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Wills and Succession  Property is within the commerce of man

Pre-Bar Review Notes if it can be lawfully made subject to jus


By: Atty. Leilanie C. Yangyang-Espejo disponendi or the right to dispose. It
must not be res nullius or res communes.
It must not be an object that is
WHAT IS THE MEANING OF SUCCESSION? prohibited by law.

Article 774. Succession is a mode of CAN THE HUMAN BODY/ORGAN BE DISPOSED


acquisition by virtue of which the property, OF IN THE WILL?
rights and obligations to the extent of the
value of the inheritance, of a person are Human Corpse is not a property, and it cannot
transmitted through his death to another or be disposed by virtue of will. But human organs
others either by his will or by operation of law. can be donated or be disposed of in a will as
(n) governed by R.A. 7170 Organ Donation Act of
1991.
IS SUCCESSION AN ORIGINAL MODE OR A
DERIVATIVE MODE OF ACQUISITION?  Under R.A. 7170, however, the recipients
and the purposes for the legacy are
It is a derivative mode of acquisition based on limited. Sec. 6 provides;
Article 712 of the New Civil Code.
Section 6. Persons Who May Become Legatees
Article 712. Ownership is acquired by or Donees – The following persons may
occupation and by intellectual creation. become legatees or donees of human bodies
or parts thereof for any of the purposes stated
Ownership and other real rights over property hereunder.
are acquired and transmitted by law, by
donation, by testate and intestate succession, (a) Any hospital, physician or surgeon - For
and in consequence of certain contracts, by medical or dental education, research,
tradition. advancement of medical or dental
science, therapy or transplantation.
They may also be acquired by means of (b) Any accredited medical or dental
prescription. (609a) school, college or university – For
education, research, advancement of
WHAT ARE THE SUBJECTS OF SUCCESSION? medical or dental science or therapy;
(Transmissible property, rights and obligations) (c) Any organ bank storage facility – For
medical or dental education, research,
A. PROPERTY - may refer to real or therapy or transplantation; and
personal, tangible or intangible property (d) Any specified individual – For therapy or
(See Articles 414-416, Civil Code for transplantation needed by him
definitions.) However, it is subject to the
universal requirement that the object of  Under R.A. 7170, prior probate of the will
any act or contract must be LICIT. is not required for the legacy of the
Property is considered licit if it is: organ to be given effect. If the will is not
1. Not outside the commerce of probated or if declared invalid, the
men; legacy, to the extent that it was
2. Not contrary to law, morals, executed in good faith, is nevertheless
good customs, public order or valid and effective.
public policy
3. Transmissible; WHAT IS THE CONCEPT OF “AFTER ACQUIRED
4. Not impossible. PROPERTIES” IN SUCCESSION?

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- Under Article 718 after the death of the DBP. Grepalife agreed to insure the lives of
decedent, the heir acquires the eligible housing loan mortgagors of DBP. Dr.
inherited property including all Wilfredo Leuterio filed a case against Grepalife
accessories and accessions accruing for recovery of insurance proceeds.
thereto from the moment of death.
These accessions or income for the HELD: A policy of insurance upon life or health
properties accruing after death actually may pass by transfer, will or succession to any
belong to the heir not as an heir but as person, whether he has an insurable interest or
an owner as incidents of ownership. not and such person may recover it whatever
- On the otherhand, with respect to the insured might have recovered, the widow
properties acquired by the testator after of the decedent Dr. Leuterio may file the suit
the execution of the will up to the against the insurer, Grepalife.
moment before death, Article 793
provides as a general rule that only  However, by way of exception, there
those properties owned and possessed are also patrimonial rights that are
at the time the will is made are extinguished by death such as:
included. Properties acquired after the 1. When provided in the contract that the
making of the will shall not be included right is extinguished by death;
in the legacy or devise. Exceptions: 2. Usufruct as a general rule because it is
When the testator expressly provides in extinguished by death Under Article 603
his will that properties acquired after the of NCC;
will is made shall be included in the 3. Agency because the contract is
inheritance. Other exception are Art. extinguished by death under Article
836 and 930 of the New Civil Code. 1919 NCC;
4. Right to become a partner in
Article 836. The execution of a codicil referring partnership (Article 1830)
to a previous will has the effect of republishing 5. Right to annuity (Article 2027)
the will as modified by the codicil. (n)
No annuity shall be claimed without first
Article 930. The legacy or devise of a thing proving the existence of the person upon
belonging to another person is void, if the whose life the annuity is constituted. (1808)
testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, 6. Right to revoke donation by reason of
though not belonging to the testator when he ingratitude;
made the will, afterwards becomes his, by 7. Commodatum is purely personal in
whatever title, the disposition shall take effect. character. Consequently, the death of
(862a) either the bailor or the bailee
extinguishes the contract (Article 1939);
B. RIGHTS - refer to transmissible rights. and
Purely personal rights generally cannot 8. A deposit is extinguished, in case of a
be transmitted because they are gratuitous deposit, upon hte death of
extinguished by death. As a general either the depositor or the depositary
rule, patrimonial rights are transmissible. (Article 1995).

Great Pacific Life Assurance Corp v. CA [G.R. C. OBLIGATIONS – As a general rule,


No. 113899, October 13, 1999] obligations are transmissible.

FACTS: A contract of group life insurance was Liu vs. Loy [G.R. No. 145982, September 13,
executed between Grepalife and 2004]

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A prior contract to sell made by the decedent distributees, since the amount of the paid
during his lifetime prevails over a subsequent claim in fact diminishes or reduces the shares
contract of sale made by the administrator that the heirs would have been entitled to
without probate court approval. It is immaterial receive. Under our law, therefore, the general
if the prior contract is a mere contract to sell rule is that a party‟s contractual rights and
and does not immediately convey ownership. obligations are transmissible to the successors.
Frank Liu‟s contract to sell became valid and The rule is a consequence of the progressive
effective upon its execution and bound the „depersonalization‟ of patrimonial rights and
estate to convey the property upon full duties that, has characterized the history of
payment of the consideration. these institutions. From the Roman concept of
a relation from person to person, the obligation
Alvarez vs. IAC [G.R. No. 68053, May 7,1990] has evolved into a relation from patrimony to
patrimony with the persons occupying only a
Teodora Yanes and the children of her brother representative position, barring those rare
Rufino, namely, Estellita, Iluminado and Jesus, cases where the obligation is strictly personal.
filed a complaint against Fortunato Santiago, Petitioners being the heirs of the late Rosendo
Arsenia Vda. De Fuentebella, Alvarez and the Alvarez, they cannot escape the legal
Register of Deeds of Negros Occidental for the consequences of their father‟s transaction,
return of the ownership and possession of Lots which gave rise to the present claim for
773 and 823. They also prayed that an damages. That petitioners did not inherit the
accounting of the produce of the land and property involved herein is of no moment
that the share or money equivalent due the because by legal fiction, the monetary
plaintiffs be delivered to them and that equivalent thereof devolved into the mass of
defendants be ordered to pay plaintiffs P their father‟s hereditary estate and we have
500.00 as damages in the form of attorney‟s ruled that the hereditary assets are always
fees. During the pendency in court of said liable in their totality for the payment of the
case or on November 13, 1961. Alvarez sold debts of the estate. It must, however, be made
Lots 773-A, 773-B to Dr. Rodolfo Siason. Alvarez clear that petitioners are liable only to the
died but he was adjudged to pay the extent of the value of their inheritance.
monetary value of the properties to Teodora
Yanes and the children of her brother Rufino,  Exceptions to the general rule that
namely, Estelita, Iluminado and Jesus. The heirs obligations are transmissible are:
of Alvarez complained that the liability arising 1. Purely personal obligations (e.g. marital
for the sale of Lots No. 773-A and 773-B made obligations);
by Rosendo Alvarez to Dr. Rodolfo Siason 2. Obligations made intransmissible by
should be the sole liability of the late Rosendo contract between the parties;
Alvarez or of his estate, after his death. 3. The obligation to pay taxes. Note that
tax liability is properly a claim against
HELD: The doctrine obtaining in this jurisdiction the estate;
is non the general transmissibility of the rights 4. Criminal liability;
and obligations of the deceased to his 5. When a piece of work has been
legitimate children and heirs. The binding entrusted to a person by reason of his
effect of contracts upon the heirs of the personal qualifications, the contract is
deceased party is not altered by the provision rescinded upon his death. In this case,
of our Rules of Court that money debts of a the proprietor shall pay the heirs of the
deceased must be liquidated and paid from contractor in proportion to the price
his estate before the residue is distributed agreed upon, the value of the part of
among said heirs (Rule 89). The reason is that the work done, and of the materials
whatever payment is thus made from the state prepared, provided the latter yield him
is ultimate a payment by the heirs or some benefit (Article 1726)

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6. Support. action of Sofia and Salvador Aldon barred by
the statute of limitations?
WHAT TRIGGERS THE LAW ON SUCCESSION?
As to the second question, the children‟s
 Death opens succession. There can be cause of action accrued from the death of
no transmission of properties, rights and their father in 1959 and they had thirty years to
obligations by way of succession instate it (Art. 1141 Civil Code.) they filed
without death. action in 1976 which is well within the period.
 Prior to death, the heirs only have an
inchoate right or an expectancy.  Upon the death of the decedent, the
rights of the heirs become vested.
Felipe vs. Heirs of Aldon [February 16, 1983]
Emnace v. CA [370 SCRA 431), November 23,
Gimena, the wife, sold lands belonging to the 2001]
conjugal partnership without the consent of
the husband. The voidable contract of Emnace, Tabanao and Divinigracia were
Gimena was subject to annulment by her partners in a business concern known as Ma.
husband only during the marriage because he Nelma Fishing Industry. Sometime in January of
was the victim who had an interest in the 1986, they decided to dissolve their partnership
contract. Gimena, who was the party and executed an agreement of partition and
responsible for the defect, could not ask for its distribution of the partnership properties
annulment. Their children could not likewise among them, consequent to Divinagracia‟s
seek the annulment of the contract while the withdrawal from the partnership. Throughout
marriage subsisted because they merely had the existence of the partnership, and even
an inchoate right to the lands sold. after Tabanao‟s demise, Emnace petitioner
failed to submit to Tabanao‟s heirs any
The termination of the marriage and the statement of assets and liabilities of the
dissolution of the conjugal partnership by the partnership, and to render an accounting of
death of Maximo Aldon did not improve the the partnership‟s finances, and also reneged
situation of Gimena. What she could not do on his promise to turn over to Tabanao‟s heirs
during the marriage, she could not do the deceased‟ share in the total assets of the
thereafter. partnership. Thus, the heirs of Tabanao sued
Emnace. Emnace contended that the
The case of Sofia and Salvador Aldon is surviving spouse of Vicente Tabanao has no
different. After the death of Maximo they legal capacity to sue since she was never
acquired the right to question the defective appointed as administratrix or executrix of his
contract insolfar as it deprived them of hteir estate.
hereditary rights in their father‟s share in the
lands. The father‟s share is one half of the lands Held: The surviving spouse does not need to be
and their share is two-thirds thereof, one-third appointed as executrix or administratrix of the
pertaining to the widow. estate before she can file the action. She and
her children are complainants in their own right
The petitioners have been in possession of the as successors of Vicente Tabanao. From the
lands since 1951. It was only in 1976 when the very moment of Vicente Tabanao‟s death, his
respondents filed action to recover the lands. rights insofar as the partnership was concerned
In the meantime, Maximo Aldon died. were transmitted to his heirs, for rights to the
succession are transmitted from the moment of
Two questions come to mind namely: (1) Have death of the decedent. Whatever claims and
the petitioners acquired the lands by rights Vicente Tabanao had against the
acquisitive prescription? (2) Is the right of partnership and petitioner were transmitted to

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respondents by operation of law, more February 18, 1980, Capt. Lucero sent 3
particularly by succession, which is a mode of messages to the Company‟s Manila Office,
acquisition by virtue of which the property, first, that they encountered boisterous weather
rights and obligations to the extent of the
with strong northeasternly winds causing the
value of the inheritance of a person are
transmitted. vessel to roll and pitch violently; second, that
the vessel was laboring violently and that they
WHAT IS A PERSON CONSIDERED DEAD FOR THE had to jettison cargoes; third, that they
PURPOSE OF SUCCESSION? needed immediate assistance because
seawater was entering inside the hatch and
Death may either be:
they were preparing to abandon anytime.
1. Actual Death Subsequently, the insurer of the M/V Eastern
2. Presumed Death Minicon confirmed the loss of the vessel. The
a. Ordinary presumption – after Company paid the corresponding death
10 years or 5 years if the benefits to the heirs of the crew members,
person disappeared after the
except Mrs. Lucero, who refused to accept the
age of 75 years old (Article
same. Mrs. Lucero filed a complaint for
390, NCC)
b. Qualified or extraordinary payment of her accrued monthly allotment of
presumption – after 4 years if P3,183.00, which the Company had stopped
the disappearance was since March 1980 and for continued payment
under danger of death of said allotments until the M/V Minicon shall
(Article 391, NCC) have returned to the port of Manila. She
contended that the contract of employment
 When is the moment of death counted?
(a) Ordinary presumption – after 5 or 10 entered into by her husband with the
years Company was on a voyage-to-voyage basis,
(b) Extraordinary presumption from the date and that the same was to terminate only upon
of disappearance. vessel‟s arrival in Manila.

 However, the rule on presumptions HELD: It is undisputed that the Company


should yield to the rule on received 3 radio messages from Capt. Lucero.
preponderance of evidence. If there is
There is thus enough evidence to show the
evidence pointing to the fact that the
circumstances attending the loss and
person is alive, then he cannot be
presumed dead despite the fact that disappearance of the M/V Eastern Minicon
he has not been heard of. Or if there is and its crew. The foregoing facts are sufficient
evidence that the person is really dead, to lead to a moral certainty that the vessel had
then there is no need to wait for the sunk and that the persons aboard had
periods under Articles 390 and 391 to perished with it. Upon the premise, the rule on
lapse before a person may be declared
presumption of death under Article 391 (1) of
dead.
the Civil Code must yield to the rule of
Eastern v. Lucero [124 SCRA 326] preponderance. Where there are facts, known
or knowable, from which a nrational
Lucero, Jr. was appointed by Eastern Shipping conclusion can be made. The presumption
Lines, Inc., as master/captain to its vessel. While does not step in, and the rule of
the vessel was enroute from Hongkong to preponderance of evidence controls. Thus, the
Manila where it was expected to arrive on

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complaint of Mrs. Lucero was dismissed and DONOR does by these presents transfer and
instead, she should receive the death benefits. convey, by way of DONATION, unto the
DONEE the property above, described, to
become effective upon the death of the
ODNOR, but in the event that the DONEE
IS THERE A KIND OF SUCCESSION THAT TAKES
should die before the DONOR, the present
EFFECT DURING THE LIFETIME OF THE DECEDENT?
donation shall be deemed rescinded and of
Freak succession – this is a case of succession no further force or effect.”
which takes place without the triggering effect
HELD: The above disposition is in the nature of
of death. This contemplates the delivery of
donation mortis causa. The distinction between
presumptive legitime prior to the death of the
a transfer inter vivos and mortis causa is
person who is supposed to pay such, on the
important as the validity of revocation of the
occasion of annulment of marriage and
donation depends upon its nature. If the
declaration of nullity of marriage.
donation is inter vivos, it must be executed and
DISTINGUISH SUCCESSION INTER VIVOS FROM accepted with the formalities prescribed by
SUCCESSION MORTIS CAUSA. Article 748 and 749 of the Civil Code, except
when it is onerous in which case the rules on
1) Succession Inter Vivos – transfer of contracts that will applu. If it is mortis causa,
ownership takes effect during the the donation must be in the form of a will with
lifetime of the giver; governed by the all the formalities for the validity of the wills,
law on donations otherwise it is void and cannot transfer
2) Succession Mortis Causa – transfer of ownership. The distinguishing characteristics of
ownership takes effect upon or adter a donation mortis causa are the following:
the death of the giver; governed by the
law on succession 1) It conveys no title or ownership to the
transferee before the death of the
WHAT RULE SHALL APPLY IF A DONATION IS TO transferor; or, what amounts to the
TAKE EFFECT UPON THE DEATH OF THE DONOR? same thing, that the transferor should
retain ownership (full or naked) and
ARTICLR 728. Donations which are to take control of the property while alive.
effect upon the death of the donor partake of 2) That before his death, the transfer
nature of testamentary provisions and shall be should be revocable by the transferor at
governed by the rules established in the Title will, ad nutum; but revocability may be
on Succession. provided for indirectly by means of a
reserved power in the donor, to dispose
Illustrative Cases: of the properties conveyed.
3) That the transfer should be void if the
Ganuela vs Cawed (401 SCRA 447, April
transferor should survive transferee.
24, 2003)
The phrase “to become effective upon the
“ That for and in consideration of the love and
death of the DONOR” admits of no other
affection which the DONOR has for the
interpretation but that Celestina intended to
DONEE, and of the faithful services the latter
transfer the ownership of the properties to
has rendered in the past to the former, the said

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Ursulina on her death, not during her lifetime. it to him upon my death.” By these words the
More importantly, the provision in the deed donor expressly renounced the right to freely
stating that if the donee should die before the dispose of the property in favor of another ( a
donor, the donation shall be deemed right essential to full ownership) and
rescinded and of no further force and effect manifested the irrevocability of the
shows that the donation is a postmortem conveyance of the naked title to the property
disposition. Furthermore, the deed contains an in favor of the donee. Such irrevocability is
attestation clause expressly confirming the disposition post mortem. It is apparent from the
donation as mortis causa. entire context of the deed of donation that the
donor intended that she should retain the
To classify the donation as inter vivos simply entire beneficial ownership her lifetime, but
because it is founded on considerations of love that the naked title should irrevocably pass to
and affection is erroneous. That the donation the donee. It is only thus that all expressions
was prompted by the affection of donor for heretofore discussed can be given full effect;
the donee and the services rendered by the and when the donor stated that she would
latter is of no particular significance in continue to retain the “possession, cultivation,
determining whether the deed constitutes a harvesting, and all other rights attributes of
transfer inter vivos or not because a legacy ownership,” she meant only the dominion utile,
may have an identical motivation. In other not the full ownership. The words “rights and
words, love and affection may also underline attributes of ownership” should be construed
transfers mortis causa. ejusdem generis with the preceding rights of
“possession, cultivation and harvesting”
CUEVAS vs. CUEVAS (G. R NO. L-8327,
expressly enumerated in the deed. Had the
December 14, 1955)
donor meant to retain full or absolute
The crux of the controversy resolves around the ownership she had no need to specify
following provisions of the deed of donation: possession, cultivation and harvesting since all
these rights are embodied in full or absolute
“Dapat malaman ni Crispulo Cuevas na ownership; nor would she then have excluded
samantalang akop ay nabubuhay, and lupa the right of free disposition from the “rights and
na ipinagkaloob ko sa kaniya ay ako pa rin attributes of ownership” that she reserved for
and patuloy na mamomosecion, herself.
makapagpatrabaho, makikinabang at ang
iba apang karapatan sa pagmamay-ari ay sa WHAT ARE HEIRS, LEGATEES AND DEVISEES?
akin pa rin hanggang hindi binabawian ng
 Heirs may be compulsory or forced (like
buhay ng Maykapal at ito naman ay hindi ko
children, wife, who cannot be deprived
nga iya-alis pagkat kung ako ay mamatay na
of their inheritance unless for causes
ay ilalaan ko sa kaniya.
provided by law. They are entitled to
HELD: The decisive proof that the present legitime.
donation is operative inter vivos lies in the final  Even if there is no will, they will still inherit
phrase to the effect that the donor will not by operation of law, in which case, they
dispose or take away (“hindi ko nga iya-alis” in are called legal or intestate heirs.
the original) the land “ because I am reserving  Voluntary testamentary or testate (like
friends, strangers, who are not related to

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the decedent. Can inherit). Or those property, rights
who receive property by way of devise and
or legacy (even if relative). obligations;
 Legatees succeed to particular or
6. Heir succeeds
specific personal property; Devisees to the 6. Suceedonly to
succeed to particular or specific real remainder of the
property. the estate after determinate
all the debts, thing or
DISTINCTIONS devises, and amount given.
legacies have
HEIRS LEGATEES AND been paid.
DEVISEES
1. Succeed by
general right 1. Succed by
universal title special or WHAT IS THE IMPORTANCE OF THE DISTINCTIONS
particular title BETWEEN HEIRS ON ONE HAND AND LEGATEES
(to all or a AND DEVISEES ON THE OTHERHAND?
fraction or
aliquot part) 1. In the preterition under Article 854
2. The term instituted voluntary heir gets nothing;
2. The term legatees and legatees and devisees still get the
testamentary devisees exist
property given as long as the legitime is
Heir exists both only in
testamentary not impaired.
in testamentary
succession and succession; 2. Under Article 793 on after-acquired
intestate properties, legatees and devisees as a
succession; general rule get only the property
devised or bequeathed existing at the
3. The heir, if 3. Legatees and
time of the execution of the will. Heirs
compulsory, dedvisees
succeed only are not covered by Article 793 because
succeeds to
the inheritance by reason of their inheritance is residual.
regardless of testator‟s will.
the will of the WHAT ARE THE ESSENTIAL ELEMENTS AND
decedent; CHARACTERISTICS OF A WILL?

4. Quantity 4. Quantity can ACRONYM (PASS U C F FRIDM) “Pass you see


cannot be easily be freedom”
determined determined
until after 1. Personal-will making is the act of the
liquidation of testator, and testamentary power
properties of
5. Do not cannot be delegated. A will is supposed
the estate;
represent the to be confidential, hence, wills are not
5. Heir represents juridical considered as public documents even if
the juridical personality coz notarized.
personality of acquires only 2. Animus Testandi- there must be intent to
the deceased properties;
make a will and the testator should
acquiring his

8
know that the purpose of the will is to account shall belong to the one who
dispose of his propertis mortis causa. survives.
Persons with unsoud mind cannot
execute wills because they do not know Held: The will must purport to deliver ones
the character of the testamentary act. separate properties in favor of another.
3. Statutory-will-making is merely a Hence, if husband and wife have a joint
privilege, not an inherent right. The law savings account and they merely agree in
can without testamentary power. an instrument that when either of them
Hence, will must be, subordinated to dies, the balance of the savings account
law land policy (Herreros vs Gil 88 Phil shall belong to the one who survives, this is
260) not a will because the account is their joint
4. Solemn- the formalities required by law holding.
must be complied with
5. Unilateral-the testator cannot condition
the making of the will upon the consent WHAT ARE THE RULES FOR CONSTRUCTION
or act of another. Hence bilateral IN SUCCESSION?
disposicion captatoria, are prohibited.
6. Capacity-the testator must have the  TESTACY IS FAVORED OVER
testamentary capacity of (sound mind INTESTACY
and at least 18 years old)
7. Freedom from Vitiated Consent – the RODRIGUEZ v BORJA (17 SCRA 41)
presence of vitiated consent is a cause
for the disallowance of a will On March 4, 1963, a purported last will and
testament of Fr. Rodriguez was delivered to the
8. Revocable – testator can revoke his will
Clerk of Court of Bulacan by Apolonia
anytime during his lifetime, even if
already probated. A will is essentially Pangilinan and Adelaida Jacalan; that on
ambulatory. March 8, 1963, Maria Rodriguez and Angela
Rodriguez filed a petition for leave of court to
9. Individual – a will must be the act of only
allow them to examine the alleged will; that on
one person. Hence, joint wills are not
allowed. March 11, 1963 before the Court could act on
the petition, the same was withdrawn that on
10. Disposition of Property – a will must
March 12, 1963, Maria Rodriguez and Angela
contain a disposition of property. It may
be direct disposition or indirect Rodriguez filed before the Court of First
disposition, like a will containing only a Instance of Rizal a petition for the settlement of
disinheritance of an heir. (Merza vs the intestate estate of Fr. Rodriguez alleging,
among other things, that Fr. Rodriguez died
Porras[93 Phl 142]); Reiterated in
SEANGIO versus REYES, Gr No. 149753 without leaving a will; and that on March 12,
1963 Apolonia Pangilinan and Adelaida
MITUG vs CA (183 SCRA 755) Jacalan filed a petition for the probation of the
will delivered by them on March 4, 1963.
The Survivorship Agreement executed
between husband and wife over their joint The movants contend that since the intestate
savings account stipulates that when either proceedings in the Court of First Instance of
of them dies, the balance of the savings Rizal was filed at 8:00AM on March 12, 1963

9
while the petition for probate was filed in the not thus proceed while the probate of the will
Court of First Instance of Bulacan at 11:00AM of Father Rodriguez is pending.
on the same date, the latter Court has no
jurisdiction to entertain the petition for probate. THE WILL MUST BE LIBERALLY CONSTRUED IN
FAVOR OF ITS VALIDITY. HENCE, BETWEEN 2
Held: The jurisdiction of the Court of First DISPOSITIONS, ONE WILL MAKE THE WILL
Instance of Bulacan became vested upon the INVALID WHILE THE OTHER WILL MAKE THE WILL
delivery thereto of the will of the late Fr. VALID. THAT INTERPRETATION BY WHICH THE
Rodriguez on March 4, 1963, even if no petition WILL IS VALID SHOULD BE PREFERRED.
for its allowance was filed until later because
upon the will being deposited the court could, BALANAY, JR vs MARTINEZ (64 SCRA 452, Gr No.
motu proprio, have taken steps to fix the time L-39247, June 27, 1975)
and place by proving the will and issued the
Felix J. Balanay, Jr. filed in the lower court a
corresponding notes conformably to what is
petition dated February 27, 1973 for the
prescribed by Section 3, Rule 76 of the Revised
probate of his mother‟s notarial will dated
Rules of Court.
February 27, 1973 for the probate of his
The use of the disjunctive in the words “when a mother‟s notarial will dated September 5, 1970
will is delivered to or a petition for the which is written in English. In that will
allowance of a will is filed” plainly indicates Leodegaria Julian declared (a) that she was
that the court may act upon the mere deposit the owner of the “southern half of nine
therein of a decedent‟s testament, even if no conjugal lots (part II); (b) that she was the
petition‟s for its allowance is as yet filed. Where absolute owner of two parcels of land which
the petition for probate is made after the she inherited from her father (par. III); (c) that it
deposit of the will, the petition is deemed to was her desire that her properties should not
relate back to the time when the will was be divided among her heirs during her
delivered. Since the testament of Fr. Rodriguez husband‟s lifetime and that their legitimes
was submitted and delivered to the Court of should be satisfied out of the fruits of her
Bulacan on March 4, while petitioners initiated properties (par V). Then in Paragraph V of the
intestate proceedings in the Court of First will she stated that after her husband‟s death
Instance of Rizal only on March 12, eight days (he was eighty-two years old in 1973) her
later, the precedence and exclusive paraphernal lands and conjugal lands (which
jurisdiction of the Bulacan court is contestable. she described as “my properties”) should be
divided and distributed in the manner set forth
The other person is that, in our system of civil in that part of the will. She devised and
law, intestate succession is only subsidiary or partitioned the conjugal lands as if they were
subordinate to the testate, since intestacy only all owned by her. She disposed of in the will her
takes place in the absence of a valid husband‟s one half share of the conjugal
operative will. Therefore, as ruled in Castro, et. assets. Felix Balanay, Sr opposed the probate
al versus Martinez 10 Phl. 307, “only after final of the will on the grounds of lack of
decision as to the nullity of testate succession testamentary capacity, undue influence,
could an intestate succession be instituted in pretention of the husband and alleged
the form of pre-establishment action”. The improper partition of the conjugal estate. The
institution of intestacy proceedings in Rizal may oppositors claimed that Felix Balanay, Jr.

10
should collate certain properties which he had the legitimes be paid in cash. On the other
received from the testratix. hand, her estate may remain undivided only
for a period of twenty years. So, the provision
Held: The probate court erred in declaring that that the estate should not be divided during
the will was void and in converting the testate her husband‟s lifetime would at most be
proceeding into an intestate proceeding effective only for twenty years from the date of
notwithstanding the fact that in its order of her death unless there are compelling reasons
June 18, 1973, it gave effect to the surviving for terminating the co-ownership.
husband‟s conformity to the will and to his
renunciation of his hereditary rights which In the instant case, there is no doubt that the
presumably included his one-half share of the testatrix and her husband intended to partition
conjugal estate. The rule is that “the invalidity the conjugal estate in the manner set forth in
of one several dispositions contained in a will paragraph V of her will. It is true that she could
does not result in the invalidity of the other dispose of by will only her half of the conjugal
dispositions, unless it is to be presumed that the estate (Article 170 Civil Code) but since the
testator would not have made such other husband, after the dissolution of the conjugal
dispositions if the first invalid disposition had not partnership had assented to her testamentary
been made” (Art. 792, Civil Code). “Where partition of the conjugal estate, such partition
some of the provisions of a will are valid and has become valid, assuming that the will may
others invalid, the valid parts will be upheld if be probated. In the instant case, the preterited
they can be separated from the invalid heir was the surviving spouse. His prerition did
without defeating the intention of the testator not produce intestacy. Moreover, he signified
or interfering with the general testamentary his conformity to his wife‟s will and renounced
scheme, or doing injustice to the his hereditary rights. Save in an extreme case
beneficiaries”. (95 CJS 873) The statement of where the will on its face is intrinsically void, it is
the testatrix that she owned the “southern half the probate‟s court duty to pass first upon the
of the conjugal lands is contrary to law formal validity of the will. Generally, the
because, although she was a co-owner probate of the will is mandatory. To give effect
thereof, her share was inchoate and to the intention and wishes of the testatrix is the
proindiviso. But that illegal declaration does first and principal law in the matter of
not nullify the entire will. It may be disregarded. testaments. Testacy is preferable to intestacy.
An interpretation that will render a
The provision of the will that the properties of testamentary disposition operative takes
the testatrix should not be divided among her precedence over a construction that will nullify
heirs during her husband‟s lifetime but should a provision of the will.
be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the Testacy is favored. Doubts are resolved in favor
Civil Code. The testatrix in her will made a of testacy especially where the will evinces an
partition of the entire conjugal estate among intention on the part of the testator to dispose
her six children (her husband had renounced of practically his whole estate. So compelling is
his hereditary rights and his one-half conjugal the principle that instestacy should be avoided
share). She did not assign the whole estate to and that the wishes of the testator should
one or more children as envisaged in Article prevail that sometimes the language of the will
1080. Hence, she had no right to require that

11
can be varied for the purpose of giving it YAMBAD vs GONZALES (1 SCRA 1157)
effect.
Appellant filed an action against the appellees
THE TESTATOR WISHES CONSTITUTE THE FIRST that the latter employ the former as tenant
AND PRINCIPAL LAW IN THE MATTER OF during his lifetime on parcels of land
TESTAMENTS bequeathed to the appellees. The lower court
ruled that the provisions of the will relied upon
VDA. DE VILLANUEVA vs JUICO (4 SCRA 550) by the appellant merely amount to a
suggestion to appellees, who, through morally
In the will of the testator he bequeathed in
bound, are not legally compelled to follow
favor of his wife ½ certain properties for her
said suggestion because the word
“use and possession while alive and she does
pahintulutan employed with the reference to
not contract a second marriage otherwise, the
the working of appellant on the lands only
properties shall pass to the testator‟s
means to permit or to allow but not to direct
grandniece.” It was contended that the title to
appellees to appoint appellant as tenant.
the properties became absolutely vested in
the estate of the window upon her death, on Held: lower court is wrong. The real import of
account of the fact that she never remarried. the wish of the testatrix for her will contains a
clear directive to employ appellant as may be
Held: The grandniece is entitled to the
seen from the words preceding the word
properties for the plain intent of the testator
pahintulutan which say: Dapat din naman
was to invest his widow only with a lifetime
malaman ng dalawa kong tagapagmana ...
usufruct subject to the condition that if she
na sila ay may dapat tungkulin o gampanan
remarried, her rights would thereupon cease
gaya ng sumusunod. “The words tungkulin o
even during her lifetime. It would have been
gampanan mean to do or to carry out as a
different, had he given her full ownership
mandate or directive and having reference to
because not having remarried, the grand
the word pahintulutan, can convey no other
niece could not inherit from her. This is in
meaning than to impose a duty upon the
contrast with the remainder of the estate in
appellees.
which she was instituted universal heir together
with the testator‟s brother. If the testator had HOW ARE AMBIGUITIES IN THE WILL TREATED?
intended to impose as sole condition the non-
remarriage of his widow, the words „use and  Two (2) kinds of ambiguities
possession while alive‟ would have been 1. Latent or Intrinsic ambiguity – an
unnecessary, since she could only remarry ambiguity or defect tht does not
during her own lifetime. appear in the face of the will.
You only discover them when you
THE WORDS OF A WILL ARE TO RECEIVE AN go beyond the will, when you
INTERPRETATION WHICH WILL GIVE TO EVERY look for the persons or properties.
EXPRESSION SOME EFFECT, RATHER THAN ONE This consists of:
WHICH WILL RENDER ANY OF THE EXPRESSIONS a. Imperfect description of
INOPERATIVE; AND OF TWO MODES OF the heir, legatees, or
INTERPRETING A WILL, THAT IS TO BE PREFERRED devisee
WHICH WILL PREVENT INTESTACY.

12
b. Imperfect description of complied with in order to
the property given make the will valid. Forms
c. When 2 or more persons such as the type of instrument
meet the description (depending whether notarial
d. When 2 or more things or holographic), capacity of
meet the description the testator, qualifications of
2. Patent or Extrinsic Ambiguity – an witnesses. Extrinsic validity
ambiguity that is apparent on the may be seen from 2
face of the will itself. You discover viewpoints: time and place
this my merely looking at the will. (country)
Example: 1 hereby bequeath all B. Intrinsic validity – refers to the
my money to some of my legality of the provisions in an
students. Hence, from the will instrument; contract or will.
itself, it is not clear how many E.g Whether or not there was
students are intended. preterition, whether or not
 How to cure the ambiguities: there is invalid disinheritance
whether or not there is
The same for both: impairment of legitime. May
be seen also from 2
a) By intrinsic evidence. That is by
viewpoints.
looking at the context of the will,
examining how the words are  Extrinsic validity from the view point of
used. Time Extrinsic validity of will depends
b) By extrinsic evidence. That is upon the observance of the law in force
going outside the will. at the time the will is made. The extrinsic
validity of will is measured against the
CAN ORAL OR PAROL EVIDENCE BE RESORTED law in force at the time of will making,
TO IN ORDER TO CURE AN AMBIGUITY? not at time of death, not at time of
probate.
Yes, except oral evidence or parol
 Reason: The testator cannot possibly
evidence pertaining to the supposed oral know, and is not expected to know the
declarations of the testator. This would not be laws that will govern in the future.
allowed because this may open the door to Hence, it is sufficient that he follows the
fraud. Anybody may claim that he/she heard laws in force at the time that he makes
the testator said something. But other oral his will.
evidence may be allowed as an exception to
Enriquez v. Abadia [95 Phil. 627]
the Parol Evidence Rule under Rule 130,
Section 9 of the Rules of Court. On September 6, 1923, Father Sancho Abadia,
parish priest of Talisay, Cebu, executed a
WHAT LAWS GOVERN THE VALIDITY OF WILLS? document purporting to be his Last Will and
Testament. He died on January 14, 1943. The
 Two kinds of validity: will was a holographic will; that it was in the
A. Formal or extrinsic validity – handwriting of the testator and that although
refers to the forms and at the time it was executed and at the time of
the testator‟s death, holographic wills were not
solemnities that must be

13
permitted by law still, because at the time of Therefore, Abada‟s will does not require
the hearing and when the case was to be acknowledgement before a notary public.
decided the new Civil Code was already in
force, which Code permitted the execution of  Extrinsic Validity from the Viewpoint of
holographic wills, under a liberal view, and to Place (Country)
carry out the intention of the testator which
according to the trial court is the controlling A. Testator is a Filipino who executes will in the
factor and may override any defect in form, Philippines. Observe Philippine Laws (NCC) –
said trial court by order dated January 24, Art. 17
1952, admitted to probate the Last Will and
Testament of Father Sancho Abadia. B. Testator is a Filipino who executes will
abroad before the diplomatic or consular
HELD: The formal validity of a will depends officials of the Republic of the Philippines in a
upon the observance of the law in force at the foreign country: Observe Philippine Laws
time it is made, not by the law in force at the (NCC) – Art. 17
time of the testator‟s death, or at the time the
supposed will is presented in court for probate, C. Testator is a Filipino who executes will
or when the petition is decided by the court. abroad. Observe:
Consequently, the validity of a will is not
1. Law of the place where he may be –
affected by the subsequent amendment of
Article 815
the law with respect to formalities after the
execution of the will, whether before or after
2. Law of the place where he executes
the death of the testator. Where a will was void
the will – Article 17 (essentially same with 815,
for failure to observe certain formalities under
because law of place where he executes the
the law then in force, a subsequent law
will is the law of the place where he may be)
lessening or dispensing with said formalities
cannot be applied so as to validate the void 3. Law of the Philippines (because Art.
will. Thus, the fact that the New Civil Code 815 merely says “is authorized” meaning, he
allows a holographic will does not validate one principally has to follow Philippine Law but is
made before its effectivity and void under the (permitted or authorized to follow the law of
prevailing law. the place where he may be)
Testate Estate of the Late Alipio Abada v. Baja D. Testator is an alien who executes will
[G.R. No. 147145, January 31, 2005] abroad: (observe:
Abada executed his notarial will on June 4, 1. Law of the place of his residence or
1932 but he died when the New Civil Code domicile – Article 816
took effect. The will was not acknowledged
before a notary public. Is the will valid? 2. Law of his own country or nationality –
Article 816
HELD: YES. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code and 3. Philippine Law (NCC) – Article 816
Act No. 190 or the Code of Civil Procedure
which governed the execution of wills before 4. Law of the Place where will is
the enactment of the New Civil Code. The executed – Article 17
Code of Civil Procedure repealed Article 685
of the Old Civil Code. Under the Code of Civil Example: Tan American Citizen who has his
Procedure, the intervention of a notary is not residence in Japan and who executes a will in
necessary in the execution of any will. Germany.

14
E. Testator is an alien who executes a will in the they never invoked nor even mentioned it in
Philippines. Observe: their arguments. Rather they argue that their
case falls under the circumstances mentioned
1. Law of his country or nationality - in the third paragraph of Article 17 in relation
Article 817 to Article 16 of the Civil Code.

2. Law of the place where will is Where the decedent was a citizen of a foreign
executed (Philippines) – Article 17 country and under the laws of said country
there are no forced heirs, the system of
Example: X a Japanese who executes will in legitimes in Philippine law cannot be applied
the Philippines may observe Japanese law or to the succession to the decedent‟s estate
Philippine law. because the intrinsic validity of the provisions of
the decedent‟s will and the amount of
 Intrinsic Validity from the Viewpoint of successional rights are to be determined by
Time the law of such country. A provision in the
foreigner‟s will that his properties should be
The law at the time of the death of the
distributed in accordance with Philippine law
testator or when the succession opens
and not in accordance with his national law is
because it is at that time when the rights
void being contrary to Article 16.
are transmitted to the heirs, devisees or
legatees. Clear in the transitory provision It is therefore evident that whatever public
of the Civil Code in Article 2263 and policy or good customs may be involved in our
Under Art. 774. System of legitimes, Congress has not intended
to extend the same to the succession of
 Intrinsic Validity from the Viewpoint of
foreign nationals. For it has specifically chose
Place or Country
to leave, inter alia, the amount of successional
rights to the decedent‟s national law. Specific
Law applicable is the national law of
provisions must prevail over general ones.
the decedent under Article 16 of the
New Civil Code.
PCIB v. Escolin [56 SCRA 266]
Bellis v. Bellis (June 8, 1967)
The question of what is the foreign law
governing the matter in issue is one of fact and
In the present case, it is not disputed that the
not of law. Foreign laws may not be taken
decedent was both a national of Texas and a
judicial notice of and has to be proven like any
domicile thereof at the time of his death. So
other fact in dispute between the parties in
that even assuming Texas has a conflict of law
any proceeding except when the said laws
rule providing that the domiciliary system (law
are already within the actual knowledge of the
of the domicile) should govern, the same
courts such as when they are well and
would not result in a reference back (Renvoi)
generally known, or they have been actually
to Philippine law, but would still refer to Texas
ruled upon in other cases before it and none of
Law. Nonetheless, if Texas has a conflicts rule
the parties concerned do not claim otherwise.
adopting the situs theory (lex rei sitae) calling
for the application of the law of the place
Miciano v. Brimo [50 Phil. 867, G.R. No. L-22595,
where the properties are situated, renvoi would
November 1, 1927]
arise, since the properties here involved are
found in the Philippines. In the absence, With respect to foreign law on the formalities of
however of proof as to the conflict of law rule wills, in the absence of proof to the contrary, it
of Texas, it should not be presumed different is presumed that foreign laws on the formalities
from ours. Appellant‟s position is therefore not of wills are the same as those prescribed under
rested on the doctrine of renvoi. As stated,

15
Philippine Laws. This is the Doctrine of In 1981, Richard married Candelaria with
Processual Presumption. whom he has two children. On October 12,
1982, Audrey‟s will was also admitted to
The appellant‟s opposition is based on the fact probate by the then Court of First Instance of
that the partition in question puts into effect Rizal. On July 20, 1984, Richard died, leaving a
the provisions of Joseph G. Brimo‟s will which will, wherein he bequeathed his entire estate
are not in accordance with the laws of his to Candelaria, save for his rights and interests
Turkish nationality, for which reason they are over the A/G interiors, Inc. Shares, which he left
void as being in violation or article 10 of the to Kyle. The will was also admitted to probate
Civil Code which, among other things, by the Orphan‟s Court of Ann Arundel,
provides the following: Maryland U.S.A and James N. Phillips was
likewise appointed as executor, who in turn,
Nevertheless, legal and testamentary designated Atty. William Quasha or any
successions, in respect to the order of member of the Quasha Asperilla Ancheta
succession as well as to the amount of Pena & Nolasco Law Offices, as ancillary
the successional rights and the intrinsic administrator. Richard‟s will was then submitted
validity of their provisions, shall be for probate before the RTC of Makati. Atty.
regulated by the national law of the Quasha was appointed as anciliary
person whose succession is in question, administrator. Atty Ancheta filed a project of
whatever may be the nature of the partition of Audrey‟s estate, with Richard being
property or the country in which it may apportioned the ¾ undivided interest in the
be situated. Makati property, 48.333 shares in A/G Interiors,
Inc., and P9, 313.48 from the Citibank current
But the fact is that the oppositor did not prove account; and Kyle, the ¼ undivided interest in
that said testamentary dispositions are not in the Makati property, 16, 111 shares in A/G
accordance with the Turkish Laws, inasmuch as Interiors, Inc., and P3, 104.49 in cash. The
he did not present any evidence showing what project of partition was granted and approved
the Turkish laws are on the matter, and in the by the trial court. Meanwhile, the ancillary
absence of evidence on such laws, they are administrator in the second petition also filed a
presumed to be the same as those of the project of partition wherein 2/5 of Richard‟s ¾
Philippines. undivided interest in the Makati property was
allocated to respondent while 3/5 thereof
Alonzo Q. Ancheta v. Candelaria Guersey-
were allocated to Richard‟s three children. This
Dalaygon [G.R. No. 139868, June 8, 2006]
was opposed by Candelaria on the ground
that under the law of the State of Maryland “a
Sps. Audrey and Richard were American
legacy passes to the legatee the entire interest
Citizens who have resided in the Philippines for
of the testator in the property subject of the
30 years. They have an adopted daughter,
legacy.” Since Richard left his entire to
Kyle. On July 29, 1979, Audrey died, leaving a
Candelaria, except for his rights and interests
will. In it, she bequeathed her entire estate to
over the A/G Interiors, Inc, shares, then his
Richard, who was also designated as executor.
entire ¾ undivided interest in the Makati
The will was admitted to probate before the
property should be given to Candelaria.
Orphan‟s Court of Baltimore, Maryland, U.S.A,
which named James N. Phillips as executor
Atty. Ancheta contends that he acted in good
due to Richard‟s renunciation of his
faith in performing his duties as an ancillary
appointment. The court also named Atty.
administrator. He maintains that at the time of
Alonzo Q. Ancheta of the Quasha Asperilla
the filing of the project of partition, he was not
Ancheta Pena & Nolasco Law Offices as
aware of the relevant laws of the State of
ancillary administrator.
Maryland, such that the partition was made in
accordance with Philippine Laws. Atty.

16
Ancheta also imputes knowledge on the part bound to introduce in evidence the pertinent
of Candelaria with regard to the terms of law of the State of Maryland. Atty. Ancheta
Aubrey‟s will, stating that as early as 1984, he admitted that he failed to introduce in
already apprised Candelaria of the contents evidence the law of the State of Maryland on
of the will and how the estate will be divided. Estates and Trusts, and merely relied on the
Candelaria argues that Atty. Ancheta‟s presumption that such law is the same as the
breach of his fiduciary duty as ancillary Philippine law on wills and succession. Thus, the
administrator of Aubrey‟s estate amounted to trial court peremptorily applied Philippine Laws
extrinsic fraud. According to Candelaria, Atty. and totally disregarded the terms of Audrey‟s
Ancheta was duty-bound to follow the express will. The obvious result was that there was no
terms of Aubrey‟s will, and his denial of fair submission of the case before the trial court
knowledge of the laws of Maryland cannot or a judicious appreciation of hte evidence
stand because Atty. Ancheta is a senior presented.
partner in a prestigious law firm and it was his
duty to know the relevant laws. Atty. Ancheta insists that his application of
Philippine laws was made in good faith. The
HELD; Atty. Ancheta‟s failure to proficiently Court cannot accept his protestation. How
manage the distribution of Audrey‟s estate can Atty. Ancheta honestly presume that
according to the terms of her will and as Philippine laws apply when as early as the
dictated by the applicable law amounted to reprobate of Audrey‟s will before the trial court
extrinsic fraud. Hence the CA Decision in 1982, it was already brought to fore that
annulling the RTC Orders dated February 12, Audrey was a U.S. Citizen, domiciled in the
1988 and April 7, 1988, must be upheld. It is State of Maryland. Atty. Ancheta is a senior
undisputed that Audrey Guersey was an partner in a prestigious law firm, with a “big
American citizen domiciled in Maryland, U.S.A. legal staff and a large library” He had all the
During the reprobate of her will in Special legal resources to determine the applicable
Proceeding No. 9625, it was shown, among law. It was incumbent upon him to exercise his
others that at the time of Audrey‟s death, she functions as ancillary administrator with
was residing in the Philippines but is domiciled reasonable diligence, and to discharge the
in Maryland, U.S.A; her Last Will and Testament trust reposed on him faithfully. Unfortunately,
dated August 18, 1972 was executed and he failed to perform his fiduciary duties.
probated before the Orphan‟s Court in
Baltimore, Maryland, U.S.A, which was duly Testate Estate of Suntay v. Suntay [July 31,
authenticated and certified by the Register of 1964]
Wills of Baltimore City and attested by the
Chief Judge of said court; the will was With respect to foreign law governing
admitted by the Orphan‟s Court of Baltimore procedure in probate matters in case of
City on September 7, 1979; and the will was reprobate in the Philippines, there is no
authenticated by the Secretary of State of presumption that such laws are the same as
Maryland and the Vice Consul of the Philippine that prescribed under Philippine Law. The will
Embassy. Being a foreign national, the intrinsic should be denied probate in the absence of
validity of Audrey‟s will, especially with regard such proof.
as to who are her heirs is governed by her
national law, i.e., the law of the State of Testate Estate of Christensen v. Garcia [January
Maryland, as provided in Article 16 of the Civil 31, 1963]
Code. While foreign laws do not prove
If the conflicts rules under the national law of
themselves in our jurisdiction and our courts are
the deceased refer the matter to the law of
not authorized to take judicial notice of them;
the domicile and the foreigner was domiciled
however, Atty. Ancheta, as ancillary
in the Philippines at the moment of death,
administrator of Audrey‟s estate, was duty-

17
Philippine courts will have to apply the A. Testator must know the nature of hte
Philippine internal law on succession. This is the estate to be disposed of - must have a
Doctrine of Renvoi, which is the referring back sufficient recollection of his properties
to the forum of the problem. and comprehend their kind, character
and quality in general.
WHAT ARE THE INSTANCES WHEN PHILIPPINE B. Testator must know the proper objects
LAWS MAY STILL APPLY INSOFAR AS THE of his bounty – must be aware of those
INTRINSIC VALIDITY OF THE WILL OF A FOREIGN persons who would naturally be
NATIONAL IS CONCERNED? supposed to have claim upon him.
C. Testator must know the character of the
1. Application of the Doctrine of Renvoi testamentary act – must understand
2. Application of the Doctrine of that he is executing an instrument which
Processual Presumption will dispose of his property upon his
death and which he may revoke
WHO CAN EXECUTE WILLS? anytime.
1. Persons of either sex at least eighteen CITE INSTANCES WHEN THE TESTATOR WAS NOT
years of age; CONSIDERED OF UNSOUND MIND?
2. Persons of sound mind at the time of the
execution of the will. - Senility, Senile Dementia, only complete
senile dementia will result ot
Hence: testamentary incapacity; Torres v. Lopez
de Bueno (48 Phil. 772)
1. One suffering under civil interdiction is
- Senile debility, deafness, poor memor:
allowed to make a will because civil
Sancho v. Abella, (58 Phil 728)
interdiction only prohibits disposition of
- Weakness of mind or partial imbecility
property inter vivos.
from disease of body or from age:
2. Spendthrifts or prodigals under
Alsua-Betts v. CA (July 30, 1979)
guardianship are not disqualified
- Blindness: Avelino v. Dela Cruz (21 Phil
provided at least 18 years and of sound
521)
mind.
- Failure of memory: Bagtas v. Paguio,
Jocson v. Jocson (46 Phil 701), Cuyugan
- Soundness of mind must exist at the time
v. Baron
of execution of will, not required to be
- Epilepsy: Existence will notaffect. Only
of sound mind before or after execution
when seizure occurs while engaged in
of will – Dorotheo v. CA [320 SCRA 12,
testamentary act.
1999] Under the Civil Code, due
- Insomnia: Caguioa v. Calderon (20 Phil.
execution includes a determination of
400)
whether the testator was of sound and
- Tuberculosis: Yap Tua v. Yap CA Kuan(27
disposing mind at the time of its
Phil. 579)
execution, that he had freely executed
- Diabetes: Samson v. Corrales Tan
the will and was not acting under
Quintin (44 Phil 573)
duress, fraud, menace or undue
- Cholera: Galvez v. Galvez (26 Phil. 243)
influence and that the will is genuine
- Paralysis and loss of speech: Bagtas v.
and not a forgery, that he was of the
Paguio
proper testamentary age and that he is
- Celebral Hemorrhage with hemiplagia:
a person not expressly prohibited by law
Carillio v. Jaojoco (46 Phil 957)
from making a will.
- Old Age: Hernaez v. Hernaez (1 Phil 683)
- Delirium: Ordinarily not. Only when
WHAT ARE THE REQUISITES OF A SOUND MIND?
beclouds the mind so as not to

18
understand the nature of act, extent of guardianship does not ipso facto mean that
property, objects of bounty the testator was of unsound mind.
- Ill health: even if hand is guided in 3. Insanity of a general or permanent nature
signing will, lying down and unable to shown to have existed at one time is presumed
move or stand up unassisted – Neyra v. to have continued.
Neyra (76 Phil 333)
- Eccentricities - Burden of proving otherwise rests upon
- ViolentTemperament the proponent of the will
- Passions and prejudices: only when
borders on delusion WHAT WILLS ARE RECOGNIZED IN THE
- Drunkeness or drug addiction: only PHILIPPINES?
when excessive
- Religious belief: Unless assumes chronic A. Ordinary or Notarial Will – requires among
condition of delusion other things, an attestation clause, an
- Asthma: Bugnao v. Uba (14 Phil. 163) acknowledgement before a notary public.

B. Holograph or holographic will – written


CITE INSTANCES WHEN THE TESTATOR WAS
entirely, dated and signed, in the handwriting
CONSIDERED OF UNSOUND MIND?
of the testator. No attestation clause or
- Lack of memory and understanding
acknowledgement required.
and pre-senile dementia; Albornoz v.
Albornoz (71 Phil 414)
WHAT ARE THE FORMALITIES OF NOTARIAL
- State of unconsciousness
WILLS?
- Excitement or stress: if cannot recall
intelligently extent of his property, etc. 1. Must be in writing;
- Partial insanity; insane delusions:
hallucination; belief in things which do 2. Must be in language or dialect known to the
not exist testator;
- Religious delusion
- Drunkeness or drug addiction 3. Subscribed at the end thereof by the
- Idiocy – congenital intellectual testator himself or by the testator‟s name
deficiency written by some other person in his presence,
- Comatose stage and by his express direction;
- Stage of delirium
4. Attested and subscribed by three or more
WHAT ARE THE PRESUMPTIONS AS TO credible witnesses in the presence of the
SOUNDNESS OF MIND? testator and of one another.

A. General Presumption: testator is of sound 5. Must be signed on the left margin by the
mind. Burden of proving otherwise rests upon testator or the person requested by him to
those who oppose the probate of will. To write his name, and by the instrumental
discharge burden: clear and convincing witnesses on each and every page thereof,
evidence is required. except the last;

B. When testator is presumed of unsound mind: 6. All the pages shall be numbered
1. Publicly known to be insane one month or correlatively in letters placed on the upper part
less before making of will. of each page;
2. Judicially declared insane before making a
will. In Torres v. Lopez (48 Phil. 772),the 7. There must be an attestation clause;
Supreme Court ruled that the fact that the
testator was judicially placed under

19
8. The will must be acknowledged before a The failure of the petitioner‟s witnesses
notary public. to testify that the testatrix knew and
spoke Spanish does not in itself alone
- Noncupative wills – wills orally made by suffice to conclude that this important
the testator in contemplation of death requirement of the law has not been
and before competent witnesses; NOT complied with when there is though
RECOGNIZED. evidence of record which supplies this
technical omission. The fact that the
LANGUAGE testatrix was a mestiza Espanola, was
married to a Spaniard, made several
- Testator need not be proficient in the trips to Spain and some of her letters
language used. It is sufficient that he submitted as evidence by the oppositor
can make known his testamentary act were written in Spanish by the testatrix in
through the language used. her own writing give rise to the
presumption that the testatrix knew the
- Presumption: knew the language in
language in which the testament has
which the will is written unless the
been written, which presumption should
contrary is proven.
stand unless the contrary is proven.
- Hence:
Testate Estate of the Late Alipio Abada
v. Abaja (G.R. No. 147145, January 31,
1. No statutory requirement that the will
2005)
should allege that the language used
therein is understood by the testator
Abada died sometime in May 1940. His
(Lopez v. Liboro, 81 Phil. 429)
widown Paula Toray “Toray” died
sometime in September 1943. Both died
2. No need to state in the attestation
without legitimate children. On
clause that the will is written in the
September 13, 1968, Alipio filed a
language known to the testator.
petition for the probate of the last will
3. That the will is in the language known and testament of Abada. Abada
to the testator can be proved by allegedly named as his testamentary
EXTRINSIC EVIDENCE or even by oral heirs his natural children Eulogio and
evidence. Rosario Cordova. Alipio is the son of
Eulogio. Caponong, as well as the
4. If executed in the language of the nephews, nieces and grandchildren of
locality where the testator lives there is a Abada and Toray opposed the petition.
presumption that testator knows it.
Issues:
Abangan v. Abangan (40 Phil 476)
1. Whether Caponong-Noble is
The circumstance appearing in the will precluded form raising the issue of
itself that same was executed in the City whether the will of Abada is written ina
of Cebu and in the dialect of this languge known to Abada;
locality where the testatrix was a
neighbour is enough, in the absence of 2. Whether evidence aliunde may be
any proof to the contrary, to presume resorted to in the probate of the will of
that she knew this dialect in which her Abada.
will is written.
Held: Caponong-Noble points out that
Reyes v. Vidal (91 Phil. 127) nowhere in the will can one discern hat

20
Abadda knew the Spanish language. Nor can the presumption in favor of a
She alleges that such defect is fatal will established by this court in Abangan
and must result in the disallowance of v. Abangan (40 Phil 476), to the effect
the will. On this issue, the CA held that that the testator is presumed to know
the matter was not raised in the motion the dialect of the locality where he
to dismiss and that it is now too late to resides, unless there is proof to the
raise the issue on appeal. We agree contrary, even be invoked in support of
with Caponong-Noble that the doctrine the probate of will, because in the
of estoppel does not apply in probate instant case not only is it notproven that
proceedings. Nevertheless, Caponong- English is the language of the City of
Noble‟s contention must still fail. There is Baguio where the deceased Piraso lived
no statutory requirement to state in the and where the will was drawn, but that
will itself that the testator knew the the record contains positive proof that
language or dialect used in the will. This said Piraso knew no other language
is a matter that the testator knew the than the Igorrote dialect, with a
language or dialect used in the will. This smattering of Ilocano; that is he did not
is a matter that a party may establish by know the Englishlanguage in which the
proof aliunde. Caponong-Noble further will is written. So that even if such a
argues that Alipio, in is testimony, has presumption could have been raised in
failed, among others, to show that this case, it would have been wholly
Abada kenw or understood the contradicted and destroyed.
contents of the will and the Spanish
language used in the will. However, Suroza v. Honrado (110 S 32)
Alipio testified that Abada used to
gather Spanish-speaking people in their Testator must know or at least
place. In these gatherings, Abada and understand the language. This lack of
his companions would talk in the knowledge cannot be cured by
Spanish language. This sufficiently interpretation or explanation of the
proves that Abada speaks the Spanish contents to the testator.
language.

Testate Estate of Javellana


v.Javellana(106 Phil 1973) With respect to attesting witnesses, they need
not know the language used in the body of
Where there is want of expression in the the will, only in the attestation clause. If do not
body of the will itself or in the attestation know the language in the attestation clause,
clause that the testator knew the may be cured by explanation or interpretation.
language in which the will was written,
proof thereof may be established by Testator need not also know the language in
evidence aliunde. Although lack of such the attestation clause.
evidence may be cured by
Is the Date Important in Wills?
presumption of knowledge of the
language or dialect used in the will, no
1. Not an essential requirement for a notarial
such presumption can arise where, as in
will. Will not vitiate the will. Necessary to know
the case at bar, the will was executed in
only when there are more than 1 will to
Spanish, while the testtor was a Visayan
determine which is the last will.Date may be
residing in San Juan, Rizal at the time of
established by exrinsci evidence.
his death.
2. Required in holographic wills.
Acop v. Piraso, 52 Pil. 660

21
What is meant by Subscription? The evidence of record satisfactorily discloses
that Cristina Valdes, deceased, placed her
Subscribed means signed. cross against her name attached by some
other person to the instrument offered for
Who will sign? probate which purports to be her last will and
testament, in the presence of the three
a. The testator himself witnesses whose names are attached to the
attesting clause, and that they attested and
b. Some other person provided it is under the
subscribed the instrument in her presence and
express direction and in the presence of the
in the presence of each other.
testator.
-but cross was not sufficient in
Some other person: Anybody may sign for the
testator, even one of the subscribing witnesses Garcia v. Lacuesta (90 Phil 489)
(Barut v. Cagacungan, 21 Phil 461), as long as
there are more than 3 as implied in the case of Because the cross was not the customary
(In Re Will of Tan Duico, 45Phil. 807) when it signature of the testator, there should have
said: “that the testator or the person acting in been a statement in the attestation clause
his stead as well as the 3 witnesses sign on the that the will was signed by some other person
left margin on each page or sheet. in behalf of the testator. The absence of this
statement invalidated the will.
Note: In the case of Barut there were4
witnesses. How about Electronic/Digital Signature, under
the Electronic Commerce Act
In the presence: it is not necessary that testator
actually sees the signing as long as he can do -Not allowed because an e-signature is
so if he wants to without any physical supposed to be attached to or logically
obstruction. Or if the testator is blind, it is associated with the e-data message or e-
enough that he could have felt it. document or any methodology or procedures
employed or adopted by a person and
Under the express direction: Must be expressly executed or adopted by such a person with
authorized. The testator shall, by word of the intention of authenticating or approving
mouth or action (Nodding of head,) clearly an e-message (information) or e-document. E-
indicate to the proxy a desire to have his name signatures are affixed pursuant to transactions
signed to the instrument. The testator‟s mere and contracts. E-signature is not a handwritten
knowledge or consent that his name was signature that is scanned or graphically
being signed for him, or his acquiescence in imprinted on the e-document.
such an act, or a mere implied assent to the
signing by another person is not sufficient to Where should the signature be Located?
meet the requirement of express direction.
Approval must precede, not succeed the act -At the logical end of the will, not necessarily
of signing. the physical end. Immediately after the last
dispositive provision, before the attestation
What is Being Signed or Affixed? clause.

Customary Signature of the testator or any Purpose to prevent insertion of unauthorized


mark actually intended as a signature, even if provisions.
not the customary signature.
Additional clauses or provisions after the
Leano v. Leano (30 Phil 6120 signature in a NOTARIAL WILL invalidate the
entire will itself.

22
Who are the Credible Witnesses in the Will? referring to the physical presence of a person
in a place. Acquired by living in a place. A
Credible witnesses have all the qualifications person can have 2 or more residences.
imposed by law. Must be able or competent to Domicile can exist without actually living in the
testifiy. They are the attesting or subscribing place as long as once residence has been
witnesses. established in one place, there be an intention
to stay there permanently, even if residence is
Gonzales v. CA ,90 SCRA 183 also established in some other place.
“Credible witnesses” mean competent • Effect of Pardon: (for those convicted of
witnesses and not those who testify to facts falsification of document, perjury or false
from or upon hearsay. In the strict sense, the testimony.
competency of a person to be an instrument - if by reason of innocence, can already be a
witness to a will is determined by the statue, witness because no untrustworthiness or
that is Art. 820 and 821, Civil Code, whereas hie dishonesty
credibility depends on the appreciation of his - if act of executive grace or clemency,
testimony and arises from the belief and disqualification subsists because does not
conclusion of the court that said witness is change the fact of dishonesty
telling the truth. It is not necessary to introduce • Notary public also disqualified to be a
prior and independent proof of the fact that witness because he cannot acknowledge the
the witnesses are “credible witnesses”, that is will before himself (Cruz vs. Villasor [54 SRCA
that they have good standing in the 31])
community and reputed to be trustworthy and • Witnesses must be competent at the
reliable. time of attesting. Reason: there is nothing left
to be done by the witnesses in order to comply
c. Subscribing and attesting witnesses are with the requirements of the law regarding
called instrumental witnesses because they attestation.
take part in the execution of an instrument or • If there are only 3 attesting witnesses: if
writing. the attesting witness is a recipient of a legacy
d. Attesting witnesses must be the same or device in the will he is attesting, or the
marginal witnesses, otherwise, will is void. spouse, parent, or child of such attesting
e. Purpose of marginal signature is for witness is the recipient, the legacy to the
identification of the pages used and thus attesting witness, his spouse, parent child or
prevent fraud. Purpose is served signed on the anyone claiming under the attesting witness,
right, top, left, bottom margins: Nayve vs. his spouse, parent, or child is void. But the
Mojal, (47 Phil 152) qualification of the other person to attest the
will is not affected and the rest of the will
WHAT ARE THE QUALIFICATIONS OF WITNESSES remain valid.
TO WILLS? • If there more than 3 witnesses, the
• Qualifications of witnesses: legacy or devise is valid. Reason: the invalidity
1. of sound mind of legacy or devise stems from his being an
2. age of 18 or more attesting witness. If more than 3 witnesses, it is
3. not blind, deaf or dumb already a surplusage.
4. able to read and write • Compulsory heir who is also an attesting
5. domiciled in the Philippines witness, can still get the legitime. Disqualified
6. has not been convicted, (by final only with respect to the free portion given in
judgment) of falsification of document, perjury, excess of their legitime.
or false testimony
• Unlike in Election Law. In the Civil Code,
there is difference between Domicile and
Residence. Residence is a material fact,

23
WHAT ARE MARGINAL SIGNATURES? • Law says on the upper part but in case
– the signatures of the testator and the of Fernandez vs. de Dios, 46 Phil 922, paging
witnesses on each and every page of the will may be placed at the top, bottom, or even at
at the left margin. the left or right margin, or even in the text itself.
f. If no marginal signature on the 1st page: • Document has 4 pages, 1st 3 pages
– If will has only one page, no marginal contain dispositions, 4th page contains
signatures are needed because logically, the attestation clause. If only the 1st 3 contain the
page will already contain signatures of the pages but attestation clause says, this will
testator and witnesses: Abangan vs. Abangan, consist of 3 pages excluding this attestation
(40 Phil 476) clause, it is evident that the page containing
– But if there is more than 1 page, 1st the attestation clause is the 4th page.
page, as well as all the other pages, must be (Fernandez vs. Vergel de Dios)
signed: Estate of Tampoy vs. Alberastine, (Feb • If sole page is unnumbered. Will is valid
25, 1960). because the reason for requirement no longer
– What is important is that each and applies. Loss or removal of the sheet cannot be
every page bears the signatures of the testator hidden – Abangan vs. Abangan(40 Phil 476)
and the witnesses (Nayve vs. Mojal, 47 Phil 152)
– Absence of marginal signature, if no WHAT IS THE PURPOSE OF NUMBERING?
signature appears on a page, is a FATAL • Purpose of numbering:
DEFECT. Will is extrinsically invalid hence, 1. to guard against fraud
cannot be admitted to probate. 2. to forestall any attempt to suppress or
– But see the case of: substitute any of the pages
3. to prevent any increase or decrease of
ICASIANO vs. ICASIANO (11 SCRA 720) pages
The original of the will consisted of 5 pages but 4. to afford means of detecting the loss of
while signed at the end of each and every any of its pages
page, it did not contain the signature of one of
the attesting witnesses on page 3 thereof, due WHAT IS THE MEANING OF “TO ATTEST?”
to the simultaneous lifting of two pages in the The act of witnessing the testator and the
course of the signing although the duplicate witnesses sign the will.
copy was signed by the testatrix and the
attesting witnesses in each and every page. DISTINGUISH ATTESTATION FROM SUBSCRIPTION?
HELD: The law should not be so strictly and Attestation Subscri
literally interpreted as to penalize the testatrix
on account of the inadvertence of a single 1. Consists in witnessing the testator's 1. The
witness over whose conduct she had no execution of the will in order to see and take the sa
control, where the purpose of the law is to note mentally that those things are done identific
guarantee the identity of the testament and its which the statute requires for the execution was ex
component pages is sufficiently attained, no of a will and that the signature of the testator
intentional or deliberate deviation existed, and exists as a fact. It is the act of witnesses not
the evidence on record attests to the full that of the testator although it necessarily
observance of the statutory requisites. involves the act of the testator in executing
the will and requesting the witnesses to act as
HOW SHOULD THE PAGES OF THE WILL BE such.
NUMBERED? 2. Mec
• Numbered correlatively in letter (one, 2.Mental act, act of the senses
two, three, etc) but use Arabic numerals 3. Purp
(Unson vs. Abella, 43 Phil 494), or letters ABC 3. Purpose is to render available proof of the that th
(Aldaba vs. Roque, 43 Phil 378), or numbers 123 authenticity of the will and its due execution. by the
(Nayve vs. Mojal), will not validate the will. witness

24
was ofsigned
execution is as
the will clearly established
embodied in the by the
uncontradicted
attestation testimony of both Atty.
has been performed.
Villanueva and Herminio Maravilla; and that
detail proves
4. To attest a will is to know that it was 4.To subscribe beyond
a paper doubtasthat
published each
a will is one of
published as such and to certify the facts only tothe parties
write concerned
on the same paperdid sign
the in the presence
names
of all the others. It should
required to constitute an actual and legal of the witnesses, for the sole purpose ofbe remembered, in
publication. this connection, that the test is not whether the
identification.
witness did see the signing of the will but
whether he was in position to see if he chose to
WHAT IS THE MEANING OF “IN THE PRESENCE?”
do so. If testator is blind, enough that signing or
• In the presence, with respect to the
action is within the range of the other senses
witnesses does not necessarily require actual
like hearing, touch, etc. as long as testator
seeing but possibility of seeing or sensing
realizes what is being done. TEST OF AVAILABLE
without any physical obstruction.
SENSES.
• Generally Accepted Tests of Presence
(Jaboneta vs. Gustillo, 55 Phil 541)
- Does not matter that witnesses signed ahead
2. test of vision
of or after the testator as long as signing is
3. test of position
sufficiently contemporaneous and made on
4. test of mental apprehension
one occasion (same time and place) and as
5. test of available senses
part of one single transaction. (Gabriel vs.
Mateo, 51 Phil 216.)
JABONETA vs. GUSTILLO (5 Phil 541)
Testator has his back turned. Signing was done
in his presence since he could have cast his
Purpose of requiring presence to avoid
eyes in the proper direction.
fraudulent substitution of the will and to make it
more difficult the invention of false testimony
NERA vs. RIMANDO (18 Phil 450)
by the witnesses since they may be the
There was a curtain separating the testator
witnesses of one another.
and some witnesses from other witnesses. Not
in the presence so will not valid. What is an attestation clause?

MARAVILLA vs. MARAVILLA (37 SCRA 672) That clause of an ordinary or notarial will
It was but natural that witness Mansueto should wherein the witnesses certify that the
be positive about his own signature, since he instrument has been executed before them
was familiar with it. He had to be less positive and the manner of the execution of the same.
about Digna Maravilla's (testator) signature It is a separate memorandum or record of the
since he could not be closely acquainted with facts surrounding the conduct of execution
the same for aught the record shoes, the and once signed by the witnesses, it gives
signing of the will was the only occasion he affirmation to the fact that compliance with
saw her sign: he had no opportunity to study the essential formalities required by law has
her signature before or after execution of the been observed.
will. Furthermore, he witnessed Digna's signing
not less than 14 years previously. To demand Nature: Attestation clause is a declaration
that in identifying Digna's signature Mansueto made by the witnesses, not by the testator
should display a positiveness equal to the Tenafrancia v. Abaja, 87 Phil 139 hence, only
certainty shown by him in recognizing his own, signatures of witnesses are required in the
exceeds the bounds of the reasonable. That attestation clause. Witnesses must know the
Manseuto, Hernaez and Buenaflor, together recitals of the clause but need not need to
with the testatrix and the lawyer, sat next to know the content of the will itself.
one another around one table when the will

25
Strictly speaking, not part of the will because clause, although the page containing
does not contain dispositions. the same is signed by the witnesses on
the left-hand margin.
a. Purpose: To preserve in permanent form a
record of the facts attending the execution of We are of the opinion that the position
the will, so that in case of death, absence or taken by the appellant is correct. The
failure of the memory of the subscribing attestation clause is a memorandum of
witnesses, or other casualty, the due execution the facts attending the execution of the
may still be proved Leynez v. Leynez, 68 Phil will required by law to be made by the
745 attesting witnesses, and it must
necessarily bear their signatures. An
b. Subscribing witnesses attest to: unsigned attestation clause cannot be
considered as an act of the witnesses,
1. The genuineness of the signature of the since the omission of their signatures at
testator the bottom thereof negatives their
participation.
2. The due execution of the will as embodied in
the attestation clause (capacity of the testator The petitioner and appellee contends
absence of undue influence etc) that signatures of the three witnesses on
the left-hand margin conform
Distinguish Marginal Signature from Attesting substantially to the law and may be
Signature deemed as their signatures to the
attestation clause. This is untenable,
Azuela v. CA, G.R. No.122880, April 12, 2006
because said signatures, are in
compliance with the legal mandate
The three named witnesses to the will affixed
that the will be signed on the left-hand
their signatures on the left hand margin of both
margin of all its pages. If an attestation
the pages of the will, but not at the bottom of
clause not signed by the three witnesses
the attestation clause. Is the will valid?
at the bottom thereof, be admitted as
Held: No! While the signatures of the sufficient, it would be easy. To add such
instrumental witnesses appear on the left hand clause to a will on a subsequent
margin of the will, they do not appear at the occasion and in the absence of the
bottom of the attestation clause which after all testator and any or all of the witnesses.
consists of their averments before the notary
The Court today reiterates the
public. Cagro v. Cagro is material on this
continued efficacy of Cagro. Article 805
point. As in this case, “the signatures of the
particularly segregates the requirement that
three witnesses to the will do not appear at the
the instrumental witnesses sign each page of
bottom of the attestation clause, although the
the will from the requisite that the will be
page containing the same is signed by the
“attested and subscribed by the instrumental
witnesses on the left-hand margin.” While three
witnesses. The respective intents behind these
Justices considered the signature requirement
two classes of signature are distinct from each
had been substantially complied with, a
other. The signatures on the left-hand corner of
majority of six, speaking through Chief Justice
every page signify, among others, that the
Paras, ruled that the attestation clause had not
witnesses are aware that the page they are
been duly signed, rendering the will fatally
signing forms part of the will. On the other
defective.
hand, the signatures to the attestation clause
There is no question that the signatures establish that the witnesses are referring to the
of the three witnesses to the will do not statements contained in the attestation clause
appear at the bottom of the attestation itself. Indeed, the attestation clause is separate

26
and apart from the disposition of the will. An the insertion of the number of pages in the
unsigned attestation clause results in an attestation clause. Yet the blank was never
unattested will. Even if the instrumental filled in; hence, the requisite was left
witnesses signed the left-hand margin of the uncomplied with.
page containing the unsigned attestation
clause, such signatures cannot demonstrate Held: The failure of the attestation clause to
these witnesses undertakings in the clause, state the number of pages on which the will
since the signatures that do appear on the was written remains a fatal flaw, despite Article
page were directed towards a wholly different 809 (substantial compliance). The purpose of
avowal. the law in requiring the clause to state the
number of pages on which the will is written is
The Court may be more charitably to safeguard against possible interpolation or
disposed had the witnesses in this case signed omission of one or some of its pages and to
the attestation clause itself, but not the left- prevent any increa ore decrease in the pages.
hand margin of the page containing such The failure to state the number of pages
clause. Without diminishing the value of the equates with the absence of an averment on
instrumental witnesses‟ signatures on each and the part of the instrumental witnesses as to how
every page, the fact must be noted that it is many pages consisted the will, the execution
the attestation clause which contains the of which they had ostensibly witnessed and
utterances reduced into writing of the subscribed to. Following Caneda, there is
testamentary witnesses themselves. It is the substantial compliance with this requirement if
witnesses, and not the testator, who are the will states elsewhere in it how many pages
required under Article 805 to state the number it is comprised of, as was the situation in
of pages used upon which the will is written; Singson v. Taboada. However in this case,
the fact that the testator had signed the will there could have been no substantial
and every page thereof; and that they compliance with the requirements under
witnessed and signed the will and all the pages Article 805 since there is no statement in the
thereof in the presence of the testator and of attestation clause or anywhere in the will itself
one another. The only proof in thewill that the as to the number of pages which comprise the
witnesses have stated these elemental facts will.
would be their signatures on the attestation
clause. Taboada v. Rosal, 118 S 195, G.R. No. L-36033,
November 5, 1982
What matters should be stated in the
Attestation Clause? The attestation clause failed to state the
number of pages used in writing the will. This
1. The number of pages used upon which the would have been a fatal defect were it not for
will is written. the fact that, in this case, it is discernible from
the entire will that it is really and actually
Azuela v. CA G.R. No. 122880, April 12, 2006 composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As
The petitioner argues that the requirement earlier stated, the first page which contains the
under Article 805 of the Civil Code that the entirety of the testamentary dispositions is
number of pages used in a notarial will be signed by the testatrix at the end or at the
stated in the attestation clause is merely bottom while the instrumental witnesses signed
directory, rather than mandatory, and thus at the left margin. The other page hich is
susceptible to what he termed as the marked as “Pagina Dos” comprises the
substantial compliance rule. As admitted b attestation clause and the acknowledgment.
petitioner himself, the attestation clause fails The acknowledgment itself states that “This Last
this requisite, a space having been allotted for

27
Will and Testament consists of two pages the presence of the testator and of one
including this page.” another.

Testate Estate of the Late Alipio Abada v.


Abaja, G.R. No. 147145, January 31, 2005
Testate Estate of the Late Alipio Abada v.
Caponong-Noble proceeds to point out Abaja, G.R. No. 147145, January 31, 2005
several defects in the attestation clause.
Caponong-Noble alleges that the attestation 1. Caponong-Noble further alleges that the
clause fails to state the number of pages on attestation clause fails to state expressly that
which the will is written. The allegation has no the testator signed the willand its every page in
merit. The phrase which means in the left the presence of three witnesses. The English
margin of each and every one of the two translation of the first sentence of the
pages consisting of the same shows that the attestation clause reads: „Subscribed and
will consists of two pages. The pages are professed by the testator Alipio Abada as his
numbered correlatively with the letters One last will and testament in our presence, the
and two as can be gleaned from the phrase testator having also signed it in our presence
“las cuales estan paginadas correlativamente on the left margin of each and every one of
con las letras uno y dos. the pages of the same.” The attestation clause
clearly states that Abada signed the will and its
2. The fact that the testator signed the will and every page in the presence of the witnesses.
every page thereof or caused some other
person to write his name under his express 2. However, Caponong-Noble is correct in
direction only; saying that the attestation clause does not
indicate the number of witnesses. On this point,
Garcia v. Lacuesta (90 Phil. 489): A lawyer the Court agrees with the appellate court in
wrote the name of testator Antero Mercado. applying the rule on substantial compliance in
Testator placed a cross after his name. determining the number of witnesses. While the
Because the cross was not the customary attestation clause does not state the number
signature of testator, the will is deemed to of witnesses, a close inspection of the will show
have been signed by the lawyer for the sthat three witnesses signed it. We rule to apply
testator. Hence, attestation must state that will the liberal construction in the probate of
is signed by another under express direction of Abada‟s will. Abada‟s will clearly shows four
testator –Exam Question signatures, that of Abada and of three other
persons. It is reasonable to conclude that there
Payad v. Tolentino (62 Phil 848): not required to are three witnesses to the will. The question on
state that another person was requested by the number of the witnesses is answered by an
testator to sign for him because will is examination of the will itself and without the
thumbmarked by testator. need for presentation of evidence aliunde. The
court explained the extent and limits of the rule
Need not state that the person caused by the on liberal construction, thus: The so called
testator to sign signed in the testator‟s liberal rule does not offer any puzzle or
presence (Jallores v. Interino, L-42463) difficulty, nor does it open the door to serious
consequences. The later decisions dot ell us
3. The signing by the testator or by the person when and where to stop , they draw the
requested by him was in the presence of the dividing line with precision. They do not allow
instrumental witnesses. evidence aliunde tofill a void in any part of the
document or supply missing details that should
4. That the instrumental witnesses witnessed
appear in the will itself. They only permit a
and signed the will and all the pages thereof in
probe in the will, an exploration within its

28
convines, to ascertain its meaning or to voluntarily executed the will and that
determine the existence or absence of the they understood its contents.
requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to  Meaning of to acknowledge: to own as
banish any fear of dire results. genuine to avow or admit.

3. Finally, Caponong-Noble alleges that the Azuela v. CA G.R. No. 122880, April 12, 2006
attestation clause does not expressly state the
circumstances that the witnesses witnessed Yet there is another fatal defect to the will on
and signed the will and all its pages in the which the denial of this petition should also
presence of the testator and of each other. hinge. The requirement under Article 806 that
This court has ruled: Precision of language in “every will must be acknowledged before a
the drafting of an attestation clause is notary public by the testator and the
desirable. However, it is not imperative that a witnesses” has also not been complied with.
parrot-like copy of the words of the statute be The importance of this requirement is
made. It is sufficient if fro the language highlighted by the fact that it had been
employed it can reasonably be deduced that segregated from the other requirements under
the attestation clausefulfills what the law Article 805 and entrusted into a separate
expects of it. The last part of the attestation provision, Article 806. The non-observance of
clause states “en testimonio de ell, cada uno Article 806 in this case is equally critical as the
de nosotros to firmamos en presencia de other cited flaws in compliance with Article 805
nosotros y del testador.” In english, this means and shouldbe treated as of equivalent import.
“in its witness, every one of us also signed in our
presence and of the testator.” This clearly In lieu of an acknowledgement, the notary
shows that the attesting witnesses witnessed public, Petronio Y. Bautista wrote “Nilagdaan
the signing of the will of the testator and that ko at ninotario ko ngayong 10 ng Hunyo 10,
each witness signed the will in the presence of 1931 dito sa Lungsod ng Maynila” By no
one another and of the testator. manner of contemplation can those words be
construed as an acknowledgment. An
acknowledgment is the act of one who has
executed a deed in going before some
What language is Used in the Attestation competent officer or court and declaring it to
Clause? be his act or deed. It involves an extra step
undertaken whereby the signor actually
1. Preferably language or dialect known to the declares to the notary that the executor of a
witnesses document has attested to the notary that the
same is his/her own free act and deed.
2. Language or dialect not known to the
witness – can also be used but must be
interpreted to the witness.
It might be possible to construe the averment
as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of
What is an acknowledgment before a Notary an affidavit where the notary certifies that
Public? before him/her, the document was subscribed
and swornto by the executor. Ordinarily, the
 A statement made by the notary public language of th3e jurat should avow that the
that the testator and the witnesses have document was subscribed and sworn before
personally come before him, that they

29
the notary public, while in this case, the notary 1. He cannot acknowledge document before
public averred that he himself “signed and himself. He cannot split his personality into 2.
notarized” the document. Possibly though, the Case: Cruz v. Villasor, November 26, 1973
word “ninotario or notarized” encompasses
the signing of and swearing in of the executors 2. Function of notary public is to guard against
of the document, which in this case would any illegal or immoral arrangements. Function
involve the decedent and the instrumental would be defeated if he were on of the
witnesses. attesting witnesses because by then he would
be interested in sustaining the validity of the wil
Yet even if we consider what was affixed by as it directly involves himself and the validity of
the notary public as a jurat, the will would his own act.
nonetheless remain invalid, as the express
requirement of Article 806 is that the will be
“acknowledged”, and not merely subscribed
and sworn to. The will does not present any Is the Notary Public required to know the
textual proof, much less one under oath, that contents of the will?
the decedent and the instrumental witnesses
executed or signed the will as their own free  As a general rule, notary public is not
act or deed. The acknowledgment made in a required to read the will or know the
will provides for another all-important legal contents thereof.
safeguard against spurious wills or those made
 Exception: If the testator is blind
beyond the free consent of the testator. An
because the will has to be read onceby
acknowledgment is not an empty meaningless
a subscribing witness and again by the
act. The acknowledgment coerces the
notary public before whom the will is
testator and the instrumental witnesses to
acknowledged.
declare before an officer of the law that they
had executed and subscribed to the will as
Is failure to affix a documentary stamp in a n
their own free act or deed. Such declaration is
acknowledged will a fatal defect?
under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons  Failure to affix documentary stamp in
who participate in the execution of spurious the acknowledgment of the will. Nota
wills or those executed without the free fatal defect. Justrequire the parties to
consent of the testator. It also provides a affix the documentary stamp. Case:
further degree of assurance that the testator is Gabucan v. Judge Manta, 21 S 1056,
of certain mindset in making the testamentary January 28, 1980
dispositions to those persons he/she
designated in the will. It may not have been
said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will What are theadditional requisites for a blind
that is not acknowledged before a notary testator?
public by the testator and the witnesses is
fatally defective even if it is subscribed and  Reading is twice.
sworn to before a notary public.
1. Once by one of the subscribing witnesses.

2. Once by the notary public.


Can the Notary Public be one of the
Instrumental Witnesses?  Even if testator is blind, no requirement
that notary public should be present
No because: during execution of will

30
 If testator is deaf-mute and also blind, which, when taken into account, may only
generally cannot execute a will unless defeat the testator‟s will.
the contents of the will may be
communicated to him in accordance Garcia v. Vasquez, 32 S 490
with law.
The declarations in court of the
 Article 808 applies also topersons who ophthalmologist as to the condition of the
are incapable of reading wills like testatrix‟s eyesight fully establish the fact
illiterate. that her vision remained mainly for viewing
distant objects and not for reading print;
Alvarado v. Gaviola, 226 S 317 that she was at the time of the execution of
the second will on December 29, 1960,
The testatrix was suffering from glaucoma incapable of reading and could not have
by virtue of which her vision on both eyes read the provisions of the will supposedly
were on capable of counting fingers at signed by her. Upon its face, the
three feet. She designated a lawyer to draft testamentary provisions, the attestation
her notarial will. After the final draft was clause and acknowledgment were
completed, the lawyer distributed copies of crammed together into a single sheet of
the will to the three instrumental witnesses paper, apparently to save on space.
and to the notarypublic before whom the Plainly, the testament was not prepared
will was to be acknowledged. The lawyer with any regard for the defective vision of
who drafted the will read the will aloud in Dona Gliceria, they typographical errors
the presence of the testatrix, the three remained uncorrected thereby indicating
instrumental witnesses, and the notary that the execution thereof must have been
public. The latter four just silently followed characterized by haste. It is difficult to
the reading with their own respective understand that so important a document
copies, previously furnished them. Upon containing the final disposition of one‟s
being asked, the testatrix affirmed that the wordly possession should be embodied in
contents as read corresponded with her an informal and untidy written instrument;
instructions. The signing and or that the glaring spelling errors should
acknowledgment then took place. The have escaped her notice. If she had
probate was contested on the ground that actually retained the ability to read the
the reading requirement under Article 808 purported will and had done so. The
of the New Civil Code was not complied rationale behind the requirement of
with. reading the will to the testator if he is blind
or incapable of reading the will himself is to
Held: Article808 applies not only to blind make the provisions thereof known to him,
testators but also to those who for one so that he may be able to object if they
reason or another, are incapable of are not in accordance with his wishes.
reading their wills. Hence, the will should Where as in the 1960will there is nothing in
have been read by th3e notary public and the record to show that the requisites of Art.
an instrumental witness. However, the spirit 808 of the Civil Code of the Philippines that
behind the law was served though the “ if the testator is blind, the will shall be read
letter was not. Although there should be to him twice,” have not been complied
strict compliance with the substantial with, the said 1960 will suffer from infirmity
requirements of the law in order to insure that affects its due execution.
the authenticity of the will, the formal
imperfections should be brushed aside How should the formalities be construed?
when they do not affect its purpose and

31
1. Generally formalities in the execution of  Substantial Compliance – when there has
wills are strictly construed: Abangan v. been an honest attempt to comply with all
Abangan, 40 Phil 476 the requirements of the law but the
compliance is only substantial not literal
2.Purpose: To close doors against fraud, and the purpose sought to be attained by
bad faith, to avoid substitution, to the law is accomplished though not strictly
guarantee authenticity of wills. followed.
 Purpose: designed to attain the main
3. Compare with Article 788 on liberal objective in the liberalization of the manner
interpretation. Article 788 talks about liberal of executing wills. Policy is to require
interpretation of doubts in the dispositions. satisfaction of legal requirements to guard
Interpretation of body or contents of will against fraud and bad faith but without
should not extend to the manner of undue or unnecessary curtailment of
execution or formalities. testamentary privilege.
 Justice J.B.L. Reyes observed that if the rule
4. But will should not be so literally is so broad that no matter how imperfect
interpreted as to penalize the testator who the attestation clause happens to be, the
was without fault where the purpose of the same could be cured by evidence aliunde
law is sufficiently attained. or extrinsic execution. Also discussed in
Caneda vs. CA (222 SCRA 781)
Icasiano v. Icasiano, 11 SCRA 720
 Hence, the rule must be limited to
disregarding those defects that can be
The original of the will consisted of 5 pages
supplied by an examination of the will itself:
but while signed at the end of each and
Eg. Whether the pages are consecutively
every page, it did not contain the signature
numbered, whether the signatures appear
of one of the attesting witnesses on page 3
in each and every page, whether there are
thereof, due to the simultaneous lifting of 2
3 subscribing witnesses, etc.
pages in the course of the signing although
the duplicate copy was signed by the
TESTATE ESTATE OF THE LATE ALIPIO ABADA
testatrix and the attesting witnesses in each
vs. ABAJA (G.R. NO. 147145, JANUARY 31,
and every page.
2005)
Held: The law should not be so strictly and [T]he so-called liberal rule does not offer
literally interpreted as to penalize the any puzzle or difficulty, nor does it open
testatrix on account of the inadvertence of door to serious consequences. The later
a singe witness over whose conduct she decisions do tell us when and where to
had no control, where the purpose of the stop; they draw the dividing line with
law is to guarantee the identity of the precision. They do not allow evidence
testament and its component pages is aliunde to fill a void in any part of the
sufficiently attained, no intention or document or supply missing details that
deliberate deviation existed, and the should appear in the will itself. They only
evidence on record attests to the full permit a probe into the will, an exploration
observance of the statutory requisites. within its confines, to ascertain its meaning
or to determine the existence or absence of
WHAT IS THE PRINCIPLE OF SUBSTANTIAL the requisite formalities of law. This clear,
COMPLIANCE? sharp limitation eliminates uncertainty and
 As long as purpose of attestation is served, ought to banish any fear of dire results.
the will should be given effect. Case:
Alvarado vs. Gaviola (226 SCRA 317) Taboada vs. Rosal

32
Caneda vs. CA (222 SCRA 784) – Actually
talks “3 pages and he has signed the same Date of Will
and every page thereof, on the spaces  Purpose: (1) to provide against
provided for his signature, and on the left contingencies as that of 2 competing wills
hand margin in the presence of the said executed on same day or different dates –
testator and in the presence of each and the will executed on the later date is
all of us.” Void. Omits the statement that considered as truly expressing last will; (2) to
witnesses signed each and every page in determine whether or not testator became
the presence of each other. Article 809 insane on the day when will is made; (3) to
can be applied where the defect can be determine if will is valid because there is a
cured and supplied by the text of the will or point in history wherein holographic wills are
a consideration of matters apparent no allowed.
therefrom.  Gen. Rule: should include the day, month
and year
 NOTE: IN BOTH DEFECTS OF FORM AND  What if date is indicated by implication?
SUBSTANCE, LIBERAL ITERPRETATION APPLIES Eg. Christmas day of 2003. Case: Roxas vs.
ONLY WHEN THE DEFECT CAN BE CURED BY De Jesus, Jr. (Jan. 28, 1985) – will was
INTRINSIC EVIDENCE allowed even if Feb 1961 because the
contingencies guarded against are not
WHAT ARE THE REQUISITES FOR HOLOGRAPHIC present.
WILLS?  Where should date appear? Anywhere. Eg.
1. Must be written in a language or dialect Top, bottom, body, signature, etc. Case:
known to the testator (Art 804); Labrador vs. CA (180 SCRA 120)
2. Entirely written by the testator;
3. Must be dated by him; Signature
4. Must be signed by him;  Law says Full signature. Ideally, full first
5. Must be made with animus testandi; name and family name.
 But if the customary signature is a
Entirely written pseudonym or initial of first/lastname name
 Must be wholly autographic or handwritten and full first name/surname, also allowed as
by testator himself. long as it is the full customary signature.
 Purpose: efficient guaranty against all  But all initials are not allowed.
falsifications or alterations in the will. Easier  Thumbmark not allowed because it is not
to forge the signature of testator than forge the handwriting of testator.
the whole text or will.  Time of signing: Signing may be done on a
 Mechanical drafting cannot be entrusted date subsequent to the execution of will
to third person. But a third person may draft  Location of signature: at the end of will as
a will and the testator may just copy the evident in Art. 812
draft made by the third person.  Can be made by a blind testator as long as
 Will partly or wholly printed, typewritten, qualified
computerized is void. Even if only the date
is typewritten, will is void. CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS
 What if not handwritten? If testator has no SIGNATURE IN A HOLOGRAPHIC WILL?
hands, he can write by mouth or foot as  Yes. The additional dispositions must be
long as the writing is done by testator dated and signed by the testator. When a
himself. number of dispositions appearing in a
 No attestation required. If there is any, a holographic will are signed without being
mere surplusage. If attestation is dated, and the last disposition has a
typewritten, still surplusage because signature and a date, such date validates
attestation is strictly not part of will.

33
the dispositions preceding it, whatever be 2. Ajero vs. CA (236 SCRA 488, 1994) –
the time of prior dispositions. effect of unauthorized alterations,
cancellations, or insertions (insertions not
WHAT IF THE ADDITIONAL DISPOSITION IS authenticated by full signature of
WRITTEN BY A THIRD PERSON? testator). If made on the date, or
1. If disposition is also signed and dated by signature in a holographic will, entire will
the third person, with nor without testator‟s is void.
consent, disposition is void. It is
independent of the will because it does not WHAT IS A JOINT WILL?
have the participation of the testator in the  It is one where the same testamentary
form of his signature. Will not affect the instrument is made the will of two or more
validity of the will itself. Consider as not persons and is jointly executed and signed
written. by them. It is not necessarily mutual.
2. If signed and dated by the testator, whole  Mutual or reciprocal wills – the separate
will is void because by affixing the testator‟s wills of two persons which are reciprocal in
signature and date, the additional their provisions, giving the separate
dispositions become part of the will, not property of each testator to the other. They
independent anymore. In this case, there are executed with a common intention on
are portions of the will not written by the the part of the testators irrespective of
testator. A holographic will must be entirely whether there is a contract between them,
written, date and signed in the hand of the although the contractual element is often
testator. Relate to Article 810. involved. Also called twin will in American
law.
CAN THE TESTATOR MAKE INSERTIONS,  Mutual or reciprocal wills or twin wills may
CANCELLATIONS, ERASURES OR ALTERATIONS IN be embodied in separate instruments or in
A HOLOGRAPHIC WILL? the same instrument. If in separate
- Insertion, cancellation, erasure or alteration instruments, allowed. Give example: if in the
in a holographic will is not prohibited as same instrument, they become joint wills
long as authenticated by full signature of and are thus prohibited. In this case, they
testator. are called joint and mutual wills:
- Reason: To prevent fraud. The execution of  Joint will is subject to attack wherever and
will is a personal act of the testator so it is whenever offered as an instrument.
but natural and logical that he alone can - Reasons:
authenticate whatever correction may be 1. destroys character of will as strictly
found in the will. personal act;
- Without authentication: Gen. Rule: Will is 2. tends to convert a will into a
valid. Insertions, etc. considered as not contract;
made. 3. runs counter to the idea that wills are
- Exception: where insertions, etc. affect the essentially revocable (cannot burn,
essence of the will as when there is intent to tear, etc.);
revoke, then whole will is invalidated. 4. may subject one to undue influence
Examples: and may induce parricide if
reciprocal;
1. Kalaw vs. Relova (132 SCRA 237) – there 5. makes probate much more difficult
was only one substantial provision which in case of death of testators at
was altered by substituting the original different times.
heir with another heir. The alteration had  Exceptional circumstance when joint will
no full signature. Held: whole will void was given effect. Case: Dela Cerna vs.
because nothing remains in the will after Potot (12 SCRA 576) – a joint will was
the alteration invalidated. executed by husband and wife in favour of

34
niece. Husband died first, will was (c) By a non-resident (Filipino or alien)
erroneously probated in 1939. Judgment i. law of the place where the will
became final because no appeal was was made;
made. Upon the subsequent death of wife, ii. law of the place of domicile
another petition for probate was made as (d) By a resident (Filipino or alien)
far as the estate of wife is concerned. i. law of the place of revocation
Lower Court declared will null and void but ii. law of the place of domicile
reversed by the CA on the ground that the (Philippines)
decree of probate 1939 was conclusive on  National law has no applicability in cases of
the due execution of will. revocation
 Held: the decision in 1939 which became  The testator must have testamentary
final has conclusive effect as the last will capacity at the time of revocation
and testament of husband. Although
erroneous because joint wills are not HOW IS REVOCATION EFFECTED?
supposed to be allowed, it could no longer 1. By implication of law (Revocation by
be corrected by reason of its finality. Operation of Law)
However, that erroneous allowance should 2. By some will, codicil, or other writing
only apply with respect to the estate of the executed as provided in case of wills
husband. The finality of the 1939 decree (Revocation by a Subsequent instrument)
should not extend to the estate of the wife - Here, the new instrument must be
which was then the one under admitted to probate before it can
consideration considering that a joint will is revoke the old will.
a separate will of each testator. Upon the Express revocation – when the subsequent
wife‟s death, the joint will presented for instrument has a revocatory clause
probate must be examined and revoking the previous will.
adjudicated de novo (anew). Implied revocation – the new will or codicil
 Even if the laws of other countries is completely inconsistent with the old will.
(Argentina, Brazil, France, mexico) allow 3. By burning, tearing, cancelling or
joint wills and the will is executed in these obliterating the will with the intention of
countries, still, if it is a Filipino who executes revoking it, by the testato0r himself, or by
the same, will is still void. some other person in his presence, and by
 If foreigner executes joint wills: his express direction (Revocation by Overt
1. Abroad – if allowed in the law of place Acts)
where he resides, or in the place of his - intent must concur with overt acts
nationality, (art. 816) or in the place of - overt acts may not be limited to
execution (art. 17) then will is burning, tearing, cancelling or
considered valid in the Philippines. If one obliterating because in the case of
spouse is a Filipino, void as to Filipino, Roxas vs. Roxas 48 O.O. 2177, the court
valid as to foreigner. impliedly allowed crumpling as one of
2. In the Philippines – valid under art. 817 if the overt acts provided there is animo
executed according to the law of their revocandi.
country which allows joint wills. But may
be argued that void by reason of public WHAT IS THE DOCTRINE OF ABSOLUTE
policy that should prevail over Art. 817. REVOCATION?
WHAT LAWS GOVERN THE REVOCATION OF - a probated new will, although valid, amy
WILLS? become inoperative or ineffective due to
1) If made in the Philippines the incapacity of the heirs, devisees or
- follow Philippine laws regardless of legatees. This fact notwithstanding, the
domicile or nationality of the testator revocation of the previous will remains
2) If made outside the Philippines: effective. The reason is that the revoking will

35
is valid except that it was rendered - The re-establishment of validity by
inoperative. operation of law of a previously revoked
will.
WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE Examples:
REVOCATION? - When a valid will is impliedly revoked by
- where the act or destruction is connected a second will, and the second will is itself
to the making of a will so as to squarely revoked, the first will is revived
raise the inference that the testator meant (application of the doctrine of
the revocation of the old would depend dependent relative revocation);
upon the efficacy of the new disposition - Preterition annuls the institution of heirs.
and if for any reason, the new will intended But if the preterited heir dies ahead of
to be made as a substitute is inoperative, the testator, the institution is revived
the revocation fails and the original will is in without prejudice to the right of
full force and effect. representation.

WHAT IS THE PRINCIPLE OF INSTANTER? WHAT IS “PROBATE”?


- if a valid will is expressly revoked by a “Probate” is a special proceeding to establish
second will and the second will is itself the validity of a will.
revoked, the first will is not revived. Reason:
revocation takes effect immediately WHAT ARE THE BASIC PRINCIPLES IN PROBATE?
because it is not testamentary in character.
1. PROBATE IS MANDATORY
WHAT IS REPUBLICATION OF WILLS?
- the re-establishment by the testator of a MANINANG vs. CA (114 SCRA 478) –
previously revoked will or one invalid for because public policy requires it for unless
want of proper execution as to form or for the will is probated and notice thereof
other reasons, so as to give validity to said given to the whole world, the right of a
will. person to dispose of his property by will may
 If a will is void as to form due, to non- be rendered nugatory.
observance of formalities, the only way
to revive the will is by express VDA. DE KILAYKO vs. JUDGE TENGCO [G.R.
republication or republication by re- NO. L-45425. MARCH 27, 1992.]
execution. Meaning, the will must be Until probated, a will cannot be used or
executed anew, this time, complying given in evidence as the foundation of a
with the formalities. right or title to real or personal property.
 If a will is void but not as to form, such as Thus, the rule is that there can be no valid
when the testator had no testamentary partition among the heirs till after the will
capacity at the time it was executed, or has been probated, but this rule
the will was revoked, republication can presupposes that the properties to be
be effected by re-execution or also by partitioned are the same properties
implied republication or republication embraced in the will.
by reference. Here, there is no need to
copy the entire provisions of the old will. 2. ESTOPPEL AND PRESCRIPTION WILL NOT
Mere reference made in the new will or APPLY IN PROBATE
codicil to the existence of the old will
suffices. ALSUA-BETTS vs. CA (July 30, 1979) –
principle of estoppels is not applicable in
WHAT IS REVIVAL OF WILLS? probate proceedings.

36
IN RE ESTATE OF PILAPIL (72 Phil 545) – the MAGALLANES vs. KAYANAN (Jan. 20, 1976):
right to ask probate does not prescribe. Ownership may be passed upon in probate
when:
3. PROBATE IS LIMITED TO THE EXTRINSIC a. the parties are all heirs and they
VALIDITY OF THE WILL voluntarily submit the matter to the
court;
Matters resolved in probate (Dorotheo vs. b. the ownership is passed upon to
Court of Appeals) determine whether or not the property
1. Whether the instrument offered for involved is part of the estate
probate is the last will and testament of
the decedent – a question of identity;  As to proof of filiation:
2. Whether the will was executed 1. May be given if it is essential to
according to the formalities required by establish which of the 2 wills has
law – a question of due execution; been revoked;
3. Whether the testator had testamentary 2. To prove prima facie whether or
capacity at the time of execution – a not an oppositor or intervenor
question of testamentary capacity. who claims to be related to the
testator can be allowed to
 Hence, probate court no power to intervene in the probate
pass upon intrinsic validity or legality proceedings for the purpose of
of provisions in the will, such as: protecting his rights.
a. legacy is void;
b. invalid disinheritance;  But the final decision on these matters may
c. a certain persom has no be threshed out in another proceeding.
right to inheritance; NOT RES JUDICATA.
d. impairment of legitime;
e. filiation; DE LEON vs. COURT OF APPEALS (G.R. NO.
f. title to property. 128781, August 6, 2002)
 Exceptions:
A probate court, whether in a testate or
CAYETANO vs. LEONIDAS (May 30, 1984) intestate proceeding, can only pass upon
questions of title provisionally. The rationale
The third issue raised deals with the validity of therefore and the proper recourse of the
the provisions of the will. As a general rule, the aggrieved party are expounded in Jimenez v.
probate court‟s authority is limited only to the Court of Appeals:
extrinsic validity of the will, the due execution
thereof, the testatrix‟s testamentary capacity “The patent reason is the probate
and the compliance with the requisites or court‟s limited jurisdiction and the principle
solemnities prescribed by law. The intrinsic that questions of title or ownership, which
validity of the will normally comes only after the result in inclusion or exclusion from the
court has declared that the will has been duly inventory of the property, can only be
authenticated. However, where practical settled in a separate action.
considerations demand that the intrinsic
validity of the will be passed upon, even “All that the said court could do as
before it is probated, the court should meet regards said properties is determine
the issue. (Maninang vs. Court of Appeals, 114 whether they should or should not be
SCRA 478). included in the inventory or list of properties
to be administered by the administrator. If
there is a dispute as to the ownership, then
the opposing parties and the administrator

37
have to resort to an ordinary action for a the title thereto but such determination is not
final determination of the conflicting claims conclusive and is subject to the final decision in
of title because the probate court cannot a separate action regarding the ownership
do so.” [24] which may be instituted by the parties.

Further, in Sanchez v. Court of Appeals, In the Rodriguez case, the Court


we held: distinguished between an order of collation
and an order of exclusion from or inclusion in
“[A] probate court or one in charge of the estate‟s inventory, thus:
proceedings whether to state or intestate
cannot adjudicate or determine title to “We hold further that the dictum of the
properties claimed to be a part of the court of Appeals and the probate court
estate and which are claimed to belong to that the two disputed lots are not subject to
outside parties. All that the said court could collation was a supererogation and was
do as regards said properties is to not necessary to the disposition of the case
determined whether they should or should which merely involved the issue of inclusion
not be included in the inventory or list of in, or exclusion from, the inventory of the
properties to be administered by the testator‟s estate. The issue of collation was
administrator. If there is no dispute, well and not yet justiciable at that early stage of the
good, but if there is, then the parties, the testate proceeding. It is not necessary to
administrator, and the opposing parties mention in the order of exclusion the
have to resort to an ordinary action for a controversial matter of collation.
final determination of the conflicting claims
of title because the probate court cannot “Whether collation may exist with
do so.” [25] respect to the two lots and whether Mrs.
Rustia‟s Torrens titles thereto are
Guided by the above jurisprudence, it is indefeasible are matters that may be raised
clear that the Court of Appeals committed an later or may not be raised at all. How those
error in considering the assailed Order dated issues should be resolved, if and when they
November 11, 1994 as final or binding upon the are raised, need not be touched upon in
heirs or third persons who dispute the inclusion the adjudication of this appeal.
of certain properties in the intestate estate of
the deceased Rafael Nicolas. Under the 4. PROBATE IS A PROCEEDING IN REM
foregoing rulings of the Court, many aggrieved
party, or a third person for that matter, may ATILANO MERCADO VS. SANTOS (66 Phil
bring an ordinary action for a final 216) – probate proceeding is a proceeding
determination of the conflicting claims. For all in rem. The judgement of the court is
intents and purposes, said Order is a mere binding upon everybody even against the
order including the subject properties in the State.
inventory of the estate of the decedent.
5. PROBATE IS CONCLUSIVE AS TO THE DUE
The Court held in Valero Vda. De Rodriguez EXECUTION OF WILLS
v. Court of Appeals that the order of exclusion
(or inclusion) is not a final order; that it is  Due execution of will and testamentary
interlocutory in the sense that it did not settle capacioy of testator acquire the
once and for all the title to the subject lots; character of res judicata.
that the prevailing rule is that for the purpose
of determining whether a certain property ATILANO MERCADO vs. SANTOS (66 Phil
should or should not be included in the 216) – After final judgment on the
inventory, the probate court may pass upon probate, proponent was prosecuted for

38
allegedly having presented a forged petition for probate, shall inherit all the
will. The case for forgery could not properties left by the decedent. Nonetheless,
propsper because judgment on her petition for probate, shall inherit all the
probate was conclusive as to the due properties left by the decedent. Nonetheless,
execution of the will. on August 28, 1967, the court disallowed the
will, holding that the legal requirements for its
WHO MAY INTERVENE IN PROBATE validity were not satisfied as only two witnesses
PROCEEDINGS? testified that the will and the testatrix‟s
signature were in the handwriting of Maxima
- in order that a person may be allowed Reselva. The petitioner appealed contending
to intervene in a probate proceeding, that by virtue of his contract of services with
he must have an interest in the estate or Del Rosario, he is a creditor of the latter, and
in he will, or in the property to be that under Article 1052 of the Civil Code he has
affected by it. Must be an interested a right to accept for his client Del Rosario to
party or one who would be benefitted the extent of 35% thereof the devise in her
by the estate such as an heir or one favor (which she in effect repudiated) to
who has a claim against the estate like protect his contingent attorney‟s fees.
a creditor, and whose interest is material
and direct not merely incidental or The argument is devoid of merit. Article 1052 of
contingent. the Civil Code does not apply to this case. That
legal provision protects the creditor of a
LEVISTE vs. COURT OF APPEALS (G.R. NO. repudiating heir. Petitioner is not a creditor of
L-29184 JANUARY 30, 1989) Rosa del Rosario. The payment of his fees is
contingent and dependent upon the
The petitioner, a practicing attorney, successful probate of the holographic will.
entered into a written agreement with Since the petition for probate was dismissed by
Rosa del Rosario to appear as her the lower court, the contingency did not
counsel in a petition for probate of the occur. Attorney Leviste is not entitled to his fee.
holographic will of the late Maxima C. Furthermore, Article 1052 presupposes that the
Reselva. Under the will, a piece of real obligor is an heir. Rosa Del Rosario is not a legal
property was bequeathed to Del heir of the late Maxima C. Reselva. Upon the
Rosario. It was agreed that petitioner‟s dismissal of her petition for probate of the
contingent fee would be thirty-five per decedent‟s will, she lost her right to inherit any
cent (35%) of the property that Rosa part of the latter‟s estate. There is nothing for
may receive upon the probate of the the petitioner to accept in her name. Petitioner
will. On August 20, 1965, Leviste was not a party to the probate proceeding in
received a letter from Ms. Del Rosario, the lower court. He had no direct interest in the
informing him that she was terminating probate of the will. His only interest in the
his services as her counsel due to estate is an indirect interest as former counsel
“conflicting interest.” On September 20, for a prospective heir. In Paras v. Narciso, 35
1965, petitioner filed a “Motion to Phil. 244, one who is only indirectly interested in
Intervene to protect His Rights to Fees a will may not interfere in its probate. Thus:
for Professional Service.” “… the reason for the rule excluding strangers
from contesting the will, is not that thereby the
On November 23, 1966, Del Rosario and Rita court maybe prevented from learning facts
Banu, the special administratrix-legatee, filed a which would justify or necessitate a denial of
“Motion to Withdraw Petition for Probate” probate, but rather that the courts and the
alleging that Del Rosario waived her rights to litigants should not be molested by the
the devise in her favor and agreed that the De intervention in the proceedings of persons with
Guzman brothers and sisters, who opposed her no interest in the estate which would entitle

39
them to be heard with relation thereto Paras v. A. Word “shall” connotes an imperative
Narciso, 35 Phil. 244, 246.” obligation and is inconsistent with the idea of
discretion.
Who will testify During Probate?
B. To prevent the possibility that unscrupulous
-Rule 76, Rules of Court individuals who, for their benefit, will employ
means to defeat the wishes of the testator.
Notarial Will Holographic Will Since the possibility of a false document being
adjudged as the will cannot be eliminated, if
Uncontested -testimony of one the will is contested, at least 3 of the required
witness who knows witnesses should declare that the holographic
-testimony of one the signature and will is in the handwriting and signature of
subscribing witness handwriting of testator.
testator expert
Contested testimony may be Can the will be probated in the absence of a
resorted to. copy presented in Court?
-all the subscribing
witnesses and the -at least 3 who knows In case of notarial wills: YES. Even if there is no
notary public must signature and copy of the will, the will may still be probated if
testify handwriting its contents are clearly and distinctly proved by
at least 2 credible witnesses.
-If insane, dead, -expert testimony
absent in the In case of holographic wills: NO! In holographic
Philippines, testify wills, there is no guaranty of the truth and
against due veracity of the will from the mere testimony of
execution, do not witnesses because these witnesses are not
remember having present during the execution of the will. The
attested, or of law regards the document itself as material
doubtful credibility, proof of authenticity, and as its own safeguard,
testimony of other since, from the document itself, it could be
witnesses may be demonstrated whether or not it is in the hands
allowed. of the testator himself. Witnesses may be
mistaken in their opinion as to the handwriting
Is it Mandatory to Present the 3 Witnesses
of the testator or they may deliberately lie.
Mentioned if the Holographic Will is Contested?
Oppositors may present contradictory
evidence, such as testimonies of other expert
In the case of Azaola v. Singson not
witnesses or other witnesses who know the
mandatory because no witnesses are required
handwriting and signature of the testator, or
during execution of holographic wills, hence, it
writings or letters in the handwriting and
is obvious that the existence of witnesses
signature of the testator. In view of such
possessing the requisite qualification is a matter
contradictory evidence, the court may use its
beyond the control of the proponent of will.
own visual sense and decide in the face of the
Mandatory only in notarial wills because at
document, whether it has indeed been written
least 3 witnesses are required during the
by the testator.
execution of will.
Thus, if the will is holographic, there must at
BUT in the case of Codoy v. Caluga, 312 SCRA
least be a copy. Otherwise, the will cannot be
333, 1999, 3 witnesses are mandatory in
admitted to probate.
contested holographic will. Reasons:
Rodelas v. Aranza, 119 SCRA 16

40
Photostatic copy of the holographic will may written in English and consisting of 2 pages,
be probated. Carbon copy also allowed. and dated June 15, 1983 but acknowledged
only on august 9, 1983. The first page contains
What are the Grounds for Disallowance of the entire testamentary dispositions and a part
Wills? of the attestation clause, and was signed at
the end or bottom of that page by the testator
Article 839. The will shall be disallowed in any of and on the left hand margin by the three
the following cases: instrumental witnesses. The second page
contains the continuation of the attestation
(1) If the formalities required by law have not clause and the acknowledgement, and was
been complied with (Arts. 804-809); signed by the witnesses at the end of the
attestation clause and again on the left hand
(2) If the testator was insane, or otherwise
margin. It provides in the body that: 2. I give,
mentally incapable of making a will, at the
devise and bequeath unto my loving wife,
time of its execution;
JOSEFINA C. VALMONTE, one half portion of
the follow-described properties, which belongs
(3) If it was executed through force or under
to me as [co-owner]; 3. All the rest, residue and
duress, or the influence of fear, or threats (Arts.
remainder of my real and personal properties,
1334 and 1335);
including my savings account bank book in
(4) If it was procured by undue and improper USA which is in the possession of my nephew,
pressure and influence, on the part of the and all others whatsoever and wherever
beneficiary or of some other person; found, I give, devise and bequeath to my said
wife, Josefina C. Valmonte; 4. I hereby appoint
(5) If the signature of the testator was procured my wife, Josefina C. Valmonte as sole executrix
by fraud (must refer to the nature of the of my last will and testament and it is my will
instrument or its contents); that said executrix be exempt from filing a
bond;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be The allowance to probate of this will was
his will at the time of affixing his signature opposed by Leticia on the grounds that:
thereto.
1. Petitioner failed to allege all assets of the
Add: If the will was expressly revoked. testator, especially those found in the USA

- The grounds are exclusive. No other 2. Petitioner failed to state the names, ages,
grounds can serve to disallow will. and residences of the heirs of the testator; or to
give them proper notice pursuant to law;
Ortega v. Valmonte, G.R. No. 157451,
December 16, 2005 3. Will was not executed and attested as
required by law and legal solemnities and
In 1980, Placido finally came home to stay in formalities were not complied with;
the Philippines, and he lived in the house and
lot which he owned in common with his sister 4. Testator was mentally incapable to make a
Ciriaca Valmonte and titled in their names in will at the time of the alleged execution he
TCT 123468. Two years after his arrival from the being in an advance state of senility;
United States and at the age of 80 he wed
Josefina who was then 28 years old, in a 5. Will was executed under duress, or the
ceremony solemnized by Judge Perfecto influence of fear or threats;
Laguio, Jr. On February 5, 1982, Placido
executed a notarial last will and testament

41
6. Will was procured by undue and improper will only upon a showing of credible evidence
influence and pressure on the part of the of fraud. Unfortunately in this case, other than
petitioner and/or her agents and/or assistants; the self-serving allegations of petitioner, no
and/or evidence of fraud was ever presented.

7. Signature of testator was procured by fraud; It is a settled doctrine that the omission of some
or trick and he did not intend that the relatives does not affect the due execution of
instrument should be his will at the time of a will. That the testator was tricked into signing
affixing his signature thereto; it was not sufficiently established by the fact
that he had instituted his wife, who was more
HELD: Petitioner does not dispute the due than fifty years his junior, as the sole
observance of the formalities in the execution beneficiary; and disregarded petitioner and
of the will, but maintains that the her family, who were the ones who had taken
circumstances surrounding it are indicative of the cudgels of taking care of the testator in his
the existence of fraud. Particularly, she alleges twilight years.”
that respondent, who is the testator‟s wife and
sole beneficiary, conspired with the notary Moreover, as correctly ruled by the appellate
public and the three attesting witnesses in court, the conflict between the dates
deceiving Placido to sign it. Deception is appearing on the will does not invalidate the
allegedly reflected in the varying dates of the document, “because the law does not even
execution and the attestation of the will. require that a notarial will xxx be executed and
acknowledged on the same occasion.” More
Petitioner contends that it was highly dubious important, the will must be subscribed by the
for a woman at the prime of her young life to testator, as well as by three or more credible
almost immediately plunge into marriage with witnesses who must also attest to it in the
a man who was thrice her agexxx and who presence of the testator and of one another.
happened to be a Fil-American pensionado,” Furthermore, the testator and the witnesses
thus casting doubt on the intention of must acknowledge the will before a notary
respondent in seeking the probate of the will. public. In any event, we agree with the CA
Moreover, it supposedly “defies human reason, that “the variance in the dates of the will as to
logic and common experience,” for an old its supposed execution and attestation was
man with a severe psychological condition to satisfactorily and persuasively explained by the
have willingly signed a last will and testament. notary public and the instrumental witnesses.”

SC ruled: We are not convinced. Fraud “is a Notably, petitioner failed to substantiate her
trick, secret device, false statement or claim of a “grand conspiracy” in the
pretense by which the subject of it is cheated. commission of a fraud. There was no showing
It may be of such character that the testator is that the witnesses of the proponent stood to
misled or deceived as to the nature or receive any benefit from the allowance of the
contents of the document which he executes will. The testimonies of the three subscribing
or it may relate to some extrinsic fact, in witnesses and the notary are credible
consequence of the deception regarding evidence of its due execution. Their testimony
which the testator is led to make a certain favouring it and the finding that it was
willwhich,but for the fraud, he would not have executed in accordance with the formalities
made. required by law should be affirmed, absent
any showing of ill motives.
We stress that the party challenging the will
bears the burden of proving the existence of What is “Institution of Heir”?
fraud at the time of its execution. The burden
to show otherwise shifts to the proponent of the

42
-It is an act by virtue of which a Nable v. Unson, 27 Phil. 73
testatordesignates in his will the person or
persons who are to succeed him in his property Testator left property to her husband and after
and transmissible rights and obligations. her husband dies, to her sisters and nieces,
such as
What are the characteristics of an instituted
Heir? A (deceased) – 2 daughters

1. Testamentary heir as distinguished from legal B (deceased) – 3 daughters


or intestate heir. Different from devisee or
legatee. C (alive) - widow

2. Continues the personality of testator but only D (alive) – no children


in relation to inheritance without being
personally liable for the debts of the testator. E (alive) – no children

3. A natural person even if only a conceived F (alive) – no children


child (as long as conditions under Art. 40 and
Lower court divided into 6 parts based on the
41 are present). But dispositions may be made
number of sisters. SC said should be divided
in favor of juridical persons;
into 9 parts because under Art. 847, those
4. Acquires rights limited to the disposable collectively designated are deemed
portion and cannot impair the legitimes, individually instituted.
institution being a voluntary act, cannot be
- If the intention of the testator was to
allowed to affect the legitimes.
collectively institute, he must express this
5. Presumed to have been instituted equally clearly in the will. This intention cannot
with the others unless a contrary intention be proven by evidence outside of the
appears. will.

What are the Requisites for a Valid Institution? - This article, being one of institution,
should only be applied to the free
1. The will must be extrinsically valid; portion. Eg. Institutes his 2 children A and
B and the 3 Children of X as heir to the
2. The institution must be intrinsically valid (no estate worth 100,000. Answer: Get first
impairment of legitimes, heir must be certain or the legitimes of A and B which is 50,000
ascertainable,no preterition, etc.); each and the remaining 50,000 shall be
divided equally among the 5.
3. The institution must be effective (no
predecease, repudiation, incapacity of heir) - In institution in favor of brothers and
sisters of full blood and others of half
What is the principle of individuality? blood, the inheritance shall be
distributed equally unless a different
-It is when the testator institutes some heirs intention appears.
individually and others collectively as when he
says, “I designate as my heirs A and B, and the - Note: this is not the case in legal or
children of C,” those collectively designated intestate succession because those of
shall be considered as individually institute, the full blood get twice as much as
unless it clearly appears that the intention of those of the half blood. Reason: there is
the testator was otherwise. no will which will show the intention of

43
the testator that he intended to give What is the omission that results in Preterition?
equal shares.
1. The person is not an heir, not a devisee, not
 Principle of Simultaneity – when the a legatee, thus, receives nothing by will Aznar
testator calls to the succession a person v. Duncan 17 SCRA 590
and his children they are all deemd to
have been instituted simultaneouslyand 2. No donation inter vivos was given to him
not successively.
3. There is nothing which could be inherited by
What is the effect of the statement of a false intestacy because the whole estate was
cause in the institution? distributed by will;

 General Rule: Statement of a false 4. There is no prior delivery of presumptive


cause for the institution of heir shall not legitime.
vitiate the institution. False cause shall
be considered only as not written. Note: The omission may be intentional or
Reason: cause or consideration not unintentional.
essential to institution. Real cause is the
liberality or generosity of testator. What is the effect of Preterition?

 Unlike in Revocation where false cause - The institution of heirs is annulled. Hence,
makes the revocation invalid distribute the estate in accordance with
the rules on legal succession. But the
 In illegal cause, as long as there is devises and legacies shall be valid
another reason for the institution other insofar as they are not inofficious. If the
than the illegal cause and this reason omitted compulsory heirs should die
need not be stated in the will, institution before the testator, the institution shall
is valid. be effectual, without prejudice to the
right or representation
What is Preterition?
JLT Agro Inc. v. Antonio Balansag, G.R. No.
- It is the omission of one, some or all of 141882, March 11, 2005
the compulsory heirs in the direct line,
whether living at the time of the Emerging as the crucial question in this case is
execution of the will or born after the Whether Don Julian had validly transferred
death of the testator, which as a ownership of the subject lot during his lifetime.
consequence, shall annul the institution The lower court ruled that he had done so
of heir; but the devises and legacies through the Supplemental Deed. The
shall be valid insofar as they are not appellate court disagreed, holding that the
inofficious. Supplemental Deed is not valid, containing as
it does a prohibited preterition of Don Julian‟s
Who can be Preterited? heirs from the second marriage. Petitioner
contends that the ruling of the Court of
- Compulsory heirs who are in the direct Appeals is erroneous.
line, specifically ascendants and
descendants, ad infinitum, and HELD: The contention of the Petitioner is well-
adopted children. The spouse cannot founded. Manresa defines preterition as the
claim preterition because she is not a omission of the heir in the will, either by not
relative in the direct line Acain v. IAC, naming him at all or, while mentioning him as
155 SCRA 100. father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor

44
assigning to him some part of the properties. It reiterated that the probate proceedings
is the total omission of a compulsory heir in the should take precedence. The document that
direct line from inheritance. It consists in the petitioners refer to as Segundo‟s holographic
silence of the testator with regard to a will is quoted, as follows:
compulsory heir, omitting him in the testament,
either by not mentioning him at all, or by not Kasulatan sa pag-aalis ng mana
giving him anything in the hereditary property
but without expressly disinheriting him, even if Tantunin ng sinuman:
he is mentioned in the will in the latter case. But
there is no preterition where the testator Ako si Segundo Seangio Filipino
allotted to a descendant a share less than the may asawa naninirahan sa 465-A Flores
legitimes, since there was no total omission of a St., Ermita, Manila at nagtataglay ng
forced heir. maliwanag na pag-iisip at disposisyon
ay tahasan at hayagang inaalisan ko
In the case at bar, Don Julian did not execute ng lahat at anuman mana ang
a will since what he resorted to was a partition panganay kong anak na si Alfredo
intervivos of his properties, as evidenced by the Seangio dahil siya ay nang lapastangan
court approved Compromise Agreement. Thus, sa akin at isang beses siyang nagsalita
it is premature if not irrelevant to speak of ng masama sa harapan ko at mga
preterition prior to the death of Don Julian in kapatid niya na si Virginia Seangio labis
the absence of a will depriving a legal heir of kong kinasama ng loob at ssabe rin ni
his legitimes. Besides, there are other properties Alfredo sa akin na ako nasa ibabaw
which the heirs from the second marriage ngayon ngunit darating ang araw na
could inherit from Don Julian upon his death. A ako nasa ilaim siya at siya nasa ibabaw.
couple of provisions in the Compromise
Agreement are indicative of Don Julian‟s Labis kong kong ikinasama ng
desire along this line. Hence, the total omission loob ang pag gamit ni Alfredo ng aking
from inheritance of Don Julian‟s heirs from the pangalan para makapangutang ng
second marriage, a requirement for preterition kuwarta siya at kanya asawa na si
to exist, is hardly imaginable as it is unfounded. Merna de Los Reyes sa China Banking
Corporation na million pesos at hindi
Seangio v. Reyes, G.R. Nos. 140371-72, nagbabayad ito ay nagdulot sa aking
November 27, 2006 ng malaking kahihiyan sa mga may-ari
at stockholders ng China Banking.
On September 21, 1988, private respondents
filed a petition for the settlement of the At ikinagalit ko pa rin ang
intestate estate of the late Segundo Seangio. pagkuha ni Alfredo at ng kanyang
Petitioners Dy Yieng, Barbara and Virginia, all asawa na mga customer ng Travel
surnamed Seangio, opposed the petition and Center of the Philippines na
contended among others that: Segundo left a pinangangasiwaan ko at ng anak ko na
holographic will, dated September 20, 1995, si Virginia.
disinheriting one of the private respondents,
Alfredo Seangio, for cause. In view of the Dito ako nagalit din kaya gayon
purported holographic will, petitioners averred ayoko na bilangin si Alfredo ng anak ko
that in the event the decedent is found to hav at hayanan kong inaalisan ng lahat at
left a will, the intestate proceedings are to be anoman mana na si Alfredo at si Aflredo
automatically suspended and replaced by the Seangio ay hindi ko siya anak at hindi
proceedings for the probate of the will. A siya makoha mana.
petition for the probate of the holographic will
of Segundo was filed by petitioners. They

45
Private respondents moved for the dismissal of - Types of Substitution
the probate proceedings primarily on the
ground that the document purporting to be A. Simple substitution (direct substitution),
the holographic will of Segundo does not which may be:
contain any disposition of the estate of the
deceased and thus does not meet the 1. Vulgar – the testator may designate one
definition of a will under Article 783 of the Civil or more persons to substitute the heir or
Code. According to private respondents, the heirs instituted in case such heir or heirs
will only shows an alleged act of disinheritance should die before him, or should not wish, or
by the decedent of his eldest son, Alfredo, and should be incapacitated to accept the
nothing else; that all other compulsory heirs inheritance.
were not named nor instituted as heir, devisee
or legatee, hence, there is preterition which 2. Brief – two or more persons may be
would result to intestacy. Such being the case, substituted for one
private respondents maintained that while
3. Compendious – one substitute for two or
procedurally the court is called upon to rule
more heirs.
only on the extrinsic validity of the will, it is not
barred from delving into the intrinsic validity of
4. Reciprocal – the instituted heirs are also
the same, and ordering the dismissal of the
the substitutes of each other.
petition for probate when on the face of the
will it is clear that it contains no testamentary B. Fideicommissary (indirect substitution) –
disposition of the property of the decedent. the fiduciary or first heir instituted is
entrusted with the obligation to preserve
Held: With regard to the issue on preterition,
and to transmit to a second heir the whole
the Court believes that the compulsory heirs in
or part of the inheritance, shall be valid and
the direct line were not preterited in the will. It
shall take effect, provided such substitution
was, in the Court‟s opinion, Segundo‟s last
does not go beyond one degree from the
expression to bequeath his estate to all his
heir originally instituted, and provided
compulsory heirs, with the sole exception of
further; that the fiduciary or first heir and the
Alfredo. Also, Segundo did not institute an heir
second heir are living at the time of the
to the exclusion of his other compulsory heirs.
death of the testator.
The mere mention of the name of one of the
petitioners, Virginia, in the document did not What are the kinds of institution of Heirs?
operate to institute her as the universal heir.
Her name was included plainly as a witness to 1. Simple or pure -= not subject to
the altercation between Segundo and his son, any condition, term or burden
Alfredo. Considering that the questioned
document is Segundo‟s holographic will, and 2. Conditional – (Arts. 871-877,
that the law favors testacy over intestacy, the 883-884)
probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no 3. With a term - (Arts. 878, 880-
will shall pass either real or personal property 881)
unless it is proved and allowed in accordance
with the rules of Court. Thus, unless the will is 4. Modal – (Arts. 882-883)
probated, the right of a person to dispose of
his property may be rendered nugatory. What is the rule with respect to impossible
conditions?

What are the types of Substitution of Heirs?

46
- The impossibility may be relative or The exception is justified by sentimental
absolute and either will result in the considerations whereby the entry within the
deletion of the condition. family of a person who takes the place of the
Effect if impossible condition is attached to an deceased spouse in the family and in the
obligationo or contract: Both the condition enjoyment fo fthe property which originated
and the obligation/contract are void (Art. 1183 from said deceased spouse through a
NCC) subsequent marriage wiht the surviving spouse,
is avoided.
Reason: In Succession, condition is merely a
mere accessory, not a consideration because WHAT IS A DISPOSICION CAPTATORIA?
the real consideration is the generosity or
liberality of testator. In obligations, the Any disposition made upon the condition that
consideration is no longer liberality. The the heir shall make some provision in his will in
condition becomes part of the consideration favor of the testator or of any other person
thus, the impossibility of teh concition goes into shall be void.
the considertaiton of the contract.
 The two dispositions must appear in
MICIANO vs. BRIMO (50 PHIL 867) the will
Facts: The institution of the legatees in the will is  Void because they make
subject to the condition that the legatees successional rights contractual
must respect the testator‟s will to distribute his
property not in accordance witht he lawas of WHAT IS THE RULE WITH RESPECT TO TA
his nationality bu the laws of the Philippines. NEGATIVE POTESTATIVE CONDITION?
- If the potestative condition imposed
Held: Condition is void being contrary to law upon the heir is negative, or consists in
because it expressly ignores the testator‟s not doing or not giving somthing, the
national law when, according to Art. 16 NCC heir acquires the right from the moment
such national law of the testator is the one to of death but heir is just required to
govern his testamentary dispositions. Said furnish bond or security (Caucion
condition is considered not written and the muciana) that he will not fo or not give
institution of the legatees is valid and effective. that which the testator prohibits.

IS A CONDITION NOT TO MARRY/REMARRY WHAT IS MODAL INTITUION?


VALID? -this is an institution with a statement on:
1. object of the institution
Gen. Rule: An absolute condition not to 2. application of the property
contract a first or subsequent marriage shall be 3. Imposition of charge
considered as not written
Exception: If such condition has been imposed COMPARE AND CONTRAST MODE AND
on the widow or widowed by the deceased CONDITION?
spouse or by the latter‟s ascendants or
descendants. Similarities : In both modes and condition
(negative potestative)
Rationale: It might result to immoral
consequences where a person who wants to 1. There is a security requirement;
marry but is prohibited from doing so will end 2. There is a forfeiture provision ina return
up having an adulterous relationship. Also, it of principal and fruits
has the effect of depriving a person of his
inherent right to choose his own status. Differences:

47
1. Mode does not suspend the efficacy of be not respected Belleza shall
the rights to the succession while a immediately seize the lot and turn it over
condition suspends such efficacy to the testarix near descendants.
2. Mode is obligation except when it is for
the exclusive benefit of the person HELD:
concerned while a condition is never Not a case of simple substitution. In simple
obligatory; substitutions, the second heir takes the
3. The demandability or extinction of a inheritance in default of the first heir by reason
right depends on the fulfillment of the of incapacity, predecease or renunciation. The
condition whereas in a mode, the right Codicil fo not provide that should Dr. Rebadilla
given is immediately demandable default due to predecease, incapacity or
although subordinate to the subsequent renunciation, the testatrix‟s near descendants
fulfillment of the obligation expressed in would substitute him. What the Codicil
the testamentary disposition. provides is that, should Dr. Jorge Rabadilla or
his heirs not fulfill the conditions imposed int he
Rules of interpretation: Codicil, the property referred to shall be
1. When there is doubt if it is a mode or seizeddddd and turned over to the testanix‟s
condition: construed as modal near descendants.
following the principle that
testamentary dispositions are acts of Neither is there a fideicommissary substitution.
liberality. In a fideicommissary substitution, the first heir is
2. When there is doubt as to the existence strictly mandated to preserve the propert and
of a modal institution: not considered as to transmit the same later to the second their.
a mode but merely as a suggestion or Here, the instituted heir is in fact allowed under
discussion which the heit may or may the Codicil to alienate the property provided
not follow, in keeping wit the nature of the negotiation is wih the near descendants or
testamentary dispositions as acts of the sister of teh testatrix. Thus, a very important
liberality. For a statement to be element of a fideicommissary substitution is
considered as a mode, it must have lacking, the obligation clearly imposing upon
coercive or obligatory force. the first heir, the preservation of the property
and its transmission to the second heir. Also,
RABADILLA vs. CA (JUNE 29, 2000) the near descendants‟ right to inherit from the
testatrix is not definite. The property will only
In the Codicil of testatrix, Dr. Rabadilla was pass to them should Dr. Rabadilla of his heirs
instituted as a devisee of Lot No. 1392 not fulfill the obligation to deliver part of the
contained the following provisions among usufruct to private respondent. Moreover,
others: fideicommissary substitution is void if the first
heir is not related by first degree to the second
1. Rabadilla shall have the obligation until heir. In the case under scrutiny, the near
he dies, every year to give to Belleza descendants are not all related to the
100 piculs of sugar until Belleza dies; instituted heir, Dr. Rabadilla.
2. Should Rabadilla die, his heir to whom
he shall give Lot No. 1392 shall have the Not a conditional institution. It is clear that the
obligation to still give yearly, the sugar testatrix intended that the lot be inherited by
as specified to Belleza. Dr. Rabadilla. It is likewise clearly worded that
3. In the event that the lot is sold, leased, the testatrix imposed an obligation on the said
or mortgaged, the buyer, lessee, instituted heir and his successors-in-interest to
mortgagee shall have also the deliver sugar to Belleza, during the lifetime of
obligation to respect and deliver yearly the latter. However, the testatrix did not make
sugar to Belleza. Should the command Dr. Rabadilla‟s inheritance and the effectivity

48
of his institution as a devisee, dependent on ILANO vs. CA (G.R. No. 104376 February 23,
the performance of the said obligation. It is 1994)
clear though that should the obligation be not
compiled wiht the property shall be turned In this regard, Article 287 of the Civil Code
over to the testatrix near descendants. Since provides that illegitimate children other than
testamentary dispositions are generally acts of natural in accordance wih Article 269 and
liberality an obligation imposed upon the heir other than natural children by legal fiction are
should not be considered a condition unless it entitled to support and such successional rights
clearly appears from the Will itself that such as are granted in the Civil Code. The Civil
was the intention of the testator. In case of Code has given these rights to them because
doubt, the institution should be considered as the transgressions of social conventions
modal anot conditional. committed by the parents should not be visited
upon them. They were born wiht a social
The manner of institution of Dr. Rabadilla is handicap and the law should help them to
modal in nature because it imposes a charge surmount the disadvantages facing them
upon the instituted heir without, however, through the misdeeds of their parents.
affecting the efficacy of such institution. A However, before Article 287 can be availed of,
“mode” imposes an obligation upon the heirrrrr there must be a recognition of paternity either
or legatee but it does not affect the efficacy voluntarily or by court action. This arises from
of his rights to the succession. On the other the legal principle that an unrecognized
hand, in a conditional testamentary spurious child like a natural child has no rights
disposition, the condition must happen or be from his parents of to their estate because his
fulfilled in order for the heir to be entitled to rights spring not from the filiation or blood
succeed the testator. The condition suspends relationship but from his acknowledgement by
but does not obligate; and the mode obligates t he parent. In other words, the rights of an
but does not suspend. To some extent, it is illegitimate child arose not because he was the
similar to a resolutary condition. true or rel child of his parents but because
under the law, he had been recognized or
WHAT IS LEGITIME? acknowledged as such as child.
 Legitime is tha part of the testator‟s
property which he cannot dispose of WHAT ARE THE LEGITIMES OF THE COMPULSORY
because the law has reserved it for HEIRS?
certain heirs who are therefore
called compulsory heirs. Legitimate Child 2 or more legitimate
Alone – ½ children – ½
WHO ARE THE COMPULSORY HEIRS? Surviving spouse –
same as the shares of
1. Legitime children and descendents with 1 legitimate child
respect to their legitimate parets and Parents Alone – ½ Illegitimate Children –
ascendants; 1/3
2. In default of the foregoing, legitimate Surviving Spouse – 1/3
parents and ascendants with respect to Surviving Spouse Legitimate parents – ½
their legitimate children and Alone – ½, 1/3, ½ Surviving Spouse – ¼
descendants; Illegitimate Child Illegitimate Children –
3. The widow or widower; alone – ½ ¼
4. Illegitimate children Surviving Spouse – 1/8
Legitimate Parents – ½
In all cases of illegitimate children, their filiation 1 Legitimate Child – ½ Illegitimate Parents –
must be duly proved. Surviving Spouse – ¼ ¼

49
Surviving Spouse – ¼ -The absolute owner of the property
subject to the resolutory condition of
existence of the 3rd degree relatives of
CAN THE LEGITIME BE BURDENED? the prepositus upon the reservor‟s
Gen. Rule: No burden, condition, charge, death.
encumbrance imposed upon the legitime.
4. Reservees (Reservista)
Exceptions: - Belonging to the same line of the family
as that of the origin
a. Reserva Troncal – The legitime is subject - Related to the prepositus in the 1st, 2nd
to reservation in favor of the reservees and 3rd degrees
b. Partition – The testator may prohibit
partition of the property for a period not SIENES vs. ESPARCIA (1 SCRA 750)
exceeding 20 years even if the property The Supreme Court upheld the validity of
contitutes the legitime of the heirs. thte simultanous sales made by both the
reservor and the reservees to two different
WHAT IS RESERVA TRONCAL? buyers. The reservor may alienale the
The process by which an ascendant reservable property subject to as resolutory
who inherits by operation of law from his condition – his death- by virtue of which the
descendant whichthe latter may have property shall be transferred to relatives of
acquired by gratuitous title from another the prepositus within the third degree
ascendant or a brother or sister, is obliged by (reservees). In effect, there is a double
law to reserve such property for the benefit of resolutory condition – (1) death of the
third degree relatives who belong tot he line reservoir and (2) the survival of the
from whic the property came from: reservees upon the death of the reservor.

Purpose: to prevent the accidental transfer of CHUA vs. CFI (78 SCRA 414)
property/wealth from one line to another line. During the intestate proceedings, the court
issued an order imposing upon the heir the
WHO ARE THE PARTIES IN RESERVA TRONCAL? obligation of paying Standard Oil Co. the
amount of P3,971.20. Hence, it is
1. Origin contended that the property in question
-The person from whom the reservable was not acquired gratuitously but for a
property comes from consideration, thereby departing from the
-Either an ascendant or (half) brother or requisite that the property, in order to
sister of the prepositus reservable, must have been acquired by
gratuitous title by the prepositus.
2. Prepositus
-Person to whom the origin transfers the Held: The transmission of property is
property gratuitously gratuitous when the recipient does not give
-The arbiter of the reserva because the anything in return. In matters not when the
prepositus may alienate or destroy the whether the property transmitted be or be
property and thus prevent the existence not subject to any prior charges, what is
of the reserve essential is that the transmission is made by
the deceased himself gratuitously or by an
3. Reservor (Reservatario) act of mere liberality on the part of teh
-Ascendant of the prepositus person making it, without imposing any
- The transfer to the reservoir must be by obligation on the part of the recipient. The
operatoin of law either as legitimate or transmission of the property in question wa
by intestatcy. by means of hereditary succession and

50
therefore gratuitous. The obligation to pay heirs of his shares in the legitimate for a
Standard Oil was not imposed by the cause authorized by law. Disinheritance
ascendant but by order of the court. is always “voluntary”, preterition upon
the other hand , is presumed to be
WHAT IS THE DELAYED INTESTACY THEORY? “involuntary”
-When the resolutory condition of the
reserva is fulfilled, the properties are The effects of the preterition and disinheritance
distributed to the reservees as if they are are also totally different:
inheriting from the prepositus at the time of ..... Preterition under Article 854 of the New Civil
fulfillment of the condition. Since there is no Code shall annul the institution of heir. This
will, then the reserves inherit by virtue of annulment is in toto, unless in the wait there
intestate succession, the descendant being are, in addition, testamentary dispositions in
th propositus, thus the name Delayed the form of devises or legacies. In ineffective
Intestacy. disinheritance under Article 918 of the same
Code, such disinheritance shall also “annul the
WHAT IS DISINHERITANCE? institution of heirs”, but only “insofar as it may
- The manner by which a compulsory heir prejudice the person disinherited” which last
is deprived of his legitimate, for causes phrase was ommitted in the case of preterition.
expressly stated by law. Better stated yet, disinheritance the nullity is
limited to that portion of the estate of which
WHAT ARE THE REQUISITES FOR A VALID the disinherited heirs have been illegaly
DISINHERITANCE? deprived.

1. It should be embodied in a VALID PECSON vs. MEDIAVILLO (G.R. No. 7890,


WILL September 29, 1914)
2. It must be made EXPRESSLY Paragraph 3 of the will disinherited Rosario in
3. It should be for a LEGAL CAUSE the language:
4. It should be for a TRUE CAUSE
5. It should be for an EXISTING CAUSE I declare that one of my daugthers, named
6. It should be TOTAL OR COMPLETE Teresa, now deceased, left a legitimate
7. It should be STATED IN THE WILL daughter named Rosario Mediavillo. I also
8. The heir should be IDENTIFIED declare that i disinherit my granddaughter, the
9. The will must not have been said Rosario Mediavillo, because she was
REVOKED grossly disrespectful to me and because on
one occasion, when it was I do not remember,
Grounds : Arts. 919 (child or descendant), 920 she raised her hand against me. Therefore, it is
(parent or ascendant), 921 (spouse) my will that the said Rosario Mediavillo shall
have no share in my property. Rosario alleges
MANINANG vs. CA (G.R. NO. L-57848 JUNE 19, that she was disinherited without a cause.
1982)
Preterition and disinheritance are two diverse Disinheritance shall only take place for one of
concepts the causes expressly fixed by law. Article 849 of
- Preterition “consists in the omission in the the Civil Code provides that the disinheritance
testator‟s will of the forced heirs or can only be effected by the testament, in
anyone of them, either because they which shall be mentioned the legal grounds or
are not mentioned therein, or though causes for such disinheritance. The rights of the
mentioned, they are neither instituted as courts to inquire into the causes and whether
heirs nor are expressly disinherited. there was sufficient cause for the
Disinheritance in tuen “is a testamentary disinheritance or not is supported by express
disposition depriving any compulsory provisions fo the Civil Code. It appears from

51
the record that when Rosario Mediavillo was testator expressly declares that he
about 14 years of age, she had received some gives the thing in its entirety.
attentions from a young man – that she had b. If the testator does not own the thing
received a letter from him --- and that her devised or bequeathed but the
grandfather, Florencio Pecson, took occasion testator erroneously believed that the
to talk to her about the relations between her thing pertained to him – the legacy or
and the said young man; that it was upon that devised is void, but subsequent
occasion when, it is alleged, the disobedience acquisition of the thing by the testator
and disrespect were shown to her grandfather. makes the legacy or devise effective.
The record shows that very soon after said c. If the testator does not own the thing
event she lost the use of her mental powers devised or bequeathed and the
and that she has never regained them, except testator knew that he did not own the
for very brief periods, up to the present time. thing – legacy or devised is valid.
Taking into considerations her tender years, d. The thing devised or bequeathed
and the fact that she very soon thereafter lost belonged to the legatee or devisee
the use of her mental faculties, the conclusion at the time of the execution of the will
was reached that she was probably not – legacy or devise is void.
responsible for the disrespect and e. The thing devised or bequeathed was
disobedience shown to her grandfather in the acquired by the legatee or devisee
year 1894 or 1895. after the execution of the will – if the
legatee or devisee acquired it
WHAT IS THE EFFECT OF RECONCILIATION IN gratuitously, he can claim nothing by
DISINHERITANCE? virtue of the legacy or devise; but it
has been acquired by onerous title
-A subsequent reconciliation between the he can demand reimbursement from
offender and the offended person deprives heir or the estate.
the latter of the right to disinherit and renders
ineffectual any disinheritance that may have WHAT ARE THE INSTANCES WHEN A LEGACY OR
been made. DEVISE IS CONSIDERED REVOKED BY OPERATION
OF LAW?
WHAT IS THE EFFECT OF INVALID
DISINHERITANCE? a. The legacy of credit of remission shall
lapse if the testator, after having
-The institution of heirs shall be annulled insofar made it, should bring an action
as it may prejudice the person disinherited; but against the debtor for the payment
the devises and legacies and other of his debt;
testamentary dispositions shall be valid to such b. If the testator transforms the thing
extent as will not impair the legitimate. bequeathed ins such a manner that
it doesnot retain either the form or
WHAT IS THE RULE WITH RESPECT TO LEGACIES the denomination it had;
AND DEVISES? c. If the testator by any title or for any
-Gen. Rule: Must be within the commerce of cause voluntarily alienates the thing
men bequeathed or any part thereof, it
- Effect of ownership as to the validity of the being understood that in the latter
legacy or devise: case the legacy or devise shall be
a. If the testator, heir, or legatee owns without effect only with respect to
only a part of, or an interest in the the part thus alienated. If after the
thing bequeathed – the legacy or alienation the thing should again
devise shall be understood limited to belong to the testator, even if it be
such part or interest, unless the by reason of nullity of the contract,

52
the legacy or devise shall not than that of the disposable portion,
thereafter be valid, unless the the compulsory heirs may choose
reacquisition shall have been between complying with the
effected by virtue of the exercise of testamentary provision and
the right of repurchase; delivering to the devisee or legatee
d. If the thing bequeathed is totally lost the part of the inheritance of which
during the lifetime of the testator, or the testator could freely dispose.
after his death without the heir‟s
fault. WHEN SHALL LEGAL OR INTESTATE SUCCESSION
TAKE PLACE?
IF THE ESTATE SHOULD NOT BE SUFFICIENT TO Legal or intestate succession takes place:
COVER ALL THE LEGACIES OR DEVISES, HOW
SHOULD LEGACIES AND DEVISES IS SATISFIED? (1) If a person dies without a will, or with a
-Satisfaction should be made in the following void will, or one which has subsequently
order: lost its validity;
(2) When the will does not institute an heir
(1) Remunerators legacies or devises; to, or dispose of all the property
(2) Legacies or devises declared by the belonging to the testator. In such case,
testator to be preferential; legal succession shall take place only
(3) Legacies for support; with respect to the property of which
(4) Legacies for education; the testator has not disposed;
(5) Legacies or devises of a specific, (3) If the suspensive condition attached to
determinate thing which forms a part of the the institution of heir does not happen or
estate; is not fulfilled, or if the heir dies before
(6) All others pro rata. the testator, or repudiates the
inheritance, there being no substitution,
*The foregoing enumeration shall be followed if and no right of accretion takes place;
there are no donations intervolves made by (4) When the heir instituted is incapable of
the testator and there are no compulsory heirs. succeeding, except in cases provided
Otherwise the reduction shall be made as under the Civil Code.
follows:
(1) Donations shall be respected as long
as the legitimate can be covered,
WHO ARE THE LEGAL HEIRS?
reducing or annulling, if necessary,
the devises or legacies made in the 1. Legitimate children and
will – between 2 donations, the one descendants;
with the more recent date shall be 2. In the absence of legitimate children
reduced first. ad descendants, legitimate parents
(2) The reduction of the devises shall be and ascendants;
pro rata, without any distinction 3. Surviving spouse;
whatever. 4. Illegitimate children;
If the testator has directed that a 5. Brothers and sisters;
certain devise or legacy be paid in 6. Collateral relatives up to the 5th
preference to others, it shall not degree of consanguinity;
suffer any reductions until the latter 7. State.
have been applied in full to the
payment of the legitimate.
(3) If the devise or the legacy consists of
a usufruct or life annuity, whose IF THERE IS ONLY PARTIAL INTESTACY, HOW
value may be considered greater SHOULD THE ESTATE IS DISTRIBUTED?

53
Eg. Legacy of 20,000 estates is 100,000 SUNTAY III vs. ISABEL COJUANGCO-SUNTAY
(G.R. No. 183053, JUNE 16, 2010)
 Charge legacies, etc. to the instate
shares of those given by law on On June 4, 1990, the decedent, Cristina
intestacy more than their respective Aguinaldo-suntay (Cristina), Married to Dr.
legitimates, without however impairing Federico Suntay (Federico), died intestate. In
said legitimates. 1979, their only son, Emilio Aguinaldo Suntay
 The remainder after legacy and (Emilio I), predeceased both Cristina and
legitimate of illegitimate is given, is Federico. At the time of her death, Cristina was
again given to the illegitimate because survived by her husband, Federico, and several
of the intent of the law on intestacy is to grandchildren, including herein petitioner
give as much as possible equal sharing Emilio A.M. Suntay III (Emilio III) and respondent
with legit ascendants. Isabel Cojuangco-Suntay. During his lifetime,
Emillio I was married to Isabel Cojuangco, and
they begot three children, namely: herein
respondent, Isabel; Margarita; and Emilio II, all
WHAT IS THE IRON BAR RULE?
surnamed Cojuangco-Suntay. Emilio I's
In legal succession, there is absolute separation
marriage to Isabel Cojuangco was
between legitimate family and illegitimate
subsequently annulled. Thereafter, Emilio I had
family.
two children out of wedlock, Emilio III and
ARTICLE 992. An illegitimate child has no right
Nenita Suntay Tanedo (Nenita), by two
to inherit ab intestato from the legitmate
different women, Concepcion Mendoza and
children and relatives of his father or mother;
Isabel Santos, respectively. Despite the
nor shall such children or relatives inherit in the
illegitimate status of Emilio III, he was reared
same manner from the illegitimate child.
ever since he was a mere baby, nine months
Illustration
old, by the spouses Federico and Cristina and
A
was an acknowledged natural child of Emilio I.
Nenita is an acknowledged natural child of
Emilio I and was likewise brought up by the
B D
spouses Federico and Cristina. Upon the death
of Cristina, Federico adopted Emilio III. During
C
the intestate proceeding over Cristina's estate,
Federico sought appointment as administrator
thereof. Later on, he nominated Emilio III to act
E F
as administrator.

The Court of Appeals (CA) zeroed in on Emilio


G H I J
III's status as an illegitimate child of Emilio I and,
Under Art. 992, I and J cannot represent F
thus, barred from representing his deceased
Under Art. 990, G and H can represent E
father in the estate of the latter's legitimate
Hence, an illegitimate can be represented by
mother, the decedent. On the whole, the CA
his children. Legitimate or illegitimate, but a
pronounced that Emilio III, who was merely
legitimate child cannot be represented by his
nominated by Federico, and which nomination
illegitimate children
hinged upon the latter's appointment as
E cannot inherit from B and A
administrator of the decedent estate, cannot
D cannot inherit from C and vice-versa (
be appointed as the administrator of the
reciprocal prohibition )
decedent's estate for the following reasons:
IN THE MATTER OF THE INTESTATE ESTATE OF
The appointment of Emilio III subject to a
CRISTINA AGUINALDO-SUNTAY; EMILIO A.M.
suspensive condition, i.e., Federico's

54
appointment as administrator of the estate, he Emilio III was reared from infancy by decedent,
being the surviving spouse of Cristina, the Cristina, and her husband Federico, who both
decedent. The death of Federico before his acknowledged him as their grandchild;
appointment as administrator of Cristina's Federico claimed half of the properties
estate rendered his nomination of Emilio III included in the estate of the decedent,
inoperative. Cristina, as forming part of their conjugal
As between the legitimate offspring partnership and gains during the subsistence of
(respondent) and illegitimate offspring (Emilio their marriage;
III) of decedent's son, Emilio I, respondent is Cristina's properties forming part of her estate
preferred, being the “next of kin” referred to by are still commingled with that of her husband
Sec. 8, Rule 78 of the Rules of Court, and Federico, because her share in the conjugal
entitled to share in the distribution of Cristina's partnership, albeit terminated upon her death,
estate as an heir; remains undetermined and unliquidated; and
Jurisprudence has consistently held that Art. Emilio III is a legally adopted child of Federico,
992 of the Civil Code bars the illegitimate child entitled to share in the distribution of the latter's
from inheriting ab intestato from the legitimate estate as a direct heir, on degree from
children and relatives of his father and mother. Federico, not simply, representing his
Thus, Emilio III, who is barred from inheriting deceased illegitimate father, Emilio I.
from his grandmother, cannot be preferred
over respondent in the administration of the From the foregoing, it is patently clear that the
estate of their grandmother, the decedent; CA erred in excluding Emilio III from the
and administration of the decedent's estate. As
Contrary to the RTC's finding, respondent is as Federico's adopted son, Emilio III's interest in
much competent as Emilio III to administer and the estate of Cristina is as much apparent to
manage the subject estate for she possesses this Court as the interest therein of respondent,
none of the disqualifications specified in Sec. 1, considering that the CA even declared that
Rule 78 of the Rules of Court. “under the law, [ Federico], being the surviving
spouse, would have right of succession over a
The pivotal issue in this case turns on who, as portion of the exclusive property of the
between Emilio III and respondent, is better decedent, aside from his share in the conjugal
qualified to act as administrator of the partnership.” Thus, we are puzzled why the CA
decedent's estate. restored to a strained legal reasoning – Emilio
III's nomination was subject to a suspensive
HELD: We cannot subscribe to eh appellate condition and rendered inoperative by reason
court's ruling excluding Emilio III in the of Federico's death – wholly inapplicable to
administration of the decedent's undivided the case at bar.
estate. Mistakenly, the CA glosses over several
undisputed facts and circumstances: Note:
Legitimate Children exclude parents, brothers
The underlying philosophy of our law on and sisters, nephews and nieces
intestate succession is to give preference to Children (legitimate or illegitimate) concur with
the wishes and presumed will of the decedent, surviving spouse
absent a valid and effective will; Illegitimate children exclude illegitimate
The basis for Art. 992 of the Civil Code, referred parents, brothers and sisters, nephews and
to as the iron curtain bar rule is quite the nieces (Art. 988 and 1003)
opposite scenario in the facts obtaining herein Parents exclude brothers and sisters, nephews
for the actual relationship between Federico and nieces
and Cristina on one hand, and Emilio III, on the Parents concur with surviving spouse
other, was akin to the normal relationship of Surviving spouse concurs with, brothers and
legitimate relatives. sisters, nephews and nieces

55
ascending (eg. Aunts/uncles vs.
Surviving spouse nephews/nieces)
must be legitimate (legally married)
must not be guilty party in case of legal
separation because she becomes disqualified
to inherit (Art. 1002) State
Decree of legal separation is required for the succeeds in default of all heirs in the direct line
spouse to be disqualified. But if he/she gave and collaterals up to the 5th civil degree
cause for legal separation only, this is ground Caduciary rights: refer to the right of the estate
for disinheritance of the estate to claim thru escheat
Reconciliation erases the ground for proceedings the properties of descendants
disinheritance. Also puts aside the effects of who are not survived by any heirs.
legal separation Escheat proceedings: Process by which state
In testamentary succession, if the spouse is the acquires. Rule 91 of the Rules of Court
only survivor, the share varies if the marriage
was celebrated in articulo mortis. In legal WHAT IS ACCRETION?
succession, the spouse gets the entire estate is a right by virtue of which, when two or more
whether or not the marriage was celebrated in persons are called to the same inheritance,
articulo mortis. devise or legacy, the part assigned to the one
If the spouse survives with legitimate parents who renounces or cannot receive his share or
and adopted child, treat the adopted child as who died before the testator, is added or
illegitimate. Reason: The adopted child will not incorporated to that of his co-heirs, co-
exclude legitimate parents (Del Rosario vs. devisees, or co- legatees.
Conanan, March 30, 1977) Based on presumed will of testator that he
prefers to give certain properties to certain
Collateral Relatives individuals, rather than his own heirs.
neared excludes the farther
Brothers and sisters. Those in full blood inherit in WHAT ARE THE REQUISITES FOR ACCRETION?
equal shared, those in the half blood inherit Unity of object (one inheritance)
half of that in the full blood. plurality of subjects (2 or more to inherit
In the collateral line, right of representation is ordinarily)
only up to nephews and nieces. In the direct vacant portion
line, no limit acceptance (of portion accruing by the
between aunts/uncles and nephews/nieces, person entitled)
who are preferred? Nephews and nieces Example: A house and lot to X and Y
because they come first in the order of
succession and are in the descending line Before there can be accretion, observe the
collaterals are only up to the 5th civil degree. In following rule (ISRAI):
the direct line, no limit. Institution
Substitution
Summary: Representation
Nearer, excludes the farther subject to right of Accretion
representation (eg. Children vs. grandchildren) Intestacy
if same degree, direct line is preferred over the Accretion occurs both in Testamentary and
collateral line (eg. Grandchildren vs. Legal Succession
brothers/sisters)
If both in the direct line, descending favored WHEN IS THERE UNITY OF OBJECT?
over ascending, except illegitimate 2 or more persons called to the same
descendants (eg. Parents vs. children) inheritance or same portion, pro-indiviso.
if both in collateral, descending favored over Meaning, undivided

56
Words ½ for each, in equal shares, though Spouse
designate aliquot parts, do no exclude right of
accretion as long as the specific part is not Parents alone – ALL Illegitim
identified as to make each heir the exclusive Survivin
owner of a determinate property ( Art. 1017). Surviving Spouse along – ALL Legitim
Same if ¼ to A ¾ B. Survivin
Eg. ½ to A and same to B in my lot in Ma-a. But
Illegitimate Child alone – ALL Illegitim
if the north to B and south to A, no accretion.
Survivin
Money or fungible goods. Share must not be
Legitim
earmarked. Eg. My cash in my vault, to A, B,
and C. But if my cash in Metro Bank to A, in 1 Legitimate Child – ½ Illegitim
UCPD to B, no accretion Surviving Spouse – ½ Survivin
Illegitimate Children – ½ Survivin
WHERE IS THERE VACANCY? Legitimate Parents – ½ Brother
Testamentary/ Succession
Vacant caused by:
Note: In legal succession, if only 2 classes of
predecease
concurring heirs survive, divide the estate by 2.
incapacity
Each class shall receive ½.
repudiation (share always accrues to the
others Art. 1018)
WHAT IS THE RIGHT OF REPRESENTATION?
if suspensive conditions is not fulfilled
Representation is a right created by fiction of
failure to identify one particular heir
law, by virtue of which the representative is
(ineffectiveness of institution)
rasied to the place and the degree of the
among compulsory heirs, accretion takes
person represented, and acquires the rights
place only on free portion. If part repudiated is
which the latter would have if he were living or
legitime, co-heirs inherit in own right, not by
if he could have inherited.
accretion (Art. 1021)
The right of representation takes place in the
direct descending line, but never in the
Legal Succession
ascending. In the collateral line, it take place
Vacancy caused by:
only in favor of the children of brothers or sisters
Repudiation (share always accrues to the
(nephews and nieces), whether they be of the
other Art. 1018)
full or half blood.
Incapacity (subject to representation)
When children of one or more brothers and
Predecease no accretion because there is
sisters of the deceased survive, they shall inherit
really no vacant portion and survivors inherit in
from the latter by representation (per stirpes), if
their own right or by representation. But effect
they survive with their uncles or aunts. But if
is the same.
they alone survive, they shall inherit in equal
Eg. T died without will but one of his 3 children
portions (per capita).
renounced his inheritance. Share shall accrue
In case of grandchildren of the decedent, they
to the 2 children.
always inherit by right of representation (per
stirpes) even if all the children of the decedent
HOW MUCH SHALL ACCRUE TO THE CO-HEIRS
are deceased.
IN ACCRETION?
Heirs who repudiate their share may not be
In the same proportion that the heirs inherit
represented.
(Art. 1019)
Can an adopted child represent? No.
WHAT LAW GOVERNS CAPACITY TO SUCCEED?
WHAT ARE THE INTESTATE SHARES OF THE LEGAL
Capacity to succeed is governed by the law
HEIRS?
of the nation of the decedent. (Art. 1039)
Legitimate Child alone – ALL 2 or So
more Legitimate
in addition to Children Surviving
Art. 16, the following are

57
governed by the national law of decedent. INCAPACITY BY REASON OF POSSIBLE UNDUE
1. order of succession INFLUENCE
2. amount of successional rights ARTICLE 1027. The following are
3. instrinsic validity if testamentary provision incapable of succeeding:
4. capacity to succeed The priest who heard, the confession of the
testator during his last illness, or the minister of
WHO ARE CAPACITATED TO SUCCEED? the gospel who extended spiritual aid to him
Judicial persons inherit only by will during the same period;
the state inherits by will or by intestacy Reasons: to safeguard the rights of the heirs
insane persons, though incapacitated, to enter who may be defrauded by the sinister and
into contracts or make wills, are capacitated undue influence which may be exercised by
to inherit. some priests or ministers over a dying man
In order to be capacitated to inherit, the heir, Will must be made DURING last illness for it is
devisee, or legatee must be living at the there that undue influence could have been
moment the succession opens, except in case exercised. Not BEFORE because undue
of representation, when it is proper. influence does not yet exist NOR AFTER
“living” includes those conceived at time of because no longer subject to undue influence.
death of decedent but follow Art. 41, Civil Will must be made AFTER confession, not
Code – considered born if alive at time of BEFORE because before confession, no undue
complete delivery. If intra-uterine life is less influence yet.
than 7 months, must not die within 24 hours Hence, during last illness and after confession.
from complete delivery. Confession need not be the last, Eg. Very sick
Right or representation is not an exception man. Priests may say during confession, you will
because even the representative must already soon die from your illness. If you will not give not
be alive or at least conceived at time of death give to me, you will go to hell.”
of testator. Last illness is one of which the testator died, OR
the one immediately preceding it (like died of
WHAT ARE THE KINDS OF INCAPACITY? accident)
Absolute – cannot inherit from anybody under Note: If the testator did not die from last illness,
any circumstance but from other causes, the death must
2 classes: immediately follow confession during last illness
Art. 1026, last paragraph. “All other such that testator had no opportunity to
corporations or entitles may succeed under a revoke the will. Thus if testator became ill in
will, unless there is a provision to the contrary in 1990 and confessed then made a will in 1990
their charter of the laws of their creation, and making priest a heir, then gets well in 1991 and
always subject to the same.” did not become ill since then and
Art. 1027 (6) individuals, associations and subsequently died in an accident in 2003,
corporations not permitted by law to inherit there is sufficient opportunity to revoke.
Those who lack juridical personality (abortive Nature of last illness, great possibility of death,
infants) regardless of whether chronic or acute, long or
Relative – cannot inherit only from certain short.
persons or certain properties but can inherit Disqualification does not extend to:
from other persons or certain properties 1. Legitime (only free portion)
3 classes of relative incapacity: 2. Intestacy (no undue influence)
by reason of possible undue influence (art. 3. Dispositions which do not extend
1027 [1 – 5]) testamentary benefit (eg. Appointment as
by reason of public policy and morality (art. executor)
1028) Priest must hear confession, one who extends
by reason of unworthiness (art. 1032) spiritual aid is not disqualified
Minister who extends spiritual aid disqualified.

58
legitime and qualified to inherit by intestacy.
The relatives of such priest or minister of the
gospel within the 4th degree, the church, order, In Art. 1027, there is CONCLUSIVE PRESUMPTION
chapter, community, organization, or institution that there was undue influence. Cannot prove
to which such priest or minister may belong. otherwise.
A guardian with respect to testamentary
dispositions given by a ward in his favor before INCAPACITY BY REASON OF PUBLIC POLICY
the final accounts of the guardianship have AND MORALITY.
been approved, even if the testator should die ARTICLE 1028. The prohibitions mentioned in
after the approval thereof, nevertheless, any article 739, concerning donations inter vivos
provision made by the ward in favor of the shall apply to testamentary provisions.
guardian when the latter is his ascendant, Art. 739
descendant, brother, sister, or spouse, shall be Testator and recipient guilty of adultery or
valid. concubinage – guilt may be proved by
Guardian of person or property preponderance of evidence. No need from
As long as final account is not yet approved, criminal conviction.
cannot be made heir, legatee or devisee even Between persons found guilty of the same
if at time of death testator, account is already criminal offense, in consideration thereof.
approved. Illustrate. Made to public officer of his wife,
If after approval of final accounts, guardian descendants, ascendants, by reason of his
can already be voluntary heir, legatee or office.
devisee.
Final accounts – given to the court when INCAPACITY BY REASON OF UNWORTHINESS
guardianship is removed, or when he resigns, (Art. 1032)
or when no need for guardianship to continue. ARTICLE 1023. The following are incapable of
If guardian is the spouse, ascendant, succeeding by reason of unworthiness:
descendant, brother or sister, the provision is Parents who have abandoned their children or
valid. Hence, if guardian is 1st cousin, nephews, induced their daughters to lead a corrupt or
nieces, etc. - VOID. Reason: Affection, not immoral life, or attempted against their virtue.
influence is the underlying reason. Any person who has been convicted of an
Unlike the priest, the relatives of the guardian attempt against the life of the testator, his or
are not disqualified. her spouse, descendants, or ascendants.
Any attesting witness to the execution of a will, If attempted to kill testator's father after
the spouse, parents, or children, or any one testator's death, not disqualified because
claiming under such witness, spouse, parents, capacity to succeed is measured at time of
or children. decedent's death (Art. 1034)
Related to Art. 823 Any person who has accused the testator of a
If there are 3 other witnesses, the witness is crime for which the law prescribes
qualified to inherit (Art, 823) imprisonment for six years or more, if the
Notary public not disqualified to inherit. accusation has been found groundless.
Any heir of full age who, having knowledge of
(5). Any physician, surgeon, nurse, health the violent death of the testator, should fail to
officer or druggist who took care of the testator report it to an officer of the law within a month,
during his last illness. unless the authorities have already taken
Will must be made during last illness and after action; this prohibition shall not apply to cases
care had commenced wherein, according to law, there is no
Tock care – continuing or regular, not isolated obligation to make an accusation.
If physician or nurse etc. relative, still Full age – 21 years old
disqualified because the law is silent unlike knowledge of VIOLENT DEATH – caused by
case of guardian. BUT can still get their children crime

59
there is obligation to make accusation: Under is no disinheritance. Art. 1033 applies.
Spanish Law page 561 Paras, certain persons In Testamentary Succession, the incapacitated
are exempted from making accusations. In covers the entire intestate share of the
Phils, no one is obliged to make accusations. incapacitated heir.
Any person convicted of adultery or In Legal Succession, the right of representation
concubinage with the spouse of the testator. covers the entire intestate share of the
Spouse guilty him/herself is not incapacitated incapacitated her.
but ground for disinheritance (given cause for Like in disinheritance, the excluded person shall
legal separation) not enjoy the usufruct and administration of
if decree of legal separation is granted, guilty the inherited property of his/her children.
spouse becomes disqualified to inherit.
Any person who by fraud, violence, Prescriptive periods
intimidation, or undue influence should cause Prescriptive period for declaration of
the testator to make a will or to change or incapacity – 5 years from time the disqualified
already made. took possession (Art. 1040)
Any person who by the same means prevents Prescriptive period for recovery of inheritance –
another from making will, or from revoking one 5 years from time the disqualified took
already made, or who supplants, conceals, or possession (Art. 1040)
alters the latter's will; Who can bring action – those interested in the
Any person who falsifies or forges a supposed succession. (Art. 1040)
will of the decedent.
Art. 1032 applies both to testate and intestate WHAT IS ACCEPTANCE?
succession Acceptance – the act by which a person
Compulsory heir who is incapacitated loses all called to succeed to the inheritance of a
(legitime and free portion) decedent, either by will or by law, manifests his
But again, can be represented assent to the receipt of the property, rights,
Condonation and obligations which are transmitted to him
thru death of said decedent.
If the testator already knew the cause of
unworthiness at the time of will-making, the WHAT IS REPUDIATION?
mere fact of institution or giving legacy or Repudiation – the act by which a person
devise is an IMPLIED CONDONATION. called to succeed to said inheritance,
- knowledge at time of will making is not manifests his unwillingness to succeed to the
enough. Testator must give something in the same.
will to the disqualified heir in order that there
may be condonation. Nature of acceptance and Repudiation
- the will made must be valid or not revoked in
order that there may be implied condonation. 1. Rights may be waived provided only
If knowledge comes only after execution of that such waiver is not contrary to law,
will, condonation must be writing – EXPRESS public order, public policy, moral, good
REVOCATION. customs, or prejudicial to the rights of a
- express revocation is irrevocable unless there 3rd person. (Art. 6)
is vitiated consent. 2. No person can be forced to accept the
What if there is subsequent reconciliation? generosity of another. Thus,
Under Art. 922; reconciliation renders acceptance is required.
disinheritance ineffective. How about the 3. Voluntary and free acts. Presence of
incapacity? Should there still be condonation vitiated consent will render them
in writing? NO. When cause for unworthiness is without effect.
made the ground for disinheritance, Art. 922 4. Both are subsequent to death of
applies. Reconciliation is enough. When there decedent but their effects retroact to

60
the moment of death. (Art. 1042) , institutions order ves with
5. Once made, are irrevocable. and entities made in court
6. It is more usual to accept then to reject (Art. 1046) Art.1030 approval
an advantage or benefit. Hence,
acceptance may be express or tacit or
presumed. (art. 1049). Repudiation
being an act of disposition, requires D. Public
greater capacity and more formalities Lawful
Official
than acceptance. Establishme representati
7. There can be partial acceptance and nts ves may Must be
partial repudiation (Arts. 954 and 955 – accept in with
accept onerous and repudiate behalf of approval
gratuitous or if both onerous and governmen
gratuitous, accept and reject both or
E. Married t
either.
Woman
8. Repudiation of hereditary rights
partakes the nature of donation.
9. Acceptance of inheritance does not
make the heir personally liable for the Must be Herself
debts and obligations of decedent. ( with even
art. 774). approval of without
F. Deaf mutes
governmen husbands
Heir Acceptanc Repudiatio who can
t consent
e n read and
write

A. Minors May be Parents or Accept on Personality


represente guardians her own or by an
d by with judicial agent
parents or approval
guardians

(Art. 1044)
No one Personally
B. Those left to
or through
the poor
an agent
Must be
accepted
by the  Creditors may also accept in behalf of
persons heirs under Article 1052. If the heir
designated repudiates the inheritance to the
by the prejudice of his own creditors, the latter
testator or may petition the court to authorize
in their them to accept it in the name of the
C. Corporatio default heir.
Lawful
ns, follow the  The creditors must be prejudiced. If the
associations representati
heir concerned still has his own

61
properties, the creditors must go after inherit by accretion (or substitution) of
the property of the heir, they cannot the portion renounced.
accept in behalf of heir.
(C) Presumed- if heir, devisee or legatee
HOW IS ACCEPTANCE MADE? does not accept pr repudiate within 30
(A) Express Acceptance- must be in a days after the court has issued an order
public or privates document. Cannot be for the distribution of the estate (Art.
verbal (Art.1049) 1057)
(B) Tracit- results from acts by which the BUT: Acts of mere conservation or
intention to accept is necessarily implied provisional administration do not constitute
or which one would have no right to do acceptance ( Art. 1049, last paragraph:
except in the capacity of an heir. (Art. Acts of mere preservation or provisional
1049) administration do not imply an acceptance
Example of Tracit Acceptance: of the inheritance if, through such acts, the
title r capacity of an heirs has not been
ARTICLE 1050. An inheritance is cleemed assumed.)
accepted:
HOW IS REPUDIATION MADE?
1. If the heirs sells, donates, or assigns his
right to a stranger, or to his co-heirs, or 1. Public or authentic instrument
to any of them;
*public document-act acknowledge
2. If the heir renounces the same, even
before notary public, or person authorized
though gratuitiously, for the benefit of to administer oath
one or more of his co-heirs not all-
hence, renunciation may be onerous or *authentic document- genuine document
gratuitous. An act of disposition not forged or falsified. May be private.
because one or more of the co-heirs
2. by petition presented to the court
acquire a benefit or advantage which
would not have accrued to them in the having jurisdiction over the testamentary or
intestate proceedings.
case of true renunciation.
3. If he renounces it for a price in favor of WHAT ARE THE EFFECTS OF REPUDIATION?
all his co-heirs indiscriminately but if this
renunciation should be gratuitious, and 1. If both a testamentary heir and intestate
the co-heirs in whose favor is made are heir to the same inheritance,
those upon whom the portion repudiation as testamentary heir is
renounced should devolve by virtue of deemed to include also repudiation as
accretion, the inheritance shall not be intestate heir. Reason: Having
deemed as accepted. repudiated the express will, it is
“co-heirs”- meaning in intestacy, understood that he also repudiates the
substitution or accretion presumed will;
-if gratuitous , renunciation must not be 2. If repudiates as a intestate heir, may still
made in favor of the ones who will accept as testamentary heir provided
that at time of repudiation, he did not

62
know if his institution as testamentary substitution, the judgment approving the
heir. Reason: may not want to refuse the compromise agreement has already been
express wishes of testator. rendered. Victor merely participated in the
execution of the comprise judgment. He was
Imperial vs. CA, [G.R. No. 112483. October not a party to the compromise agreement.
8,1999 More importantly, our law on succession does
Leoncio sold his land title to his natural son, not countenance tacit repudiation of
petitioner but it was alleged that the sale was inheritance. Rather, it requires an express act
in fact a donation. 2 years after the donation, on the part of the heir. Thus, when Victor
Leoncio filed a complaint for annulment of the substituted Leoncio in Civil Case No. 1177 upin
said Deed of Absolute Sale on the ground that the latter‟s death; his act of moving for
he was deceived into signing the said execution of the compromise judgment
document. The dispute, however, was resolved cannot be considered an act of moving for
through a compromise agreement. Pending execution of the compromise judgment
execution of the above judgment, Leoncio cannot be considered an act of renunciation
died, leaving only two heirs- his natural son, of his legitime. He was, therefore, not
and an adopted son, Victor Imperial. In 1962, precluded or stopped from subsequently
Victor was substituted in place of Leoncio in seeking the reduction of the donation, under
the above mentioned case, and it was he who Article 772. Nor are Victor‟s heirs, upon his
moved for execution of judgment. Fifteen death, precluded from doing so, as their right
years thereafter, Victor died single and without to do so is expressly recognized under Article
issue, survived only by his natural father, 772, and also in Article 1053. If the heir should
Ricardo. Four years after, Ricardo died, die without having accepted or repudiated
leaving as his only heirs his two children, Cesar the inheritance, his right shall be transmitted to
and Teresa. Cesar and Teresa filed a complaint his heirs. The ten year prescriptive period
for “ Annulment of Documents, Reconveyance applies to the obligation to reduce inofficious
and Recovery of Possession” seeking the donations, compulsory heirs under Article 771
nullification of the Deed of Absolute Sale of the Civil Code, to the extent that they impair
alleging that the conveyance of said property the legitimate of compulsory heirs. The cause
impaired the legitimate of Victor Imperial, their of action to enforce legitimate accrues upon
natural brother and predecessor-in-interest. As the death of the donor-decedent. Clearly so,
argues by petitioner, when Leoncio died, it was since it is only then that the net estate may be
only Victor who has entitled to question the ascertained and on which basis, the legitimes
donation. However, instead of filing an action may be determined.
to contest the donation, Victor asked to be WHAT IS COLLATION?
substituted as plaintiff in Civil Case No. 1177
and even moved for execution of the  Question of collation arises only if there
compromise judgment therein. Thus, Victor was are donations inter vivos made by the
deemed to have renounced his legitime. dececent abd there are compulsory
heirs surviving.
HELD: No renunciation of legitime may be  3 concepts of Collation:
presumed from the foregoing acts. It must be 1. Mathematics Process- the imaginary
remembered that at the time of the addition or fictitious reunion of

63
property donated by the testator would seem to limit collation to the latter class
inter vivos with the properties left at of donations. Collationable gifts should include
the time of his death. gifts made not only in favor of the forced heirs,
2. Imputation- donation inter vivos but even those made on favor of strangers, so
made to compulsory heirs are that in computing the legitimes, the value of
considered as advances to their the property donated should be considered
legitimes. part of the donor‟s estate.
3. Actual Reduction or Abatement-
actual reduction or bringing back of The fact that the donated property no longer
actually formed part of the estate of the donor
that property donated by the
testator during his lifetime to the at the time of his death cannot be asserted to
hereditary estate if the donations are prevent its being brought to collation. Collation
found to be inofficious. contemplates and particularly applies to gifts
inter vivos. The further fact that the lots
ARE DONATION TO STRANGERS SUBJECT TO donated were admittedly capital or separate
COLLATION? property of the donor is of no moment,
because a claim of inofficiousness does not
CASE: assert that the donor gave what was not his,
Vda. De Tupas, vs RTC of Negros Occidental but that he gave more than what was within
(October 3, 1986) his power to give. In order to find out whether
a donation is inofficious or not, the rules are:
Tupas Foundation, Inc. being a stranger and
not a compulsory heir, the donation inter vivos 1. Determination of the value of the
made in its favor was not subject to collation. property which remains at the time of
the testator‟s death;
HELD: A person‟s prerogative to make 2. Determination of the obligations, debts,
decisions is subject to certain limitations, one of and charges which have to be paid out
which is that he cannot give by donations or deducted from the value of the
more than he can give by will. If he does, so property thus left;
much of what is donated as exceeds what he 3. The determination of the difference
can give by will is deemed inofficious and the between the assets and the liabilities,
donation is reducible to the extent of such giving rise to the hereditary estate;
excess, though without prejudice to its taking 4. The addition to the net values thus
effect in the donor‟s lifetime or the donee‟s found, of the value at the time they
appropriating the fruits of the thing donated. were made, of donations subject to
Such a donation is, moreover collationable, collation; and
that is, its value is in imputable into the 5. The determination of the amount of the
hereditary estate of the donor at the time of his legitimes by getting from the total thus
death for the purpose of determining the found the portion that the law provides
legitime of the forced compulsory heirs and as the legitime of each respective
the freely disposable portion of the estate. This compulsory heir. Deducting the
is true as well of donations to strangers as of legitimes from the net value of the
gifts to compulsory heirs, although the hereditary estate leaves freely
language of Article 1061 of the Civil Code disposable portion by which the

64
donation in question here must be - Partition, in general, is the
measured. If the value of the donation separation, division and assignment
at the time it was made does not of a thing held in common among
exceed that difference, then it must be those whom it may belong. The thing
allowd to stand. But is it does, the itself may be divided, or its value.
donation is inofficious a the excess and
must be reduced by the amount of said CAN PARTITION BE MADE DURING THE LIFETIME
excess. In this case, if any excess be OF THE DECEDENT?
shown, it shall be returned or reverted to CASE:
the sole compulsory heir if the
deceased Epifano R. Tupas. Zaragoza vs CA (341 SCRA 309, September
29,2000)

IS AN IRREVOCABLE DONATION SUBJECT TO It is basic in the law of succession that a


COLLATION? partition inter vivos may be done for as long as
legitimes are not prejudiced. Art. 1080 of the
CASE: Civil Code is clear on this. The legitime of
Buhay De Roma vs. CA (July 23,1987) compulsory heirs is determined after collation
as provided for in Article 1061. Unfortunately,
There is nothing in the above provisions collation cannot be done in this case where
expressly prohibiting the collation of the the originl petition for delivery of inheritance
donated properties. As the said court correctly share only impleaded one of the other
observed, the phrase “sa pamamagitan ng compulsory heirs. The petition must therefore
pagbibigay na din a mababawing muli” be dismissed without prejudice to the institution
merely described the donation as of a new proceeding where all the
“irrevocable‟ and should not be construed as indispensable parties are present for the rightful
an express prohibition against collation. The determination of their respective legitime and
fact that a donation is irrevocable does not if the legitimes were prejudiced by the
necessarily exempt the subject thereof from partitioning inter vivos.
the collation required under Article 1061. The
intention to exempt from collation should be WHAT ARE THE REQUISITES FOR AN
expressed plainly and unequivocally as an EXTRAJUDICIAL PARTITION?
exception to the general rule announced in Case:
Article 1062. The suggestion that there was an
implied prohibition because the properties Heirs of Joaquin Teves vs. CA (316 SCRA 632)
donated were imputable to the free portion of
The extrajudicial settlements executed by the
the decedent‟s estate merits little
heirs of Joaquin Teves and Marcelina
consideration. Imputation is not the question
Cimafranca are legally valid and binding. The
here, nor is it claimed that the disputed
extrajudicial settlement of a decedent‟s estate
donations is officious. The sole issue is whether
is authorized by section 1 of Rule of Court. For a
or not there was an express prohibition to
partition pursuant to section 1 of Rule 74 to be
collate, and there was none.
valid, the following conditions must concur: 1.
WHAT IS PARTITION? The decedent left no will; 2. The decedent left

65
no debts , or if there were debts left all had undermined when no creditors are involved.
been paid; 3.the heirs are all of age, or if they Without creditors to take into consideration, it is
are minors, the latter are represented by their competent for the heirs of an estate to enter
judicial guardian or legal representatives; 4. into an agreement for distribution thereof in a
The partition was made by means of a public manner and upon a plan different from those
instrument or affidavit duly filed with the provided by the rules from which, in the first
Registrars of Deeds. place, nothing can be inferred that a writing or
other formality is essential for the partition to be
Although Cresenciano, Ricardo‟s predecessor- valid. The partition of inherited property need
in-interest, was not a signatory to the
not be embodied in a public document so as
extrajudicial settlements, the parttion of Lot769- to be effective as regards to heirs that
A among the heirs was made in accordance participated therein. The requirement of Article
with their intestate shares under the law. The 1358 of the Civil Code that acts which have for
extrajudicial settlements covering Lot769-A their object the creation, transmission,
were necer registered. However, in the case of modification or extinguishment of real rights
Vda. De Reyes vs cA, 35 the Court, interpreting over immovable property, must appear in a
section 1 of Rule 74 of the rules of court, upheld
public instrument, is only for the convenience,
the validity of an oral partition of the non-compliance with which does not affect
decedent‟s estate declared that the non- the validity or enforceability of the acts of the
registration of an extrajudicial settlement does parties as among themselves.
not affect its intrinsic validity when there are no
creditors or the rights of creditors are not And neither does the Statute of Frauds under
affected. Article 1403 of the New Civil Code apply
because partition among heirs is not legally
IS AN ORAL PARTITION VALID? deemed a conveyance of real property,
Cases: considering that it involves not a transfer of
property from one to the other but rather,
Pada-Kilario vs CA (G.R. No.13429, January confirmation or ratification of title or right of
19,2000) property that an heir is renouncing in favor of
another heir who accepts and receives the
The extrajudicial partition of the estate of
inheritance.
Jacinto Pada among his heirs made in 1951 is
valid, albeit executed in an unregistered Crucillo vs. IAC (317 SCRA 351)
private document. No law requires partition
among heirs to be in writing and be registered It can be gleaned unerringly that the heirs of
in order to be valid. The requirement in Sec.1, Balbino A. Crucillo agreed to orally partition
Rule 74 of the Revised rules of Court that a subject estate among themselves, as evinced
partition be put in a public document and by their possession of the inherited premises,
registered, has for its purpose the protection of their construction of improvements thereon,
creditors and the heirs their selves against tardy and their having declared in their names for
claims. The object of registration is to serve as taxation purposes their respective shares. These
constructive notice to others. It follows then are indications that the heirs of Balbino A.
that the intrinsic validity of partition not Crucillo agreed to divide subject estate
executed with the prescribed formalities is not among themselves, for why should they

66
construct improvements thereon, pay the executed in virtue of license or tolerance of
taxes therefor, and exercise other acts of the owners shall not be available for the
ownership, if they did not firmly believe that the purpose of possession.
property was theirs. It is certainly foolhardy for
petitioners to claim that no oral partition was Indeed, Filipino family ties being close and
made when their acts showed otherwise. well-knit as they are, and considering that
Moreover, it I unbelievable that the possession Virgilio Santos was the ward of Isidra Santos
of the heirs was by mere tolerance judging ever since when Virgilio Santos was still an
from the introduction of improvements thereon infant, it was but natural that the Appellant did
not interpose any objection to the continued
and the length of time that such improvements
have been in existence. Then too, after stay of Virgilio Santos and his family on the
exercising acts of ownership over their property and even acquiesced thereto.
respective portions of the contested estate, Appellant must have assumed too, that his
petitioners are stopped from denying or brother, the Appellee Eliseo Santos, allowed his
contesting the existence of an oral partition. son to occupy the property and use the same
The oral agreement for the petitioner of the for the time being. Hence, such possession by
Virgilio Santos and Philip Santos of the property
property owned in common is valid, binding
and enforceable on the parties. did not constitute repudiation of the co-
ownership by the Appellee Eliseo Santos and of
WHEN CAN PARTITION BE DEMANDED? his privies for that matter. Penultimately, the
action for partition is not barred by laches. An
Case:
action to demand partition is imprescriptive or
Santos vs. Santos ( October 12,2000) cannot be barred by laches. Each co-owner
may demand at any time the partition of the
Prescription, as a mode of terminating a common property.
relation of co-ownership, must have been
preceded by repudiation (of the co- WHAT IS TE EFECT OF INCLUSION OF A NON-
ownership). The act of repudiation in turn is HEIR IN THE PARTITION?
subject to certain conditions: 1. A co-owner Cases:
repudiates the co-ownership; 2. Such an act of
repudiation is clearly made known to the other Aznar Brothers Real Property Company vs. CA
co-owners; 3. The evidence thereon is clear (March 7, 2000)
and conclusive; and 4. He has been in
possession through open continuous, exclusive In the instant cases, private respondents have
and notorious possession of the property for set up the defense of ownership and
the period required by law. questioned the title of AZNAR to the subject lot,
alleging that the Extrajudicial Partition with
There was no showing that Eliseo Santos had Deed of absolute Sale upon which petitioner
complied with these requisites. The SC was not bases its title is null and void for being
convinced that Eliseo had repudiated the co- simulated and fraudulently made.
ownership, and even if he did, there was no
showing that the same had been clearly made First, private respondents claim that not all the
known to Ladislao. Under Article 1119 of the known heirs of Crisanta Maloloy-on
New Civil Code, acts of possessory character participated in the extrajudicial partition, and

67
the two persons who participated and were Union Bank of the Philippines vs. Santibanez
made parties there were not heirs of Crisanta. (G.R No. 149926. February 23,2005)
This claim even if true would not warrant
It must be stressed that the probate
rescission of the deed. Under Article 1104 of
the Civil Code, “[a] partition made with proceeding had already acquired jurisdiction
preterition of any of the compulsory heirs shall over all the properties of the deceased,
not be rescinded, unless it be proved that including the three (3) factors. To dispose of
there was a bad faith or fraud on the art of the them in any way without probate court‟s
persons interested, but the latter shall be approval is tantamount to divesting it with
jurisdiction which the Court cannot allow.
proportionately obliged to pay to the person
omitted the share which belongs to him.” In Every act intended to put an end to division
the present case, no evidence of bad faith or among co-heirs and legatees or, or any other
fraud is extant from the records. As to the two transactions. Thus, devisee is deemed to be a
parties to the deed who were allegedly not partition, although it should purport to be a
heirs, Article 1105 is in point; it provides: “ A sale, an exchange, a compromise, or any
partition which includes a person believed to other transactions. Thus, in executing any point
agreement which appears to be in the nature
be an heir, but who is not, shall be void only
with respect to such person.” In other words, of an extra-judicial partition, as in the case at
the participation of non-heirs does not render bar, court approval is imperative, and the heirs
the partition void in its entirely but only to the cannot just divest the court of its jurisdiction
over the part of the estate. Moreover, it is
extent corresponding to them. The extrajudicial
within the jurisdiction of the probate court to
Partition with Deed of Absolute Sale is a
notarized document. As such, it has in its favor determine the identity of the heirs of the
the presumption of regularity and it carries the decedent. In the instant case, there is no
showing that the signatories in the joint
evidentiary weight conferred upon it with
respect to its due execution. It is admissible in agreement are the only heirs of the decedent.
evidence without further proof of authenticity When it was executed, the probate of the will
and is entitled to full faith and credit upon its was still pending before the court and the
latter had yet to determine who the heirs of
face. He who denies its due execution has the
burden of proving that contrary to the recital in the decedent were. Thus, for Edmund and
the Acknowledgement he never appeared respondent Florence S. Ariola to adjudicate
before the notary public and acknowledge unto themselves the three (3) tractors was a
the deed to be his voluntary act. Whoever premature act, and prejudicial to the other
alleges forgery has the burden of proving the possible heirs and creditors who may be a
same. Forgery cannot be presumed but should valid claim against the estate of the
be proved by clear and convincing evidence. deceased.
Private respondents failed to discharge this WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF
burden of proof; hence, the presumption in REDEMPTION IN CASE HEREDITARY RIGHTS ARE
favor of the questioned deed stands. SOLD PRIOR TO PARTITION?
WHAT IS THE EFFECT OF EXTRAJUDICIAL Cases:
PARTITION PEBDING PROBATE?
Garcia vs. Calaliman, (April 17,1989)
Case:

68
The respondents claim that the 30-day period Baylon vs. Amador (G.R. No. 160701. February
prescribed in Article 1088 of the New Civil 9,2004)
Code for petitioners to exercise the right to
The requirement of a written notice is
legal redemption had already elapsed at the
time and that the requirement of Article 1088 mandatory. This Court has long established the
of the New civil Code that notice must be in rule that the notwithstanding actual
writing is deemed satisfied because when knowledge of a co-owner, the latter is still
notice would be superficious the purpose of entitled to a written notice from the selling co-
the law having been fully served when owner in order to remove all uncertainties
about the sale, its terms and conditions as well
petitioner Francisco Garcia went to the Office
of the Registrars of Deeds and saw for himself, as its efficacy and status.
read and understood the contents of the Private respondent was never given such
deeds of sale. written notice. He thus still has the right to
HELD: the issue has been squarely settled in the redeem said one-third portion of the subject
case of Castillo v. Samonte where the SC property. On account of the lack of written
observed: “ Both the letter and spirit of the notice of the sale by the other co-heirs, the 30-
New Civil Code argue against any attempt to day period never commended.
widen the scope of the notice specified in Exception:
Article 1088 by including therein any other kind
of notice, such as verbal or by registration. If Actual knowledge was considered an
the intention of the law had been to include equivalent to a written notice of sale because
verbal notice or any other means of the right of legal redemption was involved
information as sufficient to give the effect of more than thirteen years after the sales were
this notice, then there would have been no concluded.
necessity or reasons to specify in Article 1088 of
Primary Structures Corp. vs. Sps. Valencia (G.R.
the New Civil Code that the said notice be
No. 150060. August 19,2003)
made in writing for, under the old law, a verbal
notice or information was sufficient.” In the The thirty day period of redemption had yet to
interpretation of a related provision (Article commence when private respondent Rosales
1623 of the New Civil Code) written notice is sought to exercise the right of redemption on
indispensable, actual knowledge of the sale 31 March 1987, a day after she discovered the
acquired in some other manners by the sales from the Office of the City Treasurer of
redemptioner, notwithstanding. He or she is still Butuan City, or when the case was initiated, on
entitled to written notice, as exacted by the 16 October 1987, before the trial court. The
code, to remove all uncertainty as to the sale, written notice of sale is mandatory. This Court
its terms and validity, and to quiet any doubt has long established the rule that
that the alienation is not definitive. The la not notwithstanding actual knowledge of a co-
having provided for any alternative, the owner, the latter is still entitled to a written
method of notifications remains exclusive notice from the selling co-owner in order to
though the Codes do not prescribe any remove all uncertainties about the sale, its
particular form or written notice nor any terms and conditions, as well as its efficacy
distinctive method notification of redemption. and status. Even in Alonzo vs. Intermediate

69
Appellate Court (150 SCRA 259) relied upon by
petitioner in contending that actual
knowledge should be equivalent to a written
notice of sale, the Curt made it clear that it
was not reversing the prevailing jurisprudence.
The court simply adopted an exception to the
general rule, in view of the peculiar
circumstances of this case. In Alonzo, the right
of legal redemption was invoked several years,
not just days or months, after the
consummation of the contracts of sale but
more than years after the sales were
concluded.”

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