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Succession - part 2 (Albano)

Will was admitted to probate

Holographic will

This means that the criminal case has

to be dismissed
because that is
res judicata with respect to criminal
case

1.

In writing

2.

Dated

When the will was admitted to probate,

it is the best evidence of its due
execution

3.

Completely signed by the hand of the

testator

There is no perjury when the will is duly

executed
Criminal case has to be dismissed

Even if it does not have a complete date, it is

deemed to be a complete because it can be
proven that it was executed at any day in
February 1985

No signature of the testator in holographic will

1.

The traditional signature

If there is alteration, then it must be

authenticated by the complete signature of the
testator

If there are addendums but not signed, those

addendums of additional provisions cannot be
considered as valid.

Blind person can execute a will

1.

Subject to a two reading rule

2.

Must be explained to a language or

dialect known to the testator by the
notary public and one of the
instrumentality witnesses

3.

Matters to prove in filing petition for probate

1.

Only extrinsic

2.

Not intrinsic

Except when there is preterition

Preterition goes into the intrinsic validity of
the will (Nepomuceno vs CA)
The effect of preterition is it annuls the
institution of heirs
So that
what is the point of proving the
extrinsic validity of the will if it is
intrinsically invalid
There will be no use of proving the extrinsic
validity of the will if it intrinsically invalid
It will just be a waste of time
money

and

But the general rule remains that the court

in admitting a will for probate will only
consider the extrinsic validity of the will

Revocation (acts)
1.

By implication of law

If read or explained only once, not

valid. Substantial compliance cannot
be invoked. It is a mandatory
requirement to read twice.
The
purpose is to safeguard the persons
right

(a) Sale of the properties that has

already been bequeathed by virtue
of last will and testament means
that there is revocation by
implication of law.

As exception, if while being read by

the notary and everybody has a copy
of the will
and it was read
simultaneously with the witnesses, it
is a substantial compliance.

(b) A husband instituted by the wife in

the will
later on pronounced as
the guilty spouse in an action for
legal separation
between them
means that there is revocation
by implication of law.

Alvarado principle:
The implication is that the will is
revoked by operation of law
Effect of admission of the will to probate
1.

(c) Codicil may revoke the last will and

testament by operation of law

It is the best evidence of its due

execution
2.
Pending case of perjury

Overt act

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(a) Cancellation of signature by the
testator in his last will of testament

Such cancellation of signature goes

into the very heart of the last will
and testament

Without the signature, the

document is no more heart or life
or effect
(b) Tearing, burning

Institution and Recognition of an illegitimate

child in the will
1.

If the testator revokes that will where

he recognized that illegitimate child,
such recognition of the illegitimate
child is not revoked (834)
In other words, the revocation of the
will containing recognition of the
illegitimate child does not carry with it
the revocation of the such recognition
of the status of said child

Only the testamentary provision in the

will is deemed revoked but not the
recognition of the child

It is an authentic writing which the

child may use as proof of filiation

It can be used by the child to file for

petition for intervention using that
authentic writing as proof of filiation

INSTITUTION OF HEIRS
1.

The purpose is so that when you die

somebody will take that portion of your
estate

2.

When you did not specify the share of

your brothers who are full blood and
some other are of half blood, they
are to be presumed to be getting
equally

3.

You can institute your parents

4.

You can institute strangers

5.

But you are limited by principle of

preterition (854)

PRETERITION
1.

Total omission of compulsory heir in the

direct line

2.

If you do not institute your children,

then there is preterition

3.

If you do not institute your spouse,

there is no preterition as she is not
an heir in the direct line

4.

If you disinherit a child without any of

the grounds provided in the law, then
there is preterition

5.

If there is a valid disinheritance but no

institution of heirs,
the
disinheritance will be effective only
after the will has been admitted to
probate

Proofs of filiation
1.

Record of birth

2.

Record of the court

3.

Authentic writing
a.

Can be a last will and

testament

b.

Can be a holographic will

While there is mention of person

disinherited, there is no mention of
persons to inherit.

Even if the holographic will is not

submitted for probate, it can be used
by a child to prove his filiation

There is still no preterition because if

you were not disinherited as a
compulsory heir,
it means that
you are entitled to take from the estate

In notarial will which contains

recognition of the child, its revocation
does not carry with it the revocation of
the said recognition

You are still going to be considered as

an heir of your father

Document of recognition can be used

by the child as proof of recognition
That authentic writing executed by the
father with his signature is sufficient
act of recognition.
It is the best evidence of recognition
The child does not have to go to court
to ask for recognition

Sy vs Judge Amor Reyes

6.

If the parents of decendent are totally

omitted,
that does not
necessarily mean there is preterition

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It happens only when the decedent has
no descendants
and he omitted
his parents

Not allowed because it is contrary to

law and contrary to morals
If imposed by the testator
to the wife or husband, that is valid

If there are descendant, then there is

no preterition of the ascendants

If imposed by ascendants or
descendants to the wife or husband,
that is valid

The descendant will exclude the

ascendants from the inheritance

7.

The purpose is to preserve the property

so that the property will stay within the
family itself

If you omit your brother and sisters

totally, there is no preterition as they
are your relatives in the collateral line

Prohibition against subsequent

marriage by the ascendant of
descendant to the surviving spouse
The purpose is to preserve the property
within the family

8.

9.

A petition for opposition for probate of

the will may not be filed by a person
who has no standing
A manugang is not an heir in the direct
line.
No preterition if he or she is
omitted in the will.
He is not an heir in any capacity of the
decedent

10. There are only two heirs in the direct

line. The ascendant and the
descendant
11. If there is total omission of an adopted
(legally), there is preterition
Because the child is entitled to inherit
like a legitimate child
12. If there is a previous donation,
although he is omitted from the will,
there is no preterition
The donation can be treated as an
advance inheritance
Hence there is no total omission

13. If a person has been given a share but

t it is not sufficient for his legitimate
share, the shares of the brothers who
were given a bulk of the share would
be reduced
to fill up your proper
shares
But you cannot oppose the will on the
ground of preterition

14. There is preterition of the ascendants

when they are the only closest relative
and they are omitted

Conditions in the will

1.

Prohibition against contracting of

marriage as a condition in the will

2.

Condition against public policy, law,

morals, public order
It is considered as never imposed
Impossible conditions are considered
as not written or deemed not imposed