or by operation of law.

The Code has simplified the concept of succession andtreats it simply as one of the 7 Modes of AcquiringOwnership as enumerated in Art712 of the NCC.

7 MODES OF ACQUIRING OWNERSHIP1. Occupation2. Intellectual Creation3. Law4. Donation5. Estate and Intestate Succession6. Tradition7. Prescription

Overlap of Codal Definition with Art776

Article 774 talks of property, rights and obligationsto the extent of the value of the inheritance.

Article 776 talks of the inheritance as includingall the property, rights and obligations of a personwhich are not extinguished by his death.

For clarity and better correlation, Prof. Balaneopines that Art774 should rather read:

Succession is a mode of acquisition by virtue of whichthe inheritance of a person is transmitted through his death toanother or others either by his will or by operation of law.

And the inheritance which is transmitted through apersons death is defined by Article 776 to includeall the property, rights and obligations of a personwhich are not extinguished by his death.

What are Transmitted by Succession?

Only Transmissible Rights and Obligations.

General Rule if the right or obligation is strictly

personal [intuitu personae], it is intransmissible;otherwise it may be transmitted.

Rule Regarding Pecuniary Obligations

A literal construction of Art774 appears to implythat money obligations of the deceased would passto the heirs, to the extent that they inherit from him.

Seemingly, this article mandates that the

heirs receive the estate, and then pay offthe creditors.

However, Philippine procedural law, as influencedby the common-law system, lays down a differentmethod for the payment of money debts, as foundin Rules 88 to 90 of the Rules of Court. It is onlyAFTER the debts are paid that the residue ofthe estate is distributed among the successors.

Rule 90, Sec1 provides for the When the Order for theDistribution of Residue is made.

According to the rule, when the debts, funeralcharges and expenses of administration, theallowance to the widow and the inheritance taxhave all been paid, that is the only time that thecourt shall assign the RESIDUE of the estate topersons entitled to it.

The rule also provides that there shall be nodistribution until the payment of the obligationsenumerated above, have been made or providedfor. However, if the distributees give a bond for thepayment of the said obligations within such timeand of such amount as fixed by the court, the

distribution may be allowed.

In our system therefore, money debts are, properlyspeaking, not transmitted to the heir nor paid bythem. The estate pays them and it is only what isleft after the debts are paid [residue] that aretransmitted to the heirs.

ART. 775. In this Title, decedent is the generalterm applied to the person whose property istransmitted through succession, whether ornot he left a will. If he left a will, he is alsocalled the testator.

Decedent general term, person whose property istransmitted

Testator specific term, person who transmits hisproperty via a will.

It is unfortunate that the Code does not use the termIntestate to refer to a decedent who died without awill, This would have prevented the ambiguity nowinherent in the term decedent

ART. 776. The inheritance includes all theproperty, rights and obligations of a personwhich are not extinguished by his death.

Overlap of Codal Definition with Art776

Article 774 talks of property, rights and obligationsto the extent of the value of the inheritance.

Article 776 talks of the inheritance as includingall the property, rights and obligations of a personwhich are not extinguished by his death.

For clarity and better correlation, Prof. Balaneopines that Art774 should rather read:

Succession is a mode of acquisition by virtue of whichthe inheritance of a person is transmitted through his death toanother or others either by his will or by operation of law.

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And the inheritance which is transmitted through apersons death is defined by Article 776 to include allthe property, rights and obligations of a person whichare not extinguished by his death.

ART. 777. The rights to the succession are

transmitted from the moment of the death ofthe decedent.

Time of Vesting of Successional Right

Prof. Balane says the terminology used in this article isinfelicitous because the right to the succession is nottransmitted; but rathervested.

To say that it is transmitted upon death implies thatbefore the decedents death, the right to thesuccession was possessed by the decedent [whichis absurd].

To say that it vests upon death implies that beforethe decedents death the right was merely inchoate

[which is correct].

THE LAW PRESUMES THAT THE PERSONSUCCEEDING

1. Has a right to succeed by

a) Legitime [compulsory succession],b) Will [testamentary succession], orc) Law [intestate succession]

2. Has the legal capacity to succeed, and

3. Accepts the successional portion

The vesting of the right occurs immediately uponthe decedents death; i.e. without a momentsinterruption. From this principle, the following

consequences flow 1. The law in force at the time of the decedents

death will determine who the heirs should be

New Civil Code August 30, 1950

2. Ownership passes to the heir at the very momentof death, who therefore, from that momentacquires the right to dispose of his share.

3. The heirs have the right to be substituted for thedeceased as party in an action that survives.

Because the heir acquires ownership at

the moment of death and become partiesin interest.

It should be emphasized that the operation of Art. 777is at the very moment of the decedents death, meaningthe transmission by succession occurs at theprecise moment of death and therefore the heir,devisee, or legatee is legally deemed to haveacquired ownership at that moment, even if,particularly in the heirs case, he will generally notknow how much he will be inheriting and whatproperties he will ultimately be receiving, and not atthe time of declaration of heirs or partition ordistribution.

ART. 778. Succession may be:(1) Testamentary(2) Legal or Intestate, or(3) Mixed

ART. 779. Testamentary succession is that whichresults from the designation of an heir, madein a will executed in the form prescribed bylaw.

ART. 780. Mixed succession is that effected partlyby will and partly by operation of law.

3 KINDS OF SUCCESSION ACCDG TO ART. 778:1. TESTAMENTARY

That which results from the designation of

an heir, made in a will.2. LEGAL OR INTESTATE

Lost definition: takes place by operation

of law in the absence of a valid will.3. MIXED

That effected partly by will and partly by

operation of law.

Some observations

Enumeration cannot satisfactorily accommodate

the system of legitimes. Legal or intestate succession operates only in

default of a will [Arts960 and 961], while thelegitime operates whether or not there is awill, in fact prevails over a will.

There are instances where the rules on

legitime [Arts 887..] operate, to the exclusionof the rules on intestacy [Arts 960..]

It is therefore best for clarity, to classify

succession to the legitime as a separate anddistinct kind of succession, which, for want ofa better term, can be denominatedcompulsory succession.

Until the effectivity of the Family Code, there wasone exceptional case of succession by contract[contractual succession] found in Article 130 of CivilCode.

ART 130. The future spouses may give each otherin their marriage settlements as much as one-fifth of theirpresent property, and with respect to their future property,only in the event of death, to the extent laid down by theprovisions of this Code referring to testamentarysuccession.

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Donations propter nuptias of future property,

made by one of the future spouses to theother, took effect mortis cause, and had onlyto be done in the marriage settlements, whichwere governed only by the Statute of Frauds.

It was the only instance of Contractual

Succession in our civil law. This has been eliminatedby the Family Code

in Article 84 paragraph 2:

Donations of future property shall be governed bythe provisions on testamentary succession and theformalities of wills.

Since under the provision, any donation of

future property between the affianced coupleis to be governed by the rules of testamentarysuccession and the forms of wills, contractualsuccession no longer exists in this

jurisdiction.

Such a donation becomes an ordinary case of

testamentary succession.

FOUR KINDS OF SUCCESSION ACCORDING TOIMPORTANCE [Prof. Balane]

1. COMPULSORY

Succession to the legitime

Prevails over all other kinds

2. TESTAMENTARY [Art. 779]

Succession by will

3. INTESTATE

Succession in default of a will

4. MIXED [Art. 780]

Not a distinct kind really, but a

combination of any two or all of the firstthree.

ART. 781. The inheritance of a person includesnot only the property and the transmissiblerights and obligations existing at the time ofhis death, but also those which have accruedthereto since the opening of the succession.

Article 781 is best deleted; it serves only to confuse. The inheritance includes only those things enumerated

in Article 776. Whatever accrues thereto after the

decedents death [which is when the succession opens]belongs to the heir, not by virtue of succession, but byvirtue of ownership.

To say, as Art781 does, that accruals to the inheritanceafter the decedents death are included in theinheritance is to negate the principle in Art777 thattransmission takes place precisely at the moment ofdeath.

Once the decedent dies and the heir inherits, thefruits of the property or inheritance belongs to theheir by accession, and not by succession. This is

so even if the heir does not actually receive theinheritance.

Art781 should have left well enough alone.

Question If the assets left behind by the decedent arenot sufficient to pay the debts, may the creditors claimsthe fruits produced by the decedents property after his

death? Or do these fruits pertain to the heirs? But wouldnt the debts be deducted from the estate

first before the properties are distributed to theheirs?

ART. 782. An heir is a person called to thesuccession either by the provision of a will orby operation of law.

Devisees and legatees are persons towhom gifts of real and personal property arerespectively given by virtue of a will.

HEIR person called to the succession either by will orby lawDEVISEE persons to whom gifts of real property are

given by virtue of a will.LEGATEE persons to whom gifts of personal

property are given by virtue of a will. The distinction between an heir and a devisee or

legatee is important because on this distinctiondepends the correct application of Art854 on preterition.

In cases of preterition, the institution of an heir isannulled, while the institution of legatees and deviseesis effective to the extent that the legitimes are notimpaired.

The codal definitions are neither clear nor very helpful.

They are so open-ended that an heir can fall under thedefinition of a legatee/devisee and vice-versa.

I give X my fishpond in Navotas by definition ofheir, is not X called to the succession by provisionof a will and therefore an heir?

I give X of my estate if in the partition, Xreceives a fishpond, can X, by definition, not beconsidered a devisee, having received a gift of realproperty by will?

The definitions of the Spanish Code in conjunction withCastans explanations are more helpful:

HEIR one who succeeds to the WHOLE or an

Aliquot part of the inheritance

DEVISEE / LEGATEE those who succeed to

definite, specific, and individualproperties.

CHAPTER 2TESTAMENTARY SUCCESSION

SECTION 1 WILLS

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Subsection 1 Wills in General

ART. 783. A will is an act whereby a person ispermitted, with the formalities prescribed bylaw, to control to a certain degree the

disposition of his estate, to take effect afterhis death.

Operative Words in the Definition1. ACT

The definition of a will as an act is too broad

and should have been more clearly delimitedwith a more specific term such as instrumentor document, in view of the provision of

Art804 that every will must be in writing.

NUNCUPATIVE or oral wills are not

recognized in our Code, unlike the SpanishCivil Code wherein military wills could be oral.

2. PERMITTED

Will-making is purely statutory.

3. FORMALITIES PRESCRIBED BY LAW

The requirement of form prescribed

respectively for attested and holographicwills.

4. CONTROL TO A CERTAIN DEGREE

The testators power of testamentary

disposition is limited by the rules on legitimes.

5. AFTER HIS DEATH

Testamentary succession, like all other kinds

of succession in our Code, is mortis causa.

CCHARACTERISTICSHARACTERISTICS OOFF WWILLSILLS

1. PURELY PERSONAL

Articles 784, 785 and 787

2. FREE AND INTELLIGENT

Article 839 The testators consent should not be vitiated by

the causes mentioned in Article 839paragraphs 2-6 on Insanity, Violence,Intimidation, Undue Influence, Fraud andMistake.

3. SOLEMN AND FORMAL

Articles 804-814 and 820-821

The requirements of form depend on whether

the will is attested or holographic.

Articles 805-808 and 820-821 govern attested

wills. Articles 810-814 govern holographic wills.Article 804 applies to both.

4. REVOCABLE AND AMBULATORY

Article 828

5. MORTIS CAUSA

Article 783

This is a necessary consequence of Articles

774 and 777.

6. INDIVIDUAL

Article 818

Joint wills are prohibited in this jurisdiction.

7. EXECUTED WITH ANIMUS TESTANDI

This characteristic is implied in Article 783

Rizals valedictory poem Ultimo Adios was

not a will. An instrument which merelyexpresses a last wish as a thought or advice

but does not contain a disposition of propertyand was not executed with animus testandi,cannot be legally considered a will.

8. EXECUTED WITH TESTAMENTARY CAPACITY

Articles 796 803 on testamentary capacity

and intent

9. UNILATERAL

This characteristic is implied in Article 783

10. DISPOSITIVE OF PROPERTY

Article 783 seems to consider the disposition of

the testators estate mortis causa as thepurpose of will-making.

11. STATUTORY

Will-makin is a ermitted b statute.

The present Civil Code seems to limit the concept of awill to a disposition of property to take effect upon andafter death.

It is only when the will disposes of property, witherdirectly or indirectly, that it has to be probated. Whenthere is no disposition of property, it is submitted that,although the instrument may be considered as a will, itdoes not have to be probated; its dispositions which areprovided by law, such as the acknowledgment of a

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natural child or the order that the patria potestas of thewidow shall continue after her remarriage, can be giveeffect even without probating the will.

ART. 784. The making of a will is a strictlypersonal act; it cannot be left in whole or in

part to the discretion of a third person, oraccomplished through the instrumentality ofan agent or attorney.

This provision gives the will its purely personalcharacter.

NON-DELEGABILITY OF WILL-MAKING

It is the exercise of the disposing power thatcannot be delegated.

Obviously, mechanical aspects, such as typing, donot fall within the prohibition.

ART. 785. The duration or efficacy of thedesignation of heirs, devisees or legatees, orthe determination of the portions which theyare to take, when referred to by name, cannotbe left to the discretion of a third person.

What Constitute the Essence of Will-Making or theExercise of the Disposing Power? The ff are non-delegable:

1. The designation of heirs, devisees or legatees2. The duration of efficacy of such designation,

including such things as conditions, terms,substitutions;

3. The determination of the portions they are toreceive.

ART. 786. The testator may entrust to a thirdperson the distribution of specific property orsums of money that he may leave in generalto specified classes or causes, and also thedesignation of the persons, institutions orestablishments to which such property orsums are to be given or applied.

Exception to the Rule on Non-Delegability of Will-Making. Without this provision, the things allowed to bedelegated here would be non-delegable.

TWO THINGS MUST BE DETERMINED BY THETESTATOR 1. The property or amount of money to be given;

and2. The class or the cause to be benefited.

TWO THINGS MAY BE DELEGATED BY THETESTATOR

1. The designation of persons, institutions, orestablishments within the class or cause;

2. The manner of distribution

Question Suppose the testator specified therecipients by specific designation but left to the 3rd

person the determination of the sharing, ex. I leaveP500,000 for the PNRC, the SPCA, and the TalaLeprosarium, to be distributed among these institutionsin such proportions as my executor may determine.Valid?

One View Article 785 seems to prohibit this,because the recipients are referred to by name andtherefore the portions they are to take must bedetermined by the testator. Article 786 applies onlywhere the testator merely specifies the class or thecause but not the specific recipients.

Contra This actually involves a lesser discretionfor the 3rd person than the instances allowed by

Article 786 and should be allowed.

ART. 787. The testator may not make atestamentary disposition in such manner thatanother person has to determine whether or

not it is to be operative.

This rule is consistent with, and reinforces, the purelyperson character of a will, laid down in Article 784.

This article should be interpreted rationally. It is not tobe so interpreted as to make it clash with the principleexpressed in Articles 1041-1057 of the NCC that theheir is free to accept or reject the testamentarydisposition.

What this article prohibits is the delegation to a 3rd

person of the power to decide whether a dispositionshould take effect or not.

ART. 788. If a testamentary disposition admits of

different interpretations, in case of doubt, thatinterpretation by which the disposition is tobe operative shall be preferred.

Articles 788-794 lays down the rules of constructionand interpretation.

The underlying principle here is that testacy is preferredto intestacy, because the former is the express will ofthe decedent whereas the latter is only his implied will.

In statutory construction, the canon is: That the thingmay rather be effective than be without effect.

A similar principle in contractual interpretation is foundin Art1373, which provides that if some stipulation ofany contract should admit of several meanings, it shallbe understood as bearing that import which is mostadequate to render it effectual.

ART. 789. When there is an imperfect description,or when no person or property exactlyanswers the description, mistakes andomissions must be corrected, of the errorappears from the context of the will or fromextrinsic evidence, excluding the oraldeclarations of the testator as to his

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intention; and when an uncertainty arisesupon the face of the will, as to the applicationof any of its provisions, the testatorsintention is to be ascertained from the wordsof the will, taking into consideration thecircumstances under which it was made,

excluding such oral declarations.

2 KINDS OF AMBIGUITY REFERRED TO 1. LATENT not obvious on the face of the will

When there is an imperfect description or

when no person or property exactly answersthe description

a) Latent as to PERSON I institute to of my estate my first cousin Joseand the testator has more than onefirst cousin named Jose.

b) Latent as to PROPERTY I deviseto my cousin Pacifico my fishpond in

Roxas City and the testator hasmore than one fishpond in RoxasCity.

2. PATENT obvious on the face of the will

When an uncertainty arises upon the face of

the will, as to the application of any of itsprovisions

a) Patent as to PERSON I institute of my estate to some of my firstcousins.

b) Patent as to PROPERTY Ibequeath to my cousin Pacifico someof my cars.

In both cases, the ambiguity is evident

from a reading of the testamentaryprovisions themselves; the ambiguity is

patent[patere to be exposed]

HOW TO DEAL WITH AMBIGUITIES

The provisions of this article do not make adistinction in the solution of the problem ofambiguities whether latent or patent.

Hence, the distinction between the 2 kinds

of ambiguity is, in the light of the codalprovisions, an all but theoretical one.

The ambiguity should, as far as possible, becleared up or resolved, in order to give effect to the

testamentary disposition. Based on principle that testacy is

preferred to intestacy.

Ambiguity may be resolved using any evidenceadmissible and relevant, excluding the oraldeclarations of the testator as to his intention.

Reason for the statutory exclusion is that

a dead man cannot refute a tale.

ART. 790. The words of a will are to be taken intheir ordinary and grammatical sense, unlessa clear intention to use them in another sensecan be gathered, and that other can beascertained.

Technical words in a will are to be taken

in their technical sense, unless the contextclearly indicates a contrary intention, orunless it satisfactorily appears that he wasunacquainted with such technical sense.

Similar rules are laid down in Rule 130 Sections 10 and14 of the Rules of Court

Sec10. Interpretation of a writing according to its legalmeaning The language of a writing is to be interpreted accordingto the legal meaning it bears in the place of its execution, unless theparties intended otherwise.

Sec14. Peculiar signification of terms The terms of a writingare presumed to have been used in their primary and general

application, but evidence is admissible to show that they have alocal, technical, or otherwise peculiar signification, and were soused and understood in the particular instance, in which case theagreement must be construed accordingly.

In contractual interpretation, a similar principle isexpressed in Article 1370 par1:

Art1370. If the terms of a contract are clear and leave nodoubt upon the intention of the contracting parties, the literalmeaning of its stipulations shall control.

ART. 791. The words of a will are to receive aninterpretation which will give to everyexpression some effect, rather than onewhich will render any of the expressionsinoperative; and of two modes of interpretinga will, that is to be preferred which willprevent intestacy.

A similar rule is found in Rule 130 Sec11 of the RoC Sec11. Instrument construed so as to give effect to all

provisions In the construction of an instrument where there areseveral provisions or particulars, such a construction is, if possible,to be adopted as will give effect to all.

In contractual interpretation, Articles 1373 and 1374 laydown similar principles

Art1373. If some stipulation of any contract should admit ofseveral meanings, it shall be understood as bearing that import

which is most adequate to render it effectual.Art1374. The various stipulations of a contract shall be

interpreted together, attributing to the doubtful one that sense whichmay result from all of them taken jointly .

ART. 792. The invalidity of one of severaldispositions contained in a will does notresult in the invalidity of the otherdispositions, unless it is to be presumed thatthe testator would not have made such other

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dispositions if the first invalid disposition hadnot been made.

This article makes applicable to wills theSEVERABILITY OR SEPARABILITY PRINCIPLE instatutory construction frequently expressly provided in a

separability clause. The source of this article is Art2085 of the German CivilCode which provides that the invalidity of one of severaldispositions contained in a will results in the invalidity ofthe other dispositions only if it is to be presumed thatthe testator would not have made these if the invaliddisposition had not been made.

ART. 793. Property acquired after the making of awill shall only pass thereby, as if the testatorhad possessed it at the time of making thewill, should it expressly appear by the willthat such was his intention.

This article creates problems which would not haveexisted had it not been so nonchalantly incorporated inthe Code, an implant from the Code of Civil Procedureand ultimately from American law.

The problem springs from the fact that this articlemakes the will speak as of the time it is made, ratherthan at the time of the decedents death [which is morelogical because that is when the will takes effectaccording to Article 777].

Illustration X executes a will in 1985 containing alegacy: I give to M all my shares in BPI. The testatordies in 1990, owning at the time of his death ten timesas many BPI shares as he did when he made the will.

Under Article 793, the shares acquired after thewill was executed are NOT included in thelegacy.

Article 793 therefore departs from the codalphilosophy of Articles 774 and 776 and constitutesan EXCEPTION to the concept of succession aslinked to death and rendered legally effective bydeath.

Prof. Balane suggests the provisions be reworded as:Property acquired after the making of a will passesthereby unless the contrary clearly appears from thewords or the context of the will.

In the meantime, it is suggested that a liberal

application of the article be allowed. Can the word expressly in this article be

interpreted to mean clearly even if it might bestretching a point?

ART. 794. Every devise or legacy shall cover allthe interest which the testator could device orbequeath in the property disposed of, unlessit clearly appears from the will that heintended to convey a less interest.

This article should be read together with Art929, whichprovides that if the testator, heir, or legatee owns onlya part of or an interest in the thing bequeathed, thelegacy or devise shall be understood limited to suchpart or interest, unless the testator expressly declaresthat he gives the thing in its entirety.

GENERAL RULE in a legacy or devise the testatorgives exactly the interest he has in the thing.

EXCEPTIONS he can give a less interest [Art794] or agreater interest [Art929] than he has.

In the latter case, if the person owning the interestto be acquired does not wish to part with it, thesolution in Art931 can be applied wherein thelegatee or devisee shall be entitled only to theJUST VALUE OF THE INTEREST that shouldhave been acquired.

ART. 795. The validity of a will as to its form

depends upon the observance of the law inforce at the time it is made.

ASPECTS OF VALIDITY OF WILLSA. EXTRINSIC refers to the requirement of form

/ formal validity1. Governing law as to TIME

a. Filipinos law in force when the will wasexecuted [Art795]

b.Foreigners same rile. The assumptionhere is that the will is beingprobated in the Philippines.

2. Governing law as to PLACE

Filipinos or Foreigners

a. Law of citizenshipb. Law of domicilec. Law of residenced. Law of place of execution, ore. Philippine law

Articles 815-817 - Rules of formal validitya. Filipino Abroad - According to the law in

the country in which he may be andmay be probated in the Philippines

b. Alien abroad - Has effect in thePhilippines if made according to: Lawof place where he resides, Law of hisown country or Philippine law

c. Alien in the phils. - Valid in Phils. as ifexecuted according to Phil. laws, if:

Made according to law of countrywhich he is a citizen or subject, andMay be proved and allowed by law ofhis own country.

B. INTRINSIC refers to the substance of theprovisions / substantive validity

1. Governing law as to TIMEa. Filipinos law at the time of death,

in connection with Art2263.

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b. Foreigners depends on their personal law [Art16, par2 and

Art1039]

2. Governing law as to PLACEa. Filipinos Philippine law [Art16 par2

and Art1039]

b. Foreigners their national law [Art16par2 and Art1039]

Art2263 provides that Rights to the inheritance of aperson who died, with or without a will, before theeffectivity of this Code [August 30, 1950], shall begoverned by the Civil Code of 1889, by other previouslaws, and by the Rules of Court. The inheritance ofthose who, with or without a will, die afterthe beginningof the effectivity of this Code, shall be adjudicated anddistributed in accordance with this new body of lawsand by the Rules of Court; but the testamentaryprovisions shall be carried out insofar as they may bepermitted by this Code. Therefore, legitimes,betterments, legacies and bequests shall be respected;

however, their amount shall be reduced if in no othermanner can every compulsory heir be given his fullshare according to this Code.

Art16 par2 provides that intestate and testamentarysuccessions, both with respect to the order ofsuccession and to the amount of successional rightsand to the intrinsic validity of testamentary provisions,shall be regulated by the national law of the personwhose succession is under consideration, whatevermay be the nature of the property and regardless of thecountry wherein said property may be found.

Subsection 2 Testamentary Capacity

And Intent

ART. 796. All persons who are not expresslyprohibited by law may make a will.

ART. 797. Persons of either sex under eighteenyears of age cannot make a will.

ART. 798. In order to make a will it is essentialthat the testator be of sound mind at the timeof its execution.

ART. 799. To be of sound mind, it is notnecessary that the testator be in full

possession of all his reasoning faculties, orthat his mind be wholly unbroken,unimpaired, or unshattered by disease, injuryor other cause.

It shall be sufficient if the testator wasable at the time of making the will to know thenature of the estate to be disposed of, theproper objects of his bounty, and thecharacter of the testamentary act.

ART. 800. The law presumes that every person isof sound mind, in the absence of proof to thecontrary.

The burden of proof that the testator wasnot of sound mind at the time of making hisdispositions is on the person who opposes

the probate of the will; but if the testator, onemonth, or less, before making his will waspublicly known to be insane, the person whomaintains the validity of the will must provethat the testator made it during a lucidinterval.

ART. 801. Supervening incapacity does notinvalidate an effective will, nor is the will of anincapable validated by the supervening ofcapacity.

Articles 796-801 lay down the rules on testamentary

capacity. Testamentary Capacity testamenti factio;testamentifaccin active, the legal capacity to makea will.

Who has testamentary capacity? All NATURALpersons, unless disqualified by law. Juridicalpersons are NOT granted testamentary capacity.

DISQUALIFIED PERSONS1. THOSE UNDER 18 [ART797]

Under EO292, the Administrative Code of

1987, which took effect on November 24,1989, years are now reckoned according tothe Gregorian Calendar.

Sec31 provides for the legal periods

a) Year 12 calendar monthsb) Month 30 days, unless specific

calendar month is referred to, inwhich case it shall be computedaccording to the number of days thespecific calendar month contains

c) Day 24 hoursd) Night Sunset to sunrise

2. THOSE OF UNSOUND MIND [ART798]

Unsoundness of Mind [Insanity]

Absence of the qualities of soundness ofmind

Defined by the Code only by indirectionbecause only soundness of mind is

defined under Art799.

SOUNDNESS OF MIND [SANITY]

NEGATIVELY1. Not necessary that testator be in full

possession of reasoning faculties2. Not necessary that testators mind be wholly

unbroken, unimpaired, unshattered bydisease, injury or other cause.

POSITIVELY Ability to know 3 things1. Nature of estate to be disposed of

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Testator should have a fairly accurate

knowledge of what he owns.

The more one owns, the less accurate his

knowledge of his estate expected to be.

2. Proper objects of ones bounty; &

Testator should know, under ordinary

circumstances, his relatives in the mostproximate degrees, his knowledgeexpectedly decreasing as the degreesbecome more remote.

3. Character of testamentary act.

It is not required that the testator know the

legal nature of a will with the erudition of acivilest.

All that he need know is that the

document he is executing is one thatdisposes of his property upon death.

Legal Importance and Implication of Mental Capacity

Law is interested in the legal consequences of the

testators mental capacity or incapacity, not in themedical aspects of mental disease.

The testator could be mentally aberrant medicallybut testamentarily capable, or vice versa, mentallycompetent medically but testamentarilyincompetent.

TEST as long as the testator, at the time hemade the will, was capable of perceiving the threethings [nature of estate, objects of bounty, andcharacter of testamentary act], he hastestamentary capacity, whatever else he may bemedically.

PRESUMPTION / GENERAL RULE rebuttable

Presumption of Sanity under Art800. TWO EXCEPTIONS when there is a rebuttablepresumption of Insanity 1. When testator, one month or less before the

execution of the will, was publicly known to beinsane

2. When the testatorexecuted the will after beingplaced under guardianship or orderedcommitted, in either case, for insanity underRules 93 and 101 of the RoC, and before saidorder has been lifted.

The time for determining mental capacity

time ofexecution of the willand no other temporalcriterion is to be applied

ART. 802. A married woman may make a willwithout the consent of her husband, andwithout the authority of the court.

Sexist provision, contains an erroneous and unintendedsuggestion that a married man does not have the sameprivilege.

Suggested rewording

A married person may make a will without his orher spouses consent.

ART. 803. A married woman may dispose by willof all her separate property as well as her

share of the conjugal partnership or absolutecommunity property.

Sexist provision, contains an erroneous and unintendedsuggestion that a married man does not have the sameprivilege.

Article 97 of the Family Code supersedes this in part

Art97. Either spouse may dispose by will of his orher interest in the community property.

Subsection 3 Forms of Wills

ART. 804. Every will must be in writing and

executed in a language or dialect known tothe testator.

Art804 lays down Common Requirements that applyboth to ATTESTED and HOLOGRAPHIC wills.

Art805-808 lays down special requirements for attestedwills. Articles 810-814 lays down special requirementsfor holographic wills.

TWO COMMON REQUIREMENTS1. IN WRITING

Oral wills [the testamentum nuncupativum of

the Institutes] are not recognized in the CivilCode.

However, oral wills are allowed under the

Code of Muslim Personal Laws or PD1083 inrelation to Art102(2).

2. IN A LANGUAGE OR DIALECT KNOWN TO THETESTATOR

The provisions of Article 804 are

MANDATORY and failure to comply with thetwo requirements nullifies the will.

Neither the will nor the attestation clause

need state compliance with Art804. This canbe proved by Extrinsic Evidence.

Presumption of Compliance it may

sometimes be presumed that the testatorknew the language in which the will was

written.a) Will must be in a language or dialectgenerally spoken in the place ofexecution, and

b) The testator must be a native orresident of said locality.

ART. 805. Every will, other than a holographicwill, must be subscribed at the end thereof bythe testator himself or by the testators namewritten by some other person in his presence,

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and by his express direction, and attestedand subscribed by three or more crediblewitnesses in the presence of the testator andof one another.

The testator or the person requested byhim to write his name and the instrumental

witnesses of the will, shall also sign, asaforesaid, each and every page thereof,except the last, on the left margin, and all thepages shall be numbered correlatively inletters placed on the upper part of each page.

The attestation clause shall state thenumber of pages used upon which the will iswritten, and the fact that the testator signedthe will an every page thereof, or causedsome other person to write his name, underhis express direction, in the presence of theinstrumental witnesses, and that the latterwitnessed and signed the 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 the witnesses, it shall beinterpreted to them.

ART. 806. Every will must be acknowledgedbefore a notary public by the testator and thewitnesses. The notary public shall not berequired to retain a copy of the will, or fileanother with the Office of the Clerk of Court.

SPECIAL REQUIREMENTS FOR ATTESTED /ORDINARY / NOTARIAL WILLS -

1. Subscribed by the testator or his agent in hispresence and by his express direction at theend thereof, in the presence of the witnesses

Subscribed by the testator To subscribe

denotes writing, more precisely to writeunder. To Sign means to place adistinguishing mark.

Thus signing has a broader meaning than

subscribing. Not every signature is asubscription and not every distinguishingmark is a writing.

THUMBMARK AS SIGNATURE

a) Is the placing of the testators thumbprint

a signature within the contemplation ofthe article? YES, on the authority ofPayad v. Tolentino and Matias v. Salud,the testators thumbprint is always a validand sufficient signature for the purposeof complying with the requirement of

Art805.b) There is no basis for limiting the validity

of thumbprints only to cases of illness orinfirmity.

A CROSS AS SIGNATURE a sign of the

cross placed by the testator does not complywith the statutory requirement of signature,UNLESS it is the testators usual manner ofsignature or one of his usual styles of signing.

SIGNING BY AN AGENT OF THE

TESTATOR

Two Requisitesi. Must sign in the testators

presence, andii. By the testators express direction

What the agent must write need not bealleged in the will itself that agent wrotethe testators name under the lattersexpress direction

The essential thing, for validity, is that theagent write the testators name, nothingmore. It would be a good thing, but notrequired, for the agent to indicate the factof agency or authority.

May the agent be one of the attesting

witnesses?a) If there are more than 3 witnesses

YESb) If there are only 3 witnesses

Uncertain.

SIGNING AT THE END

If the will contains only dispositiveprovisions, there will be no ambiguity asto where the end of the will is. If howeverthe will contains non-dispositiveparagraphs after the testamentary

dispositions, one can refer to two kinds ofend

1. Physical End where the writingstops

2. Logical End where the lasttestamentary disposition ends

Signing at either the physical end orlogical end is equally permissible. Thenon-dispositive portions are not essentialparts of the will.

Signing before the end invalidates notonly the dispositions that come after, butthe entire will, because then one of the

statutory requirements would not havebeen complied with.

SIGNING IN THE PRESENCE OF

WITNESSES

Actual seeing is not required, but theability to see each other [the testator andthe witnesses] by merely casting theireyes in the proper direction.

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2. Attested and subscribed by at least threecredible witnesses in the presence of thetestator and of one another.

Two distinct things are required of the

witnesses here a) Attesting which is the act of

witnessingb) Subscribing which is the act of

signing their names in the properplaces of the will

Both must be done.

May the witness, like the testator, affix his

thumbmark in lieu of writing his name? Art820requires a witness to be able to read andwrite, but this does not answer the querydefinitively. The point is debatable.

Signing in the presence of the testator and of

one another - Actual seeing is not required,but the ability to see each other [the testatorand the witnesses] by merely casting theireyes in the proper direction.

3. Testator, or his agent, must sign every page,except the last, on the left margin in the

presence of the witnesses

The last page need not be signed by the

testator on the margin because, being thepage where the end of the will is, it alreadycontains the testators signature.

There is a Mandatory and a Directory part to

this requirement a) MANDATORY the signing on every

page in the witnesses presenceb) DIRECTORY place of the signing,

the left margin, the signature can be

affixed anywhere on the page. Signing in the presence - Actual seeing is not

required, but the ability to see each other [thetestator and the witnesses] by merely castingtheir eyes in the proper direction

4. The witnesses must sign every page, exceptthe last, on the left margin in the presence ofthe testator and of one another.

Order of Signing immaterial, provided

everything is done in a single transaction.However, if the affixation of the signatures isdone in several transactions, then it isrequired for validity that the TESTATOR affixhis signature ahead of the witnesses.

5. All pages numbered correlatively in letters onthe upper part of each page.

Mandatory and Directory part

a) MANDATORY pagination by meansof a conventional system. Thepurpose is to prevent insertion orremoval of pages

b) DIRECTORY pagination in letterson the upper part of each page.

6. Attestation clause, stating:a) Number of pages of the willb) Fact that the testator or his agent under

his express direction signed the will andevery page thereof, in the presence ofthe witnesses

c) The fact that the witnesses witnessed

and signed the will and every pagethereof in the presence of the testatorand of one another.

The attestation clause is the affair of

witnesses therefore, it need not be signed bythe testator.

The signatures of the witnesses must be at

the BOTTOM of the attestation clause.

If the entire document consists only of 2

sheets, the first containing the will and thesecond the attestation clause, there need notbe any marginal signatures at all [Abangan v.

Abangan]

The fact that the attestation clause was

written on a separate page has been held tobe a matter of minor importance andapparently will not affect the validity of thewill.

7. Acknowledgement before a notary public.

Code does not require that the signing of the

testator, witnesses and notary should beaccomplished in one single act.

All that is required in this article is that the

testator and witnesses should avow to thenotary the authenticity of their signatures andthe voluntariness of their actions in executingthe testamentary disposition. [Javellana v.

Ledesma]a) Ratio Certification of acknowledgement

need not be signed by notary in thepresence of testator and witnesses.

b) Art806 does not require that testator andwitnesses must acknowledge on thesame day that it was executed.

c) Logical Inference neither does thearticle require that testator and witnessesmust acknowledge in one anotherspresence. If acknowledgement is doneby testator and witness separately, all ofthem must retain their respectivecapacities until the last one hasacknowledged.

Notary cannot be counted as one of the

attesting witnesses.

Affixing of documentary stamp is not required

for validity.

Some Discrepancies

Par1 Art805 No statement that the testator mustsign in the presence of the witnesses

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1. COMPLETELY HANDWRITTEN BY THETESTATOR

If testator executes only part of the will in his

handwriting and other parts are not so written,the ENTIRE will is void because the articlewould be violated.

2. DATED BY HIM

Date Specification or mention, in a written

instrument, of the time [day, month and year]it was made [executed]. Blacks LawDictionary

As a general rule, the date in a holographic

will should include the day, month, and yearof its execution. However, when there is noappearance of fraud, bad faith, undueinfluence and pressure and the authenticity ofthe Will is established and the only issue iswhether or not the date FEB./61 is a validcompliance, probate of the holographic willshould be allowed under the principle of

substantial compliance. A complete date is required to provide against

such contingencies as a) Two competing wills executed on the

same day, orb) Of a testator becoming insane in the

day on which a will was executed.

The law does not specify a particular location

where the date should be placed in the will.The only requirements are that the date be inthe will itself and executed in the hand of thetestator.

3. SIGNED BY TESTATOR

Must signature be at the wills end [at least

the logical end]? YES, article 812 seems toimply this.

May the testator sign by means of a

thumbprint? NO, article says will must beentirely handwritten, dated and signed by thehandof the testator himself.

ART. 811. In the probate of a holographic will, itshall be necessary that at least one witnesswho knows the handwriting and signature ofthe testator explicitly declare that the will andthe signature are in the handwriting of thetestator. If the will is contested, at least three

of such witnesses shall be required.In the absence of any competent witness

referred to in the preceding paragraph, and ifthe court deem it necessary, expert testimonymay be resorted to,

Article applies only to POST MORTEM probates, itdoes not apply to Ante Mortem probates since in suchcases the testator himself files the petition and willidentify the document itself.

The three witness provision in case of contestedholographic wills is DIRECTORY, not mandatory.

Testamentary wills mandatory

Holographic wills directory

Witnesses must:1. Know the handwriting and signature of the

testator2. Truthfully declare that handwrit ing and

signature is that of the testator

In the probate of a holographic will, the document itselfmust be produced. Therefore, a holographic will cannotbe probated.

The execution and contents of a lost or destroyedholographic will MAY NOT BE PROVED by the baretestimony of witnesses who have seen and/or readsuch will. However, attested wills MAY BE PROVED bytestimonial evidence.

Why the difference in rules?

Because of the nature of the wills. In holographicwills, the only guarantee of authenticity is thehandwriting itself. In attested wills, the testimony ofsubscribing or instrumental witnesses and of thenotary guarantees authenticity of the will.

Loss of the holographic will entails loss of the onlymedium of proof while loss of the ordinary willleaves the subscribing witnesses available toauthenticate.

In the case of ordinary wills, it would be moredifficult to convince 3 witnesses plus the notary todeliberately lie.

Considering the holographic will may consist of 2-3pages and only one of them need be signed, thesubstitution of the unsigned pages may go

undetected.

In the case of a lost ordinary will, the 3 subscribingwitnesses would be testifying as to a FACT whichthey saw, namely the act of the testator ofsubscribing the will. Whereas in the case of a lostholographic will, the witnesses would testify as totheir OPINION of the handwriting which theyallegedly saw, an opinion which cannot be tested incourt nor directly contradicted by the oppositorsbecause the handwriting itself is not at hand.

EXCEPTION may be proved by a photographic orphotostatic copy, even a mimeographed or carboncopy, or by other similar means, if any, whereby the

authenticity of the handwriting of the deceased may beexhibited and tested before the probate court.

ART. 812. In holographic wills, the dispositions ofthe testator written below his signature mustbe dated and signed by him in order to makethem valid as testamentary dispositions.

ART. 813. When a number of dispositionsappearing in a holographic will are signedwithout being dated, and the last disposition

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Every testator, whether Filipino or Alien, wherever hemay be, has five choices as to what law to follow for theform of his will:

1. Law of his Citizenship Arts 816-817 for Aliens,Art15 for Filipinos

2. Law of place of Execution Art173. Law of Domicile Art816 for aliens abroad,

applying to aliens in the Philippinesand to Filipinos by analogy

4. Law of Residence - Art816 for aliens abroad,applying to aliens in the Philippinesand to Filipinos by analogy

5. Philippine Law Arts 816-817 for aliens, Art15 forFilipinos by analogy

ART. 818. Two or more persons cannot make awill jointly, or in the same instrument, eitherfor their reciprocal benefit or for the benefit ofa third person.

JOINT WILL one document which constitutes the wills

of two or more individuals. If there are separate documents, each serving as one

independent will even if written on the same sheet, theyare not joint wills prohibited by the article.

Reason for Prohibition of Joint Wills1. Limitation on modes of revocation

One of the testators would not be able to

destroy the document without also revoking itas the will of the other testator, or in anyeven, as to the latter, the problem ofunauthorized destruction would come in

2. Diminution of testamentary secrecy3. Danger of undue influence4. Danger of one testator killing the other

When a will is made jointly or in the same

instrument, the spouse who is more dominantis liable to dictate the terms of the will for hisor her own benefit or for that of the thirdpersons whom he or she desires to favor.

Where the will is not only joint but reciprocal,

either one of the spouses who may happen tobe unscrupulous, wicked, faithless ordesperate, knowing as he or she does theterms of the will whereby the whole propertyof the spouses both conjugal and paraphernalgoes to the survivor, may be tempted to kill ordispose of the other.

In Germany, joint wills are allowed but only between

spouses.

ART. 819. Wills, prohibited by the precedingarticle, executed by Filipinos in a foreigncountry shall not be valid in the Philippines,even though authorized by the laws of thecountry where they may have been executed.

Outline on Joint Wills1. By Filipinos in the Philippines VOID Art818

2. Filipinos Abroad VOID Art819, even if allowedby law in place of execution. This is anexception to the permissive provisions of

Arts17 and 815.3. Aliens Abroad VALID, Art8164. Aliens in Philippines Controverted, on one view

it is void because of public policy, another

view says it is valid because Art817governs.

5.Filipino and Alien Always VOID as to theFilipino, but either #3 or #4 governs,depending if he is abroad or in the Phils.

Subsection 4 Witnesses to Wills

ART. 820. Any person of sound mind and of theage of eighteen years or more, and not blind,deaf or dumb, and able to read and write, maybe a witness to the execution of a willmention in Article 805 of this Code.

ART. 821. The following are disqualified frombeing witnesses to a will:

(1) Any person not domiciled in thePhilippines

(2) Those who have been convicted offalsification of a document, perjury orfalse testimony.

SIX QUALIFICATIONS OF WITNESSES1. Of Sound Mind2. At Least 18 years of age3. Not Blind, Deaf or Dumb4. Able to read and write

5. Domiciled in the Philippines6. Must not have been convicted of falsification ofa document, perjury or false testimony.

As to applicability to wills executed abroad, testator mayresort to either executing a holographic will or followingthe law of the place of execution, if no such witnessesare readily available.

Competence v. Credibility

The competency of a person to be an instrumentalwitness to a will is determined by the statute under

Arts 820-821, whereas his credibility depends onthe appreciation of his testimony and arises fromthe belief and conclusion of the Court that said

witness is telling the truth.

ART. 822. If the witnesses attesting the executionof a will are competent at the time ofattesting, their becoming subsequentlyincompetent shall not prevent the allowanceof the will.

As in the case of testamentary capacity under Art801,the time of the execution of the will is the only relevant

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temporal criterion in the determination of thecompetence of the witnesses.

ART. 823. If a person attests the execution of awill, to whom or to whose spouse, or parent,

or child, a devise or legacy is given by suchwill, such devise or legacy shall, so far onlyas concerns such person, or spouse, orparent, or child of such person, or any oneclaiming under such person or spouse, orparent, or child, be void, unless there arethree other competent witnesses to such will.However, such person so attesting shall beadmitted as a witness as if such devise orlegacy had not been made or given.

Article is misplaced here because it talks aboutCAPACITY TO SUCCEED and not capacity to be awitness.

Article 823 lays down a disqualification of a witness tosucceed to a legacy or devise when there are only 3witnesses. Competence of the person as a witness isNOT AFFECTED.

Assuming all other requisites for formal validity aremet, the will is perfectly valid but the witness [orrelatives specified in the article] cannot inherit.

Article also applies to HEIRS. The intent of the law is tocover all testamentary institutions.

Disqualification applies only to the testamentarydisposition made in favor of the witness or the specifiedrelatives. If the party is also entitled to a legitime or an

intestate share, that portion is not affected by thepartys witnessing the will.

Question Supposing there are 4 witnesses, each arecipient of a testamentary disposition, are thedispositions to them valid or void?

Arguable

May say that dispositions are VALID because

the law only requires that there be 3 othercompetent witnesses to such will for thedisposition to be valid. For the witnesses to becompetent, they need only meet thequalifications in Art820 and have none of thedisqualifications in Art821.

May also say that dispositions are INVALIDbecause the intent of the law is to avoidwitnesses from attesting to the will based on thedispositions as a consideration for such act. Ifall of the witnesses are recipients oftestamentary dispositions, then there is greaterchance that they are all witnessing because aconsideration has been given to them.

ART. 824. A mere charge on the estate of thetestator for the payment of debts due at the

time of the testators death does not preventhis creditors from being competent witnessesto his will.

Because the debt or charge is not a testamentarydisposition.

Subsection 5 Codicils and IncorporationBy Reference

ART. 825. A codicil is a supplement or addition toa will, made after the execution of a will andannexed to be taken as a part thereof, bywhich disposition made in the original will isexplained, added to, or altered.

ART. 826. In order that a codicil may be effective,it shall be executed as in the case of a will.

Codicil v. Subsequent Will

Codicil explains, adds to or alters a disposition ina prior will.

Subsequent will makes independent and distinctdispositions.

But the distinction is purely academic becauseArt826 requires that the codicil be in the form of awill anyway.

Must the Codicil conform to the form of the will to whichit refers? NO. A holographic will can have an attestedcodicil and vice versa. Both may also be of the samekind.

ART. 827. If a will, executed as required by thisCode, incorporates into itself by referenceany document or paper, such document orpaper shall not be considered a part of thewill unless the following requisites arepresent:

(1) The document or paper referred to inthe will must be in existence at thetime of the execution of the will;

(2) The will must clearly describe andidentify the same, stating among otherthings the number of pages thereof;

(3) It must be identified by clear and

satisfactory proof as the document orpaper referred to therein; and

(4) It must be signed by the testator andthe witnesses on each and everypage, except in case of voluminousbooks of account or inventories.

Article only refers to documents such as:1. Inventories2. Books of Accounts3. Documents of Title

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4. Papers of Similar Nature DOES NOT include documents that make testamentary

dispositions, or else the formal requirements of a willwould be circumvented.

Can holographic wills incorporate documents byreference?

NO. Par4 of Art827 requires signatures of thetestator and the witnesses on every page of theincorporated document [except voluminousannexes]. It seems therefore that only attested willscan incorporate documents by reference, sinceonly attested wills are witnessed.

Unless testator executes a holographic will andsuperfluously has it witnessed.

Subsection 6 Revocation of WillsAnd Testamentary Dispositions

ART. 828. A will may be revoked by the testator atany time before his death. Any waiver orrestriction of this right is void.

A will is essentially REVOCABLE or AMBULATORY. This characteristic cannot be waived even by the

testator. There is no such thing as an irrevocable will. This characteristic is consistent with the principle in

Art777 that successional rights vest only upon death.

ART. 829. A revocation done outside thePhilippines, by a person who does not havehis domicile in this country, is valid when it isdone according to the law of the place wherethe will was made, or according to the law of

the place in which the testator had hisdomicile at the time; and if the revocationtakes place in this country, when it is inaccordance with the provisions of this Code.

RULES FOR REVOCATION

Revocation made in the Philippines.

Philippine Law

Revocation made Outside Philippines.1. Testatornot domiciledin Phils.

Law of place where the WILL was made

Law of place where the testator was

domiciled at time of revocation.

2. Testatordomiciledin Phils. [Art829] Philippine Law consistent with

domiciliary principle followed by this article

Law of place of Revocation principle of

lex loci celebrationis

Law of place where the WILL was made

by analogy with rules on revocation wheretestator is a non-Philippine domiciliary.

Curious that the law departs from the nationality theoryand adopts the domiciliary theory.

ART. 830. No will shall be revoked except in thefollowing cases:(1) By implication of law; or(2) By some will, codicil, or other writing

executed as provided in case of wills; or

(3) By burning, tearing, canceling, orobliterating the will with the intention ofrevoking it, by the testator himself, or bysome other person in his presence, andby his express direction. If burned, torn,cancelled, or obliterated by some otherperson, without the express direction ofthe testator, the will may still beestablished, and the estate distributed inaccordance therewith, if its contents, anddue execution, and the fact of itsunauthorized destruction, cancellation, orobliteration are established according to

the Rules of Court.

MODES OF REVOKING A WILL UNDERPHILIPPINE LAW

1. BY OPERATION OF LAW

May be total or partial

Examples of revocation by operation of law

a) Preterition Art854b) Legal Separation Art63 par4 FCc) Unworthiness to succeed Art1032d) Transformation, alienation or loss of the

object devised or bequeathed Art957e) Judicial demand of a credit given as a

legacy - Art936

2. BY A SUBSEQUENT WILL OR CODICIL

Requisites for valid revocation by a

subsequent instrument a) Subsequent instrument must comply

with formal requirements of a willb) Testator must possess testamentary

capacityc) Subsequent instrument must either

contain an express revocatory clauseor be incompatible with the prior will

d) Subsequent instrument must beprobated to take effect

Revocation by subsequent will may be Total

or Partial, Express or Implied

a) Total whole prior instrument isrevoked

b) Partial only certain provisions ordispositions of the prior instrument isrevoked

c) Express revocation of priorinstrument is stated in thesubsequent instrument

d) Implied incompatibility betweenprovisions of prior and subsequentinstruments.

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3. BY PHYSICAL DESTRUCTION Four ways to destroy

a) Burningb) Tearingc) Cancellingd) Obliterating

Physical destruction may be done by the

testator personally or by another personacting in his presence and by his expressdirection.

Unauthorized if without expressdirection of testator. But what if withexpress direction but not in hispresence?

Arguable. May say that it is authorizedand therefore the destroyed instrumentis revoked because of the intent andconsent of the testator to revoke anddestroy, and that the law does notprovide that without the testators

presence, destruction will becomeunauthorized.

On the other hand, it may be arguedthat the testators presence is requiredbecause at any time during the actualburning, destroying, etc. he may put astop to the destruction if he changeshis mind, and that is precisely why hispresence is required?

Effect of unauthorized destruction Will may

still be proved as lost or destroyed [Art830NCC and Rule 76 RoC]

However, this is possible only if the will

is attested; if the will is holographic, itcannot be probated if lost, even if theloss or destruction was unauthorized,unless a copy survives.

Elements of a Valid Revocation by Physical

Destructiona) CORPUS physical destruction itself;

there must be evidence of physicaldestruction

b) ANIMUS

Capacity and intent to revoke

Testator must have completedeverything he intended to do

Both corpus an animus must concur.

Loss or unavailability of a will may, under

certain circumstances, give rise to thepresumption that it had been revoked byphysical destruction

Where a will which cannot be found isshown to have been in the possessionof the testator when last seen, thepresumption is, in the absence of othercompetent evidence, that the samewas cancelled or destroyed.

Same presumption arises where it isshown that testator had ready accessto the will and it cannot be found afterhis death.

But such presumptions may beovercome by proof that the will was notdestroyed by the testator with intent torevoke it.

ART. 831. Subsequent wills which do not revokethe previous ones in an express manner,annul only such dispositions in the prior willsas are inconsistent with or contrary to thosecontained in the latter wills.

Revocation of a will by a subsequent will or codicil maybe express [through a revocatory clause] or implied[through incompatibility].

In the old Civil Code, mere fact of a subsequent will,provided that it is valid, revoked the prior one, exceptonly if the testator provides in the posterior will that the

prior will was to subsists in whole or in part. The present rule provides that the execution of a

subsequent will does not ipso facto revoke a prior one.

ART. 832. A revocation made in a subsequent willshall take effect, even if the new will shouldbecome inoperative by reason of theincapacity of the heirs, devisees or legateesdesignated therein, or by their renunciation.

Efficacy of the revocatory clause does not depend onthe testamentary disposition of the revoking will,

UNLESS the testator so provides. Revocation isgenerally speaking, an absolute provision, independentof the acceptance or capacity of the new heirs.

An EXCEPTION is where the testator provides in thesubsequent will that the revocation of the prior one isdependent on the Capacity or Acceptance of the heirs,devisees or legatees instituted in the subsequent will.

DEPENDENT RELATIVE REVOCATIO

DEPENDENT RELATIVE REVOCATION

Where the act of destruction is connected with themaking of another will as fairly to raise theinference that the testator meant the revocation ofthe old to depend upon the efficacy of the new

disposition intended to be substituted, therevocation will be conditional and dependent uponthe efficacy of the new disposition; and if, for anyreason, the new will intended to be made as asubstitute is inoperative, the revocation fails andthe original will remains in full force.

This is the doctrine of dependent relativerevocation. The failure of the new testamentarydisposition, upon whose validity the revocationdepends, is equivalent to the non-fulfillment of asuspensive condition, and hence prevents therevocation of the original will. But a mere intent to

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make at some time a will in place of that destroyedwill not render the destruction conditional. It mustappear that the revocation is dependent upon thevalid execution of a new will. [Molo v. Molo]

It must be remembered that dependent relativerevocation applies only if it appears that the testator

intended his at of revocation to be conditioned on themaking of a new will or on its validity or efficacy.

In Molo v. Molo, the Samson v. Naval doctrine wascited, providing that A subsequent will, containing aclause revoking a previous will, having been disallowed,for the reason that it was not executed in conformitywith the provisions of the Code of Civil procedure as tothe making of wills, cannot produce the effect ofannulling the previous will, inasmuch as said revocatoryclause is void.

Question supposing the institution of heirs, legateesor devisees in the subsequent will is subject to a

suspensive condition, is the revocation of the prior willabsolute or conditional?

Depends on the testators intent.

If the subsequent will contains a revocatory clausewhich is absolute or unconditional, the revocationwill be absolute regardless of the happening ornon-happening of the suspensive condition.

But if the testator states in the subsequent will thatthe revocation of the prior will is subject to theoccurrence of the suspensive condition, or if thewill does not contain a revocatory clause, therevocation will depend on whether the conditionhappens or not.

If the suspensive condition does not

occur, the institution is deemed never to

have been made and the prior institutionwill be given effect. [i.e. no revocation ofprior will]

This is in accord with the juridical nature

of suspensive conditions, and is aninstance of dependent relative revocation.

Is the rule on dependent relative revocation applicable ifthe revocation of the will is by physical destruction?

YES. If testator executes a subsequent willrevoking the prior will but conditioned on thevalidity of the subsequent will, then if thesubsequent will is declared invalid, the prior willsubsists.

In Molo v. Molo, in an obiter, SC held that thephysical destruction of the will DID NOT revoke it,based on the inference made by the court in thatcase, that the testator meant the revocation todepend on the validity of a new will.

But apart from the fact that the statement is obiterbecause the facts did not clearly show that the willhad been destroyed, it is arguable whether theprior will should be deemed to subsist despite itsphysical destruction. Can it not be argued that theact of the testator in destroying the will in factconfirmed his intent to revoke it?

In the case of Diaz v. De Leon, the testatorexecuted a prior will but destroyed it and executedanother will revoking the former. However, thesecond will was found to be not executed with allthe necessary requisites to constitute sufficientrevocation. The court then held that the intention ofrevoking the will was manifest from the fact that thetestator was anxious to withdraw or change theprovisions he had made in his first will. Therefore,the court concluded that original will presentedhaving been destroyed with animo revocandi, theoriginal will and last testament cannot be probatedand was effectively revoked.

In Molo, revocation of the prior will was not allowedbecause the court inferred that the testator meantrevocation to depend on the validity of the new will,so in that case the rule on dependent relativerevocation was applied.

However, in De Leon, court held that the testatorsintent to revoke the prior will was not dependent onthe validity of the subsequent will so even if the

second will was void and insufficient as revocation,the prior will was still revoked because suchrevocation was not dependent on the validity of thesecond will [?!!]

ART. 833. A revocation of a will based on a falsecause or an illegal cause is null and void.

Wills are revocable ad nutum or at the testatorspleasure. The testator does not need to have a reasonto revoke the will.

However, precisely because the law respects thetestators true intent, this article sets aside a revocation

that does not reflect such intent.

REQUISITES FOR A FALSE / ILLEGAL CAUSE TORENDER REVOCATION VOID

1. CAUSE MUST BE CONCRETE, FACTUAL ANDNOT PURELY SUBJECTIVE

If a testator revoked on the stated ground that

the heir was Ilocano and all Ilocanos are bad,it would just be prejudice and the revocationis valid because it is based on a subjectivecause.

2. IT MUST BE FALSE3. THE TESTATOR MUST NOT KNOW OF ITS

FALSITY

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4. IT MUST APPEAR FROM THE WILL THAT THETESTATOR IS REVOKING BECAUSE OF THECAUSE WHICH IS FALSE.

If the revocation is by physical destruction, and therevoked will is holographic, then though the revocationbe void, probate will not be possible, UNLESS a copy of

the holographic will survives.

The rule regarding nullity of revocation for an illegalcause limits the freedom of the testator to revoke basedon an illegal cause, but this is due to public policyconsiderations.

It must be noted that the illegal cause should be statedin the will as the cause of the revocation.

ART. 834. The recognition of an illegitimate childdoes not lose its legal effect, even though thewill wherein it was made should be revoked.

The part of the will which recognizes an illegitimatechild is NOT revocable because recognition is anirrevocable act. Therefore, even if the will is revoked,the recognition remains effective.

Under the Family Code, admission of illegitimatefiliation in a will would constitute proof of illegitimatefiliation. According to Article 175 of the Family Code

Art175. Illegitimate children may establish their illegitimatefiliation in the same way and on the same evidence as legitimatechildren.

The action must be brought within the same period specifiedin Art173, except when the action is based on the second paragraphof Art172, in which case the action may be brought during the

lifetime of the alleged parent.

Basically, the principle laid down in Art834 remainsunaltered regarding these admissions contained inwills.

Subsection 7 Republication andRevival of Wills

ART. 835. The testator cannot republish, withoutreproducing in a subsequent will, thedispositions contained in a previous onewhich is void as to its form.

ART. 836. The execution of a codicil referring to aprevious will has the effect of republishingthe will as modified by the codicil.

If the testator wishes to republish a will that is void as toform, the only way to republish it is to execute a

subsequent will and reproduce [copy out] thedispositions of the original will. Mere reference to theprior will in the subsequent will is not enough.

A will is void as to form if it does not comply with therequirements of Arts804-818; 810-814; 818-819.

PAHINAPAHINA 2020

RRE-E-CCAP OFAP OF FFORMALORMAL RREQUIREMENTSEQUIREMENTS

OF AOF A WWILLILL

1. ATTESTED/ORDINARY WILLa. Must be in writing

b. Executed in a language or dialect known to testator

c. Subscribed by the testator or his agent in hispresence and by his express direction at the endthereof, in the presence of the witnesses

d. Attested and subscribed by at least 3 crediblewitnesses in presence of the testator & of oneanother

e. Testator, or his agent, must sign every page,except the last, on the left margin in the presenceof the witnesses

f. The witnesses must sign every page, except thelast, on the left margin in the presence of thetestator and of one another.

g. All pages numbered correlatively in letters on theupper part of each page.

h. Attestation clause, stating:a) Number of pages of the willb) Fact that the testator or his agent under his

express direction signed the will and everypage thereof, in the presence of the witnesses

c) Fact that the witnesses witnessed and signedthe will and every page thereof in thepresence of the testator and of one another.

i. Acknowledgement before a notary public by thetestator and the witnesses.

j. Handicapped Testatora) Deaf or deaf-mute personally read the will if

able to do so, otherwise designate 2 personsto read and communicate it to him.

b)Blind read to him twice, once by asubscribing witness and another time by the

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RRE-E-CCAP OFAP OF FFORMALORMAL RREQUIREMENTSEQUIREMENTS

OF AOF A WWILLILL

k. Defects and imperfections in form of attestation and

language used shall not make the will invalid ifthere is substantial compliance with requirementsof Art805.

l. Law to be followeda. Filipino abroadb. Alien abroadc. Alien in the Philippines

m. Prohibition on joint wills, especially by Filipinoseven if executed in foreign country allowing jointwills.

n. Witnesses must possess all the qualifications inArt820 and none of the disqualifications in Art821.

2. HOLOGRAPHIC WILLa. Must be entirely writtenb. Executed in a language or dialect known to testatorc. Dated by the testator

d. Signed by the hand of the testator himselfe. Witnesses required

a) Knows the handwriting and signature of thetestator

b) Explicitly declares that the will and thesignature are in the handwriting of the testator

f. Dispositions below testators signature must also bedated and signed.

g. When several additional dispositions are signed butnot dated, the last disposition must be signed anddated to validate the dispositions preceding it.

h. Any insertion, cancellation, erasure or alteration mustbe authenticated by the testators full signature,otherwise it shall be deemed as not made.

i. Prohibition on joint wills, especially by Filipinos even ifexecuted in a foreign country where joint wills are

allowed.

If the testator wishes to Republish a will that is either:1. VOID for a reason other than a formal defect,

or2. Previously REVOKED

The only thing necessary to republish it is for thetestator to execute a subsequent will or codicilreferring to the previous will. There is no need toreproduce the provisions of the prior will in thesubsequent instrument.

Why the difference on the rules between nullity as to

form and nullity based on other grounds? Prof. Balanesays because Art835 is from Argentine Law whole

Art836 is from California Law. Go figure.

ART. 837. If after making a will, the testatormakes a second will expressly revoking thefirst, the revocation of the second will doesnot derive the first will, which can be revivedonly by another will or codicil.

IllustrationIn 1985, X executed will 1In 1987, X executed will 2 and expressly revoked

will 1In 1990, X executed will 3, revoking will 2

- When will 3 revoked will 2, it did not revive will 1.

This article is based on the theory of INSTANTREVOCATION

That the revocatory effect of the 2nd will isimmediate.

However, such theory is inconsistent with theprinciple that wills take effect mortis causa.

Furthermore, to be effective for the purpose ofrevoking the first will, the second will must beprobated. But it has already been revoked by thethird will. A revoked will now has to be submitted toprobate?

Article applies only when the revocation of the first willby the second will is EXPRESS. If the revocation by thesecond will is implied due to incompatible provisions,the article will not apply and the effect will be that thefirst will is revived.

However, when will 3 is itself inconsistent with will1, there is still revocation.

Also keep in mind Article 831 ImpliedRevocations only annul such dispositions in theprior wills as are inconsistent with or contrary to

those contained in the latter wills.

EXCEPTION when the second will is holographic andit is revoked by physical destruction, because then the

possibility of its probate is foreclosed, unless of coursea copy survives.

Subsection 8 Allowance andDisallowance of Wills

ART. 838. No will shall pass either real orpersonal property unless it is proved andallowed in accordance with the Rules of

Court.The testator himself may, during his

lifetime, petition the court having jurisdictionfor the allowance of his will. In such case, thepertinent provisions of the Rules of Court forthe allowance of wills after the testatorsdeath shall govern.

The Supreme Court shall formulate suchadditional Rules of Court as may benecessary for the allowance of wills onpetition of the testator.

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Subject to the right of appeal, theallowance of the will, either during the lifetimeof the testator or after his death, shall beconclusive as to its due execution.

Probate of a will is MANDATORY.

TWO KINDS OF PROBATE1. POST MORTEM after the testators death2. ANTE MORTEM during his lifetime, features:

Easier for the courts to determine mental

condition of a testator

Fraud, intimidation and undue influence are

minimized

Easier correction of formal defects in the will

Once a will is probated ante mortem, the only

questions that may remain for the courts todecide after the testators death will refer tothe intrinsic validity of the testamentarydispositions.

Rules on Probate for both post and ante mortem arefound in Rule 76 of the Rules of Court.

Finality of a Probate Decree

Once a decree of probate becomes final inaccordance with the rules of procedure, it is res

judicata.

Scope of a Final Decree of Probate

A final decree of probate is conclusive as to thedue execution of the will, i.e. as to the willsextrinsic and formal validity only.

ART. 839. The will shall be disallowed in any of

the following cases:(1) If the formalities required by law have

not been complied with;(2) If the testator was insane, or

otherwise mentally incapable ofmaking a will, at the time of itsexecution;

(3) If it was executed through force orunder duress, or the influence of fear,or threats;

(4) If it was procured by undue andimproper pressure and influence, onthe part of the beneficiary or of some

other person;(5) If the signature of the testator wasprocured by fraud;

(6) If the testator acted by mistake or didnot intent that the instrument hesigned should be his will at the time ofaffixing his signature thereto.

An Exclusive Enumeration of the grounds fordisallowance of a will.

These are matters involved in formal validity. Once aprobate decree is final, such decree forecloses anysubsequent challenge on any of the mattersenumerated in this article.

If any of these grounds for disallowance are proven, thewill shall be set aside as VOID.

A will is either valid or void. If none of the defectsenumerated in this article are present, it is valid; ifany one of these defects is present, the will is void.The issue of formal validity or nullity is preciselywhat the probate proceedings will determine.

There is no such thing as a Voidable Will.

GROUNDS FOR DISALLOWANCE OF A WILL1. FORMALITIES

Those referred to in Articles 804-818, 818-

819 and 829-821

2. TESTATOR INSANE OR MENTALLYINCAPABLE AT TIME OF EXECUTION

Articles 798 801 on testamentary capacity

and intent

3. FORCE, DURESS, INFLUENCE OFFEAR OR THREATS

Force or Violence when in order to wrest

consent, serious or irresistible force isemployed.

Duress or Intimidation when one of the

contracting parties is compelled by areasonable and well-grounded fear ofimminent and grave evil upon his person orproperty, or upon the person or property ofhis spouse, descendants or ascendants, togive his consent. Age, sex and condition ofthe person are borne in mind. Threat toenforce a just or legal claim throughcompetent authority does not vitiate consent.

4. UNDUE & IMPROPER PRESSURE ANDINFLUENCE

Undue Influence when a person takes

improper advantage of his power over the willof another, depriving the