CHAPTER 2 TESTAMENTARY SUCCESSION SECTION 1. - Wills SUBSECTION 1. - Wills in General Art. 783.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

The making of a will is an act by which a person is permitted by law to repose his property effective upon his death. It is not a mode of transferring property because that is succession. It does not also consist of property, rights and obligations because that is inheritance. A will is an instrument wherein certain dispositions are made by persons to effect mortis causa.

According to Prof. Balane, the word "Person."-- refers only to natural persons. The phrase, "Permitted to control to a certain degree the disposition." means that the testator cannot deprive the compulsory heirs of their legitime in the will. If there are no compulsory heirs, the power of the decedent to dispose of his estate is absolute. If there are compulsory heirs, he only has a limited degree to dispose. That is why the will can only cover the disposable portion of the estate (free portion.) He also comments that the word "act." is too general and it is better that a word "document" is used because a will must be in writing. Elements of a Will: 1. It is strictly a personal act It cannot be delegated to a third person. The disposition of the will should be the disposition of the person. Since it is personal, will-making shall not be made in public. Even if a will is acknowledged before a notary public, a will is not a public document. Even a notary public is not required to keep a copy of the will. 2. There must be animus testandi (intent to make a will) One should know that the effect of such document is to transfer ones properties to a particular person mentioned in the document. 3. The making of a will is a statutory right, not a natural right 4. It is a solemn or formal act For the will to be valid, each form shall comply with the rules prescribed by the New Civil Code. 5. It is a unilateral act The testator cannot condition the validity of his will upon the consent of another. 6. The testator must be capacitated to make a will 7. It is free from vitiated consent 8. It is essentially revocable and ambulatory 9. It is an individual act, as distinguished from a joint act. The will must contain the act of only one person. Joint will are prohibited. 10. 11. It disposes of the testators estate in accordance to his wishes It is effective mortis causa

ARTICLE 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

The making of a will is a purely personal act. It is an exercise of the disposing power which can not be delegated. But the physical act of making a notarial will can be delegated to the secretary but not the execution or making of holographic wills. Example: Mr. A dictated to his secretary, Ms. B, the content of his notarial will and the latter wrote it down and typed. Is the will valid? Yes. What cannot be left in whole or in part to a third person is the exercise of the will making power, the exercise of the disposing or testamentary power. The mechanical act can be delegated.

Holographic wills are supposed to be entirely written, dated and signed in the hands of the testator. Even the mechanical act of drafting the will cannot be delegated to a third person.

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) Things Which Cannot be Delegated to a Third Person by the Testator: 1. Designation of heir, legatee or devisee, e.g., I hereby appoint X as my executor and it is in his discretion to distribute my estate to whomever he wants to give it. This cannot be done. 2. Duration or efficacy of such disposition like, "Bahala ka na, Ruben." 3. Determination of the portion to w/c they are to succeed, when referred to by name. Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a) Art. 786 is an exception to Arts 784 and 785. It covers things that are part of the essence of will making but allowed to be delegated. Requisites of Article 786: 1. 2. 3. 4. The testator entrusts to a third person The distribution of specific property or sums of money These specific property or sums of money are left in general to specific classes or causes There is the designation of the persons, institutions or establishments to whom such property or sums of money are to be given or applied

Examples of Prohibited Delegation: 1. Cannot delegate the designation of the amount of prop., e.g., I hereby set aside the sum P______________ which my executor may determine for the cause of mental health. The amount is not specified. 2. Cannot delegate the determination of causes or classes to which a certain amount is to be given, e.g., I hereby set aside P1M for such worthy causes as you may determine. This is not valid because the cause is not specific. By way of exception, there are 2 things which can be delegated. The testator must specify-(a) the amount of property; (b) the cause of classes of property-- before the delegation can take effect.

1. The designation of person or institution falling under the class specified by the testator. Choosing the members of the class but is restricted by the class designation, e.g., I hereby set aside the sum of P1M for the development of AIDS research. M will choose which institution. This is allowed because you have guided already M's decision. However, M cannot designate PCSO. 2. The manner of distribution or power of apportioning the amount of money previously set aside or prop. specified by the testator. Example: I designate the following hospitals to get the share in my estate and appoint M to apportion the amount of P10M. I set aside P250,000 for the following institutions: UP, PGH and Hospital ng Maynila, in an amount as my executor may determine. The above mentioned are exceptions to the rule that the making of a will are non-delegable.

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) : This provision clarifies what is meant that "a will is personal." This is in effect delegating the discretion to the disposition of the will. Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n)

Art. 788 is the rule on interpretation in order that the will may be valid and not perish. Rationale: The State prefers testate to intestate. Why? Because testamentary disposition is the express will of the decedent. Intestamentary is the presumed will of the decedent. This is mere speculation on what the decedent wanted. Ut res mages valet quam pereat.-- that the thing be valid than perish. Example: The word "chick" can have 2 interpretations: (1) a girl in which case inoperative because she is not within the commerce of man and (2) sisiw.-- operative. Interpret according to the second. Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

1. Kinds of Ambiguity in a Will: a. Patent, apparent - that which appears in the face of the will, e.g., "I give 1/2 of my estate to one of my brothers." Who among the brothers? This is patently ambiguous. b. Latent, hidden.-- which does not appear in the will or perfectly unclear on its face. The ambiguity arises when (1) there is imperfect description of the heir, legatee or devisee, or (2) when there is an imperfect description of the gift being given or (3) when only one recipient is designated but it turns out there are two or more that fit the description.

The ambiguity does not appear until you apply the provisions of the will, e.g., "I give to M the property intersecting Gil Puyat and P. Roxas Street. The ambiguity is determined only when the will is probated. That is, when it appears that I am the owner of all the 4 corners of the lot. Now which corner of those lots?

2. Rule: Clarify ambiguity and be guided by these: Testacy should be preferred or upheld as far as practicable. Any doubt shall be resolved in favor of testacy.

Q: How will you resolve the ambiguity? What evidence do you admit? Answer: You can admit any kind of evidence as long as relevant and admissible according to the Rules of Court. You can resort to EXTRINSIC EVIDENCE such as written declarations of the testator. Except: Oral declarations of the testator. Why? Because they cannot be questioned by the deceased. and easy to fabricate. of evidence you still cannot cure ambiguity, then annul the will. If the ambiguity is patent, disregard the will. If latent, look into the evidences allowed by law. If inspite

Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a)

Ordinary Terms GENERAL RULE: Give it an ordinary or literal meaning. EXCEPTION: If there is an intention to give it another meaning Technical Terms These are used by persons engaged in specialized activities in certain fields or profession. GENERAL RULE: Give it a technical meaning EXCEPTIONS: 1) If the testator himself made the will and it is very clear that he is unacquainted or unfamiliar with the term 2) If it is really the intention of the testator to give the technical word an ordinary meaning Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) 2 parts of Article 791: 1. The will must be interpreted as a whole 2. Testacy favored over intestacy Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) GENERAL RULE: The invalid dispositions will not affect the valid ones. The will remains valid. EXCEPTION: Entire will is invalidated or the valid dispositions are invalidated is if it is the intention of the testator that both the valid and invalid dispositions are to be indivisible, such that the other dispositions cannot be given effect if the other dispositions turn out to be invalid. Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) Article 793 covers those after-acquired properties after the execution of the will up to the time of the death

GENERAL RULE: Only those properties owned by the testator at the time of the execution of the will are included. Those acquired after the execution of the will are excluded. Example: In 1980, Juan made a will giving all his automobiles to Mario, his son. At the time he made the will, Juan had 3 automobiles. Juan died in 1990 where he had 5 automobiles. How much Mario will get? Answer: Mario will get only 3 automobiles because the 2 other automobiles were acquired after the making of the will. EXCEPTIONS: 1. 2. If the testator expressly provides in his will that properties acquired AFTER the execution of the will are included. If the will is republished or modified by a subsequent will or codicil, in which case, the properties owned at the time of such republication or modification shall be given. (Article 836) This is the effect of the execution of a codicil. Article 930 legacy or device belonging to another person is void as a general rule because the testator cannot give what he does not own. But if the testator later acquires the ownership, the legacy or devise can be given effect. Example: In 1980, T made a will giving all his 3 automobiles to Y. However, one of the automobiles was not really his. Ordinarily, Y will only get 2 automobiles. But if after making the will, T becomes the owner of the 3rd automobile and at Ts death, he was the owner of 3 automobiles, all said 3 automobiles will be given to Y. 4. Article 935 legacy of credit or remission of debt.

3.

Legacy of credit: Example: T is the creditor of B in the amount of P1000. T made a will in 1980 giving the credit to Y. In 1990, T died but he was paid during his lifetime by B the amount of P500, Y will only get the balance of P500. Another example: T is the creditor of B in the amount of P1000. T made a will in 1980 giving the credit to Y. in 1985, B borrowed again the amount of P500. In 1990, T died where B had the total obligation to T in the amount of P1500. How much will Y get? Only P1000 since the P500 is considered as an after acquired property. Legacy of remission: T is the creditor of B in the amount of P1000. T made a will in 1980 remitting the debt of B. In 1985, B paid T the amount of P600 not knowing the Will. In 1990, T died leaving the said Will. How much is the legacy remitted? P500 because this is still the remaining debt at the time of Ts death. -This applies even of the legatee or devisee instituted is a legal heir.

Professor Balane opines: It is better if this provision is not placed here. Why? Because property. acquired after the making of the Will will not pass unless there is a clear intention or express provisions that the property will be passed by the testator. Example: I give as legacy to Mario my cars. I only had 2 cars when I executed the will. After which I acquired 15 more cars. When I die, how many cars will Mario get? Following Art. 793, Mario will get only 2 cars. The additional cars are not included. It is because as a general rule in Art 793, after acquired property shall not pass. The exception is if the Will provides otherwise. Thus, I I said "all my cars when I die, " then that is only the time M gets all 17 cars. COMMENT: Art. 793 is inconsistent with Art. 777. At the time of the death, the succession will open. As such, all cars should be given. But the law should be applied as it is. No matter how inconsistent it is as pointed out by Sen. Tolentino. For as lawyers, you should advise your clients to be clear or clarify everything to avoid this ambiguity. Tell your clients to specify "as of the time of my death." The solution to this inconsistency between the two articles is to repeal Art. 793. Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

GENERAL General rule: The ENTIRE INTEREST of the testator in the property is given not more and not less. If the testator at the time of the making of the will has P1 million in the bank which he gave to the legatee, such P1million should be given, nothing more, nothing less. : All of the testators rights in a property are transmitted because it is presumed that the testator intended to dispose his whole interest in the property. EXCEPTIONS: 1. 2. 3. If it clearly appears in the will that the testator merely intend to convey a less interest If the testator clearly provided that he conveys a greater interest The testator can also give property which he knows is not owned by him

Example: I own a parcel of land. Only the ownership of the land can be given. If the testator is a usufructuary, he can only bequeath his rights as usufructuary, nothing more, nothing less.

-If the testator thought that the property was his, although it is not really his. The legacy or devise is void, unless he subsequently acquires the same. (Art. 930) Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

Kinds of validity of wills: 1. FORMAL or EXTRINSIC VALIDITY refers to the forms and solemnities and the formalities that have to be conformed and complied with in the execution of the will. A. EXTRINSIC VALIDITY

ARTICLE 17 NEW CIVIL CODE. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Extrinsic Validity can be viewed from 2 points: a. Viewpoint of TIME the extrinsic validity of a will depends upon the observance of the law enforced at the time the will is made, not at the time of death and not at the time of probate. Testator cannot possibly and is not expected to know what laws will govern in the future. b. Viewpoint of PLACE/COUNTRY i. ii. Testator is a Filipino who executes a will in the Philippines Philippine laws shall be applied Testator is a Filipino who executes a will abroad before the diplomatic or consular officials of the Philippines Philippine laws shall be applied. Testator is a Filipino who executes a will abroad not before a diplomatic or consular officials of the Philippines A. B. C. iv. Law of the place where he may be Article 815 Law of the place where he executes the will Article 17 Philippine law Article 815

iii.

Testator is an alien who executes a will abroad A. B. C. D. Law of the place where the will is executed Article 17 Law of the place of his residence or domicile Article 816 Law of his own country or nationality Article 816 Philippine law Article 816

v.

Testator is an alien who executes a will in the Philippines A. B. Law of the place where the will is executed (Philippines) Article 17 Law of his own country or nationality Article 817

ARTICLE 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) ARTICLE 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) ARTICLE 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) 2. INTRINSIC VALIDITY refers to the legalities of the provisions of wills such as the ORDER OF SUCCESSION, THE AMOUNT OF SUCCESSIONAL RIGHT and the intrinsic or other legalities of the provisions of the will.. B. INTRINSIC VALIDITY Intrinsic Validity can be viewed from 2 points: a. Viewpoint of TIME law enforced at the time of the death of the decedent ARTICLE 2263 NEW CIVIL CODE. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)

Example: A will was executed in 1910 without giving anything to his illegitimate child. If he died under the Old Civil Code, the illegitimate child does not have a successional right. If he died under the New Civil Code, illegitimate children have successional rights. Since the testator died during the effectivity of the New Civil Code, the will is intrinsically void.

b. Viewpoint of PLACE/COUNTRY law enforced is the national law of the decedent. This is regardless of the place of execution or the place of death of the decedent.

ARTICLE 16 NEW CIVIL CODE. situated. iatdc2005

Real property as well as personal property is subject to the law of the country where it is

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

SUMMARY as to Validity of wills:

EXTRINSIC 1. Governing law as to time 2. Governing law as to place

FOR FILIPINOS Article 795 law in force when will was executed Law of citizenship Law of domicile Law of residence Law of place of execution Philippine law FOR FILIPINOS Article 2263 law at time of death Article 16, Article 1039 Philippine law

FOR FOREIGNERS Same rule (assumption: will is being probated here) Law of citizenship Law of domicile Law of residence Law of place of execution Philippine law FOR FOREIGNERS Article 16, Article 1039 depends on personal law Article 16, Article 1039 national law

INTRINSIC 1. Governing law as to time 2. Governing law as to place

2 Proceedings if a person dies with a will: 1. Probate proper proceeding instituted to determine the genuineness and authenticity of a will. It is concerned only with the extrinsic validity of the will.

2.

Distribution proceedings intrinsic validity of the will is considered

GENERAL RULE: Foreign laws may not be taken judicial notice of and has to be proven like any other fact in dispute between the parties in any proceeding EXCEPTIONS: 1. 2. If the foreign laws are within the actual knowledge of the court; or When these laws have been considered before by the court in a previous case and the parties do not oppose as to the consideration of the court as to the existence of the foreign law.

Instances when the intrinsic validity of wills of foreigners is governed by Philippine laws. 1. DOCTRINE OF PROCESSUAL PRESUMPTION In the absence of evidence of foreign laws, it is presumed that it is the same as Philippine law. 2. RENVOI DOCTRINE (referring back) The testator is a national of another country but a Philippine resident. The national law of the decedent says that the intrinsic validity of a will should be governed by the place of his residence and not by his national law. In order to avoid international football, the Philippine court would in effect accept the RENVOI (the return or the referring back to us the problem by applying our INTERNAL LAW on succession. Hence, Philippine law will be applied. (Testate Estate of Edward Christensen, L16759, Jan 31, 1963)

SUBSECTION 2. - Testamentary Capacity and Intent SUBSECTION 2 Testamentary Capacity and Intent Testamentary power refers to the right or privilege given by the state to the individual to execute wills. Testamentary capacity refers to the qualification of a person to execute a will. A person may have testamentary power but no testamentary capacity There are persons who have testamentary capacity but they do not have testamentary power, like in some other countries But they may be used interchangeably

KINDS OF TESTAMENTARY CAPACITY 1. 2. Active Testamentary Capacity refers to the qualifications of persons to execute wills Passive Testamentary Capacity refers to the qualifications of persons to receive by virtue of a will. This would be discussed more exhaustively under the chapter on the capacity to succeed.

Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Testamentary Capacity 1. 2. 3. All persons not expressly prohibited by law. (Only natural persons, corporations are not allowed. 18 years old and above Sound mind it must exist at the time of the execution of the will.

How do you compute 18 years? 1. Theory under the Spanish Law Under the Spanish law, the 18th birthday should have passed or commenced before the person can execute a will. We follow Spanish Law Theory under the American Law It is sufficient that the day preceding ones birthday has already commenced. 3. Theory under the Civil Code You are already 18 years old 4 days before your birthday because under the Civil Code, 1 year is 365 days. And in 18 years, there are 4 leap years. So, 4 days prior to your birthday, under the Civil Code, you are already 18 years of age. Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) The first paragraph of Art. 799 does defines the meaning of sound mind in a negative way. That it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. Thus, paralysis and loss of speech, insomnia, diabetes, sleeping sickness, deafness, blindness, poor memory does not follow that a testator is of unsound mind. (Paras, Will and Succession, page 54) Manifestations of Unsound mind: Religious delusions, blind extra ordinary belief of spirits, monomania, insane delusions, drunkenness that impaired good judgment, idiocy congenital intellectual deficiency, comatose stage mand state of delirium. (Will and Succession, Paras, page 56)

2.

The second paragraph of Art 799 defines unsound mind in an affirmative way: 3 Requisites of a sound mind:

1. The testator must know the nature of the estate to be disposed of. (He knows that what he owns what he is giving and the nature of the estate he is disposing.) 2. He must know the proper objects of his bounty the persons in whose favor he is giving the estate like his children. 3. He must know the character of the testamentary act- (he knows that he really made a will and that it will take effect mortis causa.).

Degrees of Mental Incapacity or Incapacity 1. 2. 3. Idiots IQ average of 25; congenitally and intellectually deficient; considered as of unsound mind in succession. Imbecile IQ average of 26 to 50; mentally deficient; considered as of unsound mind in succession Moron IQ average of 51 to 70; they can do reading and writing; they can be self-supporting; considered as of sound mind in succession

GENERAL RULE: Testamentary incapacity invalidates the whole will. EXCEPTION: If the incapacity proceeds from a delusion on a particular subject and the product of such delusion might be declared invalid without affecting other portions of the will Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one 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 the testator made it during a lucid interval. (n) General rule: The law presumes that the time of the execution of the will the testator is of sound mind.. Effect of the presumption: The proponent of will does not have to prove the soundness of mind of the testator. Why? The law on evidence says that you do not have to prove: (1) that which is admitted; (2) that which is presumed; and (3) that which is taken judicial notice of. This disputable presumptions may be overcome by proof to the contrary. There are 3 presumptions of law: (1) conclusive (2) quasi-conclusive which can be overcome only by specific proof; (3) disputable.

WHEN IS UNSOUND MIND PRESUMED UNDER THE LAW?. (1) When the testator, one month, or less, before making his will was publicly known to be insane. Example: A, one month before making of the will was running in the Plaza Miranda naked and shouting "Ibagsak!" This is what you mean by publicly known. (2) When the testator was judicially declared insane before making his will; a). A guardian appointed by reason of insanity. (Rule 93, ROC.) b) If the insane was hospitalized by order of the court In these 2 cases, it is the proponent's duty to offer evidence to the contrary, i.e., prove that the making of the said will was made by the testator during a lucid interval. (3) When the testator has Insanity of a general or permanent nature shown to have existed at one time.

How to establish evidence of soundness of mind? 1. 2. 3. 4. You may use the testimony of the notary public The testimony of the attesting witnesses The testimony of the attending physician The testimony of other witnesses

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) This is the PRINCIPLE OF SUPERVENING CAPACITY This article makes explicit what was mentioned in Art. 800. The requirement is that sanity should exist only at the time of execution. Subsequent insanity does not affect the validity of the will nor an invalid will be validated by the recovery of the senses of the testator. Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.(n) What can the married woman or man disposed of in a will? 1. 2. He/she may dispose of his/her separate property; or He/she may dispose of his/her share in the conjugal/community property. If the spouse disposes of the entire community property, the disposition is only valid with respect to the portion pertaining to the share of the spouse who is the testator. The remaining portion becomes invalid. But if the spouse knows that he or she has no right to dispose of the share or his or her spouse but still he or she provides in the will that such portion or the entire portion be given to a certain person, in that case, you will learn later on that it is valid. What is to be done is for the estate to acquire the other portion. SUBSECTION 3. - Forms of Wills Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

What are the two (2) Kinds of Wills: 1. ORDINARY OR NOTARIAL WILL that which requires, among other things, an attestation clause and acknowledgement before a notary public. This will is ordinarily executed with the aid of a lawyer. There are witnesses and attestation clause. HOLOGRAPH OR HOLOGRAPHIC WILL wills which are ENTIRELY written, dated and signed in the handwriting of the testator. This also requires NO attestation clause or witnesses or acknowledgment.

2.

REQUIREMENTS OF NOTARIAL WILL UNDER ART 805. 1. It must be in writing handwritten, typed, printed on any written material. 2. Executed in a language or dialect known to the testator It may be English Tagalog known to him or dialect in his own locality.. 3. It must be subscribed (signed) at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction. It should be signed at the end of the will and not somewhere else. End of the will means the logical end not the physical end of the will. It is the page where the will is concluded. If only his first name is appearing- valid

Even if the testators name is misspelled, abbreviated, or by nickname or assumed named, as long as it is the intended signature. Testator can sign with his thumbmark, or with his initials, even rubber stamp or an engraved dye, provided that it is his intended signatures or even he is guided by another when he signs the same. Signing with a cross if he intends the same to be his signature. Signing buy the use of mark even if he knows how to sign his name. Somebody may write the testators name provided this is done in his presence and at the latter express direction. It should not be one of the witnesses. Somebody signing the name of the testator does not have to put his name. The delegate must sign in the presence of the testator and under his express direction. There must be no physical obstruction when somebody signs the name of the testator in his presence. The delegate must be expressly authorized to do so. Mere knowledge of the testator that somebody signs his name is not sufficient. Testator must expressly authorize another person.

4. It must be attested (ATTESTATION CLAUSE) and subscribed by three or more credible witnesses in the presence of the testator and of one another. -the signing of the attestation clause by the witnesses must be in the presence of the testator and one another. -There must be no physical obstruction in the signing by the 3 or more witnesses. Apply the TEST OF AVAILABLE SENSES the witnesses must be signing in their presence where there is no obstruction of their available senses. Reason: To avoid fraudulent substitution of the will, avoid invention of false testimony. They are in effect witnesses of one another. -The signing must be contemporaneous. It does not matter whether the testator ahead or before the testator. -The signing of the attestation clause must not be confused with the signing of the ACKNOWLEDMENT before a notary public. Here, it is not required that they should sign in the presence of one another or in the presence of the testator. 5. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin. - the signing of the testator and instrumental witnesses must be on the PAGE of the wills not sheet. If the will has two pages, the front and reverse, both must be paged. - the last page need not be signed in the left margin since their signatures already appear in the last page. -the last page contains the attestation clause, no need to sign the margin. -if only one page, marginal signatures are no longer required. - the purpose is served even f the marginal signatures are on the right, top or bottom. The purpose is only to identity the page used thus present farud. -failure to have marginal signatures of the testator and of witnesses when needed is FATAL DEFECT. Lacking of signature in one page invalidates the will. -The credible witness must be qualified and must sign in his usual signature. 6. All the pages shall be numbered correlatively in letters placed on the upper part of each page. 7. It must be attested and shall state: a) the number of pages used upon which the will is written. b) The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses. c) The instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

 1. 2.

No such thing as oral wills in the Philippines Nuncupative Wills are wills orally made by testator in contemplation of death and before competent witnesses. Nuncupative wills are not recognized in the Philippines. The presumption is that the testator knew the language used in writing the will There is no statutory requirement that the will should allege that the language used therein is understood by the testator There is no need to state in the Attestation clause that the will is in the language or dialect known to the testator That the will is in a language known to the testator can be proved by extrinsic evidence or even by parol or oral evidence If the will is executed in the locality where the testator lives, it is presumed that indeed the testator during his lifetime knew or understood the language or dialect in that locality The testator must know the language or dialect. No amount of interpretation or explanation will cure the defect Attesting witnesses are not required to know the language used in the body of the will Article 805 only applies to notarial wills. The requirements under Article 805 are to be strictly construed

Formal Requirements under Article 805: 1. Subscribed at the end by the testator himself or the testators name is written by some other person in the presence and under the express direction of the testator Subscription means the physical act of signing E-signatures cannot be affixed in a will because e-signatures are applicable only to transactions and contracts Signature must appear not the physical end but at the logical end of the will The presence of additional dispositions in a notarial will after the signature of the testator invalidates the entire will because it affects the form Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another in the presence of the testator and of one another not actually seeing but in a position to see if you want to see without any physical obstruction ATTESTATION Consists in witnessing the testators execution of the will in order to see and take note mentally that those things are done which the statutes require for the execution of the will and that the signature of the testator exist as a fact. Mental act of the senses. You see, smell, feel etc. The purpose is to render available proof of the authenticity of the will and its due execution. The act of the witnesses SUBSCRIPTION The signing of the witnesses name upon the same paper for the purpose of identification of such paper as a will executed by the testator.

2.

Mechanical act of the hand. The purpose is identification.

To attest a will is to know that it was published as such and to certify the fact required to constitute an actual or legal publication.

May be the act of the testator when the testator signs the will or the witnesses if the witnesses affixed their signature in the will. To subscribe a paper published as a will is only to write on the same paper then names of the witnesses for the sole purpose of identification.

Tests of Presence a. Test of vision b. Test of position c. Test of mental apprehension d. Test of available senses 3. The testator or the person requested by him to write his name and the credible witnesses of the will shall sign each and every page of the will, on the left margin, except the last page. Marginal witnesses are also the subscribing witnesses Purpose of the signing at the left-hand margin of the will is to identify the pages and to prevent fraud.

GENERAL RULE: Absence of signature on the first page of the will invalidates the will. EXCEPTIONS: 1. If the will contains only one page, then logically that one page already has the signature of the testator because he is required to sign at the end of the disposition and that also contains the signatures of the witnesses in the attestation clause. 2. Inadvertent lifting of pages. 4. All the pages shall be numbered correlatively in letters placed on the upper part of each page Correlative numbers in letter means One, Two, Three. But A, B C, or Page 1, page 2, page 3 or even plain number such as 1, 2 and 3 would amount to substantial compliance. (Book of PARAS) It is not necessary to number the first page nor even thelasp page for as long as the alst page is the attestation clause, it is understood already to be the last number. As long as the page number has a physical location, the will is still valid. The page number may even be incorporated in the text of the document itself If the will has only one page, the will is valid because you can easily detect whether there is loss of pages because if the one page is lost then there is no will to speak of Purpose of numbering the pages of a will: a) To guard against fraud; b) To forestall any attempt to suppress or substitute any of the pages; c) To afford means of detecting the loss of any of its pages; d) To prevent any increase or decrease in the pages.

ATTESTATION CLAUSE: ATTESTATION CLAUSE We, the undersigned attesting witnesses, do hereby affirm that the forgoing is the last Will and Testament of ___name of testator___ and we certify that the testator executed this document while of sound mind and memory. That the testator signed this document in our presence, at the bottom of the last page and on the left hand margin of each and every page, and we, in turn, at the testator's behest have witnessed and signed the same in every page thereof, on the left margin, in the presence of the testator and of the notary public, this _____ day of __________, 20__ at____________. It is the act of witnessing the execution of the will. It is a mental act. Attestation clause is that clause of an ordinary or notarial will wherein the witnesses certify that the instrument has been executed before them and the manner of execution of the same What do the subscribing witnesses attest to? 1. They attest to the genuineness of the signature of the testator 2. They attest to the due execution of the will What should the attestation clause state? 1. The number of pages used upon which the will is written 2. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction; 3. The signing by the testator or by the person requested by him in the presence of the instrumental witnesses; and 4. That the instrumental witnesses witnessed and signed the will and all he pages thereof in the presence of the testator and of one another.

-The absence of attestation clause is fatal to the will. -Failure to state the number of pages is fatal; defect. -Strictly speaking, it is not part of the will, but it maybe incorporated in the will. -It is the act of witnesses and need not contain the signature of testator. -testator is required to know the language of the will but the witnesses are not required to know it. It is sufficient that it be translated to them. PURPOSE OF ATTESTATION CLAUSE: 1. Preserve in permanent record of the facts attending the execution of the will so that in case of failure of the memory of sbcribing witnesses, they may still be proved. 1. To minimize commission of fraud.

FORM OF WILLS AND TESTAMENT: LAST WILL AND TESTAMENT

KNOW ALL MEN BY THESE PRESENTS: I, ____name of testator_____ , Filipino citizen, of legal age, single/married to ___insert name of spouse if any___, born on the ____th of ______________, ____ , a resident of __insert address__ , being of sound and disposing mind and memory, and not acting under undue influence or intimidation from anyone, do hereby declare and proclaim this instrument to be my Last Will and Testament, in English, the language which I am well conversant. And I hereby declare that: I. I desire that should I die, it is my wish to be buried according to the rites of the Roman Catholic Church and interred at our family mausoleum in Manila; II. To my beloved wife _____name of wife_____, I give and bequeath the following property to wit:_________________________ ; III. To my esteemed children, ________________________ and ______________________I give and bequeath the following properties to wit:_______________________________ in equal shares; IV. To my dear brother, __________________________I give and bequeath the following properties to wit:_______________________________. V. To my loyal assistant, __________________________I give and bequeath the following properties to wit:_______________________________. VI. I hereby designate ____name of executor_____ the executor and administrator of this Last Will and Testament, and in his incapacity, I name and designate _____________________ as his substitute. VII. I hereby direct that the executor and administrator of this Last Will and Testament or his substitute need not present any bond; VIII. I hereby revoke, set aside and annul any and all of my other will or testamentary dispositions that I have made, executed, signed or published preceding this Last Will and Testament. IN WITNESS WHEREOF, I have hereunto affixed my signature this ________ day of _____________, 20__, in ________________, Philippines.

_______________________________________ (Signature of Testator over Printed Name)

ATTESTATION CLAUSE We, the undersigned attesting witnesses, do hereby affirm that the forgoing is the last Will and Testament of ___name of testator___ and we certify that the testator executed this document while of sound mind and memory. That the testator signed this document in our presence, at the bottom of the last page and on the left hand margin of each and every page, and we, in turn, at the testator's behest have witnessed and signed the same in every page thereof, on the left margin, in the presence of the testator and of the notary public, this _____ day of __________, 20__ at____________.

______________________________ Signature of Witness ______________________________ Signature of Witness ______________________________ Signature of Witness

____________________________________________ Address ____________________________________________ Address ____________________________________________ Address

JOINT ACKNOWLEDGMENT

BEFORE ME, Notary Public for and in the city of ________________, personally appeared:

The testator ________________, with CTC No. __________ issued at ___________ on ____________;

Witness, ___________________, with CTC No. __________ issued at ___________ on ____________; Witness, ___________________, with CTC No. __________ issued at ___________ on ____________; Witness, ___________________, with CTC No. __________ issued at ___________ on ____________;

all known to me to be the same persons who executed the foregoing Will, the first as testator and the last three as instrumental witnesses, and they respectively acknowledged to me that the same as their own free act and deed. This Last Will and Testament consists of __ page/s, including the page on which this acknowledgment is written, and has been signed on the left margin of each and every page thereof by the testator and his witnesses, and sealed with my notarial seal. IN WITNESS WHEREOF, I have hereunto set my hand the day, year, and place above written.

Notary Public Doc. No. _____; Page No._____; Book No._____; Series of 20__.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n)

Acknowledgment is a statement made by the notary public that the testator and the witnesses have personally come before him, that they voluntarily executed the will and that they understood the contents. To acknowledge means to admit, to avow, to own as genuine A holographic will need not be acknowledged before a notary public. The testator acknowledges the execution of the will. The witnesses acknowledge the attestation clause. Acknowledgment need not be made in the presence of the testator and each and everyone of the witnesses. It is just required that the testator and the witnesses appear before the notary public, not actually at the same time. It is not required that the notary public before whom the will is acknowledged be present during the execution of the will. Absence of an acknowledgment is a fatal defect A notarial will is not a public document. Thus, notary public is not required to retain one or submit the same to the Clerk of Court. A notary public should not be one of the witnesses to the will.

1. Cruz v. Villasor.-- This case involves a will wherein the notary public was also one of the three instrumental witnesses. Did the will comply w/ the requirement of 3 witnesses? No. The SC gave 2 reasons: (1) The notary public can not be an oath witness and at the same time an oath taker. It is impossible for him to acknowledge before himself; (2) the aim of the notary public to insure the trustworthiness of the instrument would be lost bec. he will try to insure the validity of his own act. General rule: The notary public cannot be a witness. Exception: When there are more than 3 witnesses. In such a case, the requisite of 3 witnesses is achieved. 2. Gabucan v. Manta.-- In the case, the notarial acknowledgement of the will lacked a documentary stamp. As such the judge in the lower court denied probate. Does the absence of the documentary stamp invalidate the will? No. The absence of the documentary stamp does not affect the validity of the will. Its only effect is to prevent it from being presented as evidence. The solution is to buy a documentary stamp and attach it to the will. 3. Javellana v. Ledesma.-- The case deals w/ the question of whether or not the acknowledgement of the will should be done on the same occasion as the execution of the will. The SC said no. The law does not require that execution and acknowledgement be done on the same occasion. Acknowledgement may be validly done after execution. In fact, the testator and the witnesses do not have to

acknowledge together. You can acknowledge one by one. The law does not require it to be made simultaneously. As long as the testator maintains his testamentary capacity and the witnesses maintain their witnessing capacity until the last person acknowledges, then the will is valid. However, if the testator dies before the last person acknowledges, then the will is not valid. The will is considered as being unacknowledged. 4. Questions. Q1: Can a witness be an agent who will sign for the testator? A1: (a) Yes. There is no prohibition. (b) No. The testator must sign before 3 witnesses. He cannot sign before himself. To be safe, do not let this happen. As the lawyer, be sure you have at least 3 witnesses. Q2: Is there any particular order of signing? A2: attesting to. Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) This provision lists down a special requirement if a notarial will is executed by a deaf-mute testator. There are two cases contemplated: (1) If the testator can read, then he must read the will personally; (2) If illiterate, then 2 persons must read the will and communicate to him the meaning of the will in some practicable manner. -The law is not clear if the 2 persons reading it to him would do it separately or in consonance. (a) No. As long as the signing is done on one occasion or one continuing transaction. (b) Yes. If the signing is not done on one occasion or transaction. In such a case, there is nothing that the witness is

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

-If the testator is blind, the will must be read to him twice: (1) by one of the subscribing witnesses; and (2) by the notary public, not necessarily in that order. -Is the provision mandatory? Yes. If this is not followed, the will is void. (Garcia v. Vasquez.) In the case, the will was read to the testator only once. The SC denied probate of the will for failing to comply w/ the requirements of Art. 808. Such failure is a formal defect. b. Can this be presumed? No . c. Can this be proven to have been complied w/ by competent evidence? Yes. In the absence of w/c the will is void. Such fact or reading must be proven by evidence during the probate proceedings. - Purpose: The reading is mandatory for the purpose of making known to the testator the provision of the will so that he may object if it is not in accordance w/ his wishes. -If the testator is deaf-mute and also blind, as a rule he cannot make a will unless the contents thereof can be properly communicated to him in accordance with the legal requirements.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance w/ Articles 805 and 806 will validate the will despite some defects in the attestation clause.

Looking at Art. 809, you get the impression of utmost liberalization. We can not determine how liberal we can be or can we go. This article does not give a clear rule. JBL Reyes and Tolentino suggest that you make a distinction . Guide: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If not, then you have to be strict. Illustration: If in an attestation clause, the number of pages used was not stated, then you can liberalize because by examining the will itself, you can detect the defect. This is because the pagination of statement in the attestation clause is merely a double check. If the attestation clause failed to state that "the testator signed in the presence of witnesses," and this can not be remedied by visual examination of the will, then you need to be strict. Suggested amendment of the law: "If such defect and imperfections can be supplied by examination of the will itself and it is proved."

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) DEFINITION OF HOLOGRAPHIC WILL: A will which is entirely written, dated, and signed by the hand of the testator himself. Advantages: 1. Cheaper, simple, easier to revise, no notary public needed 2. Absolute secrecy is guaranteed- only you, the father and the members of the family will know its contents. Disadvantages: 1. Precisely because it guarantees secrecy and is simpler, it is also easier to falsify-- less people you need to collude with, unlike in notarial will, you need at least four (4) other people. 2. 3. 4. 5. It may not express testator's wishes due to faulty expression. No protection against causes vitiating consent because there are no witnesses-- danger is higher. Does not reveal testamentary capacity of testator due to lack of witnesses Easier to conceal than an attested will.-- you can allege that no will was made.

6. Generally, danger of ambiguity is greater than in attested wills because testator is not a lawyer, he may not understand technical and legal words. In attested will, the testator is assisted by a lawyer. JBL Reyes opines that the disadvantages outweigh the advantages. He suggested a middle ground, a mystic will (testamento cerrado.) It is not as strict as a notarial will, but not as fraught w/ risks as a holographic will. This kind of will is sealed in an envelope and brought to the notary who puts his seal and signs to authenticate, and it will be opened only upon the death of the testator. This kind of will minimizes the risk of fraud and protects the privacy of the testator.

B. Real Requirements.-- MANDATORY.-- must be by the hand of the testator himself. 1. Written entirely by the testator E.g., VOID. (c) If another person wrote an additional part w/ the knowledge of the testator, VOID. 2. Dated a. (1) Roxas v. de Jesus.-- On the will, the date was written as "Feb./ 61." Is it valid? Yes. General rule: Day, month and year must be indicated. It must be complete. Exception: When there is no appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is established, and the only issue is whether or not "Feb./61" is valid, then it should be allowed under the principle of substantial compliance. -Independence day. 1957 is all right. -June 8/57 is alright but June 5, ____ is not valid. (a) If partly by the testator and partly by another person, VOID (b) If another person wrote an additional part w/o knowledge of the testator, the will is VALID but the addition is

-How about February 31, 2012, it is valid provided it is done in good faith. (2) Labrador v. Ca.-- In this case , the date was indicated in the body of the will as part of the narration. Is this valid? Yes. It is not necessary that the will be separate from the body. In fact, it can be anywhere in the will as long as the date appears in the will. b. If the date is proven wrong, then its validity depends on whether the error is deliberate or not. If deliberate, the will is considered not dated and the will is void. If not deliberate, the date will be considered as the true date. c. Date is usually written by putting the day, month, and year. However, other ways may be adopted such as "Christmas day of 1995." 3. Signature - Commentators have said that the signature must consist of the testator's writing his name down. The reason for this is since he is able to write his will, then he is literate enough to write his name. -Full signature is needed. Customary signature is sufficient. -The signature must appear at the end of the will. There must be animus testandi.

GENERAL FEATURES OF HOLOGRAPHIC WILL: QUESTION: Are holographic wills in letters allowed? Yes, provided there is an intent on the part of the testator to dispose of the property in the letters and the 3 requisites are present. E.g., "I give you 1/2 of my estate as provided for in the document I kept in the safe." This is a holographic will because the letter does not in itself dispose of the property. QUESTION: Can a blind testator make a holographic will? Yes. There is no form required. What is important is the presence of the 3 requisites. No witnesses required. NO MARGINAL SIGNATURES ON THEPAGES ARE REQUIRED. No acknowledgment is required. In case of any insertion, alteration, cancellation, erasure, the testator must authenticate the same by his full signature. (Art 814) Maybe made in or out of the Philippines. (Art 810) Maybe made even by a blind testator, as long as literate, at least 18 years old and possessed a sound mind. It must be at testators handwriting but he may copy it in a draft prepared by a lawyer or another person and date and signs it. (Art 810)

Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a) Requirements in the Probate of Holographic Wills: 1. Documentary Requirement a. General rule: The will itself must be presented in court. Gan v. Yap.-- In this case, the proponent of the supposed will sought to establish its contents through extrinsic evidence. The SC denied such attempt to probate a holographic will that was not presented before the court. The SC said that the actual will should be presented to the court. The reason is that the will itself is the only material proof of authenticity. How can they oppose the will if the will is not there? Rodelas v. Aranza.-- In the case, the proponent of the will sought to present a copy of the holographic will to the court. The court allowed the production of the copy. The basis of this acceptance is the footnote no. 8 in the case of Gan v. Yan where the court said that "perhaps if a photostatic copy is presented..."

The merit of the Rodelas case is doubtful.. Authenticity of the will is based on the handwriting and the signature. Handwriting experts use as a bases the penlifts of the writer. In photocopies, penlifts are not discernible and so the experts are deprived of their basis in determining the authenticity of the will. b. Lost holographic wills can not be probated even by the testimonies of the witnesses. The reason is that the will itself is the only proof of its authenticity. 2. Testimonial Requirement; a. Uncontested will.-- only one witness to identify the signature and handwriting of the testator. b. Contested will.-- three witnesses to identify the signature and handwriting of the testator. Azaola v. Singson.-- In the case, the oppositors of the will contested the will on the ground that it was executed through fraud. They, however, admitted its due execution. During the case, the proponent presented only one witness to identify the signature and handwriting of the testator. Is one witness sufficient considering there is an oppositor to the will? Yes. The SC held that one witness is sufficient. What the law envisions is that the genuineness of the handwriting and signature be contested. Contested holographic will refers to the challenge by the oppositors that the will is not in the handwriting of the deceased. The oppositors in this case did not challenge the handwriting of the deceased. Their ground for opposing probate is that the will was executed through fraud and improper and undue influence. Hence, the probate required only one witness. The authenticity of the will is not contested. Therefore, the will itself, not being contested was that of the testator. The oppositors here precisely admit that authenticity of the will but oppose on the ground that there is fraud or undue influence initiated upon her in the execution of the will. Hence, it is uncontested. Obiter dictum: The three witness provision for contested holographic will is merely directory. The court upon satisfying itself of the authenticity of the will can require one or ten witnesses. The judge knows best. The second paragraph of Art. 811 gives the court discretion, hence the directory effect of the Art.-- (a) it is a matter of quality and not quantity; (b) to require 3 witnesses, makes it worse than treason, w/c requires only 2 witnesses. Which is better? One who testify but w/ unquestioned credibility or 20 AVSECOM witnesses? So do not rely on the quantity. The case of Azaola is merely a guide and interprets Art. 811 for us. It is not mandatory. It always depends on the judge.

Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n) Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. - To authenticate additional dispositions, the same must be signed and dated by the testator.

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. If a will has several additions, the testator has two options: (1) Sign each disposition and sign and date the last; or (2) Sign and date each one of the additions. RULES FOR CURING DEFECTS: 1. If the last disposition is SIGNED and DATED. A) preceding dispositions which are signed but NOT dated are validated.

B) preceding dispositions which are not signed but dated are void.

C) preceding dispositions which are not signed and dated are of course void unless written on the same date and occasion as the latter disposition.

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. Insertion, Cancellation, Erasure, or Alteration.-- Authenticate by "full signature," that is, in the manner the testator usually signs his name. Kalaw v. Relova.-- In the case, there were 2 alterations. In the first alteration, the name of Rosa as sole heir was crossed out and Gregorio's name was inserted. In the second alteration, the name of Rosa as executor was crossed out and Gregorio's name was inserted. The second alteration was initialed. Are the alterations valid? No. Alteration 1: Not signed, thus, not valid. Alteration 2: Initialed, thus, not valid; it must be full signature. Gregorio cannot inherit as a sole heir because it was not authenticated. Rosa cannot inherit as sole heir because her name was crossed out. This indicated a change of mind on the part of the testator. The SC held that a change done by cancellation and putting in a new name, w/o the full signature, is not valid. As such, the probate is denied and they both inherit by intestacy. According to Prof. Balane, Rosa should inherit as sole heir. The cancellation was not done properly since it was not signed. The effect is as if the cancellation was not done. If the testator wants to change his mind, he should reflect it in the proper way.

Q: How do we make a change in a notarial will? A: There is no provision of law dealing on this. The ordinary rules of evidence will apply. To prove change, the testator should affix either his signature or initials. The best way, however, is to have the testator and notary public sign. Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) SEE: THE FULL DISCUSSION UNDER ART. 795 ON EXTRINSIC and INTRINSIC VALIDTY OF A WILL. Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) Definitions.-- (a) A joint will is one document w/c serves as the will of 2 persons; this is prohibited; (b) A reciprocal will involves 2 instruments reciprocally making each other heir; this is not prohibited. MUTUAL WILLS or RECIPROCAL WILLS are wills of 2 persons wherein the disposition of one is made in favor of the other and the other also makes dispositions in favor of the other. This is also called TWIN WILLS. The Mutual or reciprocal wills are embodied in separate instruments. When the 2 dispositions are made in the same will, it becomes a joint will. Now, we have a Joint and Mutual will. When you have a Joint and Mutual will, it is prohibited under Article 818. Article 818 may cover a joint and mutual will or joint will wherein the benefit is not for the 2 parties who execute the will but for a third person. Not all mutual and reciprocal wills are joint wills.

Elements of a Joint Will: (a) one single instrument; (b) it is the will of 2 or more persons.

Why are Joint Wills Prohibited? A: (a) It encourages undue influence, murder, or attempt to kill the other because . generally, joint wills benefit each other. (b) It runs counter to the idea that wills are revocable. It makes revocation more difficult. E.g., tearing it up-destroys the will of another. (c) It undermines the personal element of a will.-- It becomes a multiple will. Examples: a. One sheet of paper. On each side is a will of one person. Is it valid? Yes, because. there are 2 documents. b. One sheet of paper. On the front page, on the upper half is a will of A. On the bottom half is the will of B. Is it valid? Yes. This is not a joint will because there are still 2 documents.

-The presumption is that wills are valid. The fault probably is in the wording of the law. Joint will-- one instrument. What the law prohibits is not 2 wills on the same sheet of paper but joint wills.

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a) This provision is an exception to the rule enunciated in Articles 815 to 817 that for Filipinos, as long as the will is valid in the place of execution, then it is valid in the Phils. -Filipinos, whether here or abroad, cannot execute joint wills. It is against public policy. Can aliens execute joint wills? a. If executed in the country where it is allowed, YES, it may be probated here. b. If made here and their country allows them to do this? There are 2 views on this: (i) Yes, follow the personal law. (ii) No because it is against public policy.