Succession Midterms Reviewer (New)

WILLS AND SUCCESSION REVIEWER

ATTY. SEBASTIAN

I.

GENERAL PRINCIPLES o

SUCCESSION – a mode of acquisition by virtue of which the transmissible property, rights and obligations of a person pass, upon his death, to his heirs and other successors mortis causa

OTHER MODES OF OWNERSHIP (OLD TIPS) – Art 712 NCC 1. OCCUPATION 2. LAW 3. DONATION 4. TRADITIO (DELIVERY) 5. INTELLECTUAL CREATION 6. PRESCRIPTION 7. SUCCESSION BASIS OF SUCCESSION: 1. Succession based

on family relations – By

virtue of strong family ties, persons are presumed to own property not only for themselves but also for their loved ones, children, spouse, parents and other relatives. Property owned by one is owned by all: family co-ownership. Thus, intestate succession finds support in this basis considering the rules of proximity and equal division and the other of intestate succession contemplate the relationship of heirs to the decedent in determining the priority of heirs and the amount of their respective shares 2.

Succession as an attribute of ownership of property – Even at death a person has the power to control the disposition of his property inasmuch as the power to dispose is an inherent attribute of ownership. Both testamentary and intestate succession find support in this theory since a testament is an instrument controlling the disposition of the estate while in the absence of a testament, the law on intestate succession takes it place by calling on the heirs who would have received the estate had the decedent written a will

3.

Without succession, the right of ownership is imperfect because the purpose of wealth is based on the following characteristics: a. Individuality – prevents stagnation of wealth b. Inequality – product of independence and freedom of human activities, through the labor and peculiar qualities of each one c. Transmissibility – salient feature of the right of property to transmit the same

theory – The bases for succession is a combination of both the right of the family and the right on private ownership. There is a presence of both individual and social necessity to perpetuate man’s patrimony beyond his human existence. It is an individual necessity to preserve the property generally within the family based on man’s affection for his blood relatives. It is also a social necessity to ensure the continuity of ownership because in the absence of any system of succession, upon a person’s death, property is left without a qualified owner and is considered res nullius. As such, chaos would ensue as people would kill each other to get said property Eclectic

Art774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law Art775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. CONCEPT

Succession is defined as the mode of acquiring ownership, by virtue of which the inheritance of a person is transmitted to others, either according to his express will and words, or, if by some natural or Page | 1

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc accidental circumstances he has made no will, according to his presumed will provided for by law as analogous to what he would have had he executed one. It is a mode of acquisition, by virtue of which one succeeds to the universality of the transmissible rights, active and passive, of a person who has died (Tolentino, 1992 ed., p. 9)

ELEMENTS 1. A mode of acquiring ownership, as enumerated in

NOTE:

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

4. Transmission of property, rights and obligations is by virtue of death – Death extinguishes the civil personality of a natural person depriving him of his fitness to be a subject of legal relations. Death is the operative act which opens succession hence, transmission as a consequence of succession may take place only by virtue of death

Art 712 NCC – It is a derivative mode of acquisition because upon a person’s death, his heir becomes the owner of property left behind resulting from the transmission of property, rights and obligations 2. It is a gratuitous transmission – The transmission is essentially gratuitous in nature. The transfer is solely dependent on the liberality of the decedent—clear and expressly by will in testamentary succession, and assumed and implied by law in intestate succession When an heir succeeds, the obligations he inherits may not be more than the value of property and rights received by him.

3. A transmission of property, rights and obligations to another to the extent of the value of the inheritance – By definition, the heirs do not only acquire the properties and rights of the deceased, but also the liabilities of the estate, but subject to the following limitations: a. Aggregate limitation – If there is only one heir, he will only be liable to pay the debts up to the value of the properties and rights he will receive b. Per person limitation – If one heir gets 2/3 of the estate and another gets 1/3, then their respective liabilities of the debt is prorated. Their liabilities cannot exceed what they receive

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

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

5. The transmission occurs either by will or operation of law –Succession operates to transfer title or ownership of properties, rights and obligations to another person, either by will (testate) or by law (intestate)

REQUISITES FOR TRANSMISSION OF SUCCESISONAL RIGHTS 1. The express will of the testator, within the limits prescribed by

2. 3.

law, calling certain persons to succeed him, or in the absence of a will, the provision of the law prescribing the presumed will of the decedent The death of the person whose succession is in question; and The acceptance of the inheritance by the person called to the succession

CASES: ESTATE OF HEMADY V. LUZON SURETY, 100 PHIL 388 (1956) FACTS: Luzon Surety filed a claim against the estate of the KH Hemady based on indemnity agreements (counterbonds) subscribed by distinct principals and by the deceased as surety (solidary guarantor). As a contingent claim, Luzon Surety prayed for the allowance of the value of indemnity agreements it executed. The lower court dismissed respondent’s claim on the basis that “whatever losses may occur after Page | 2

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

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

ISSUE: What obligations are transmissible upon the death of the

Francisca, the surviving child of the decedent, executed a deed of SelfAdjudication claiming that she is the only remaining relative and that she is the exclusive legal heir of the decedent. The self-adjudication was based on a sworn statement executed by the decedent bequeathing the subject property to Francisca. The said document was signed on both pages.

decedent? Are contingent claims chargeable against the estate? Under Art 1311, “Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or stipulation or by provision of law.” While in our successional system

HELD:

the responsibility of the heirs for the debts of the decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the new Civil Code expressly so provide, thereby confirming Art 1311. In Mojica v. Hernandez, the SC ruled: "Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased x x x which comes into their hands by right of inheritance; they take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights."

Hemady holds that the contingent liabilities of the decedent are part of the obligations transmitted by his death to his heirs. Accordingly, contingent claims against the estate of a deceased person arising from the decedent's contractual undertakings under various indemnity agreements executed in favor of various persons and entities are money claims which may be proved against his estate and/or heirs. These contingent claims may be proved during settlement proceedings by an indemnified surety even if in the meantime, no actual liability on the part of an indemnified surety has arisen by reason of actual payment made under the suretyship agreement NATIONAL HOUSING AUTHORITY V. ALMEIDA, 525 SCRA 383 (2007) FACTS:In 1959, LTA (now NHA) awarded several portions of land in

Beatriz

The surviving heirs of Beatriz filed a case for annulment of the Deed of Self-Adjudication. The trial court held in favor of the heirs of Beatriz and declared the deed void. Pending the litigation, Francisca filed an application with NHA to purchase the same lots, which was protested by Ameida (heir of Beatriz). NHA granted the application. Subsequently, Francisca died. Her heirs executed an extrajudicial settlement of her estate which they submitted to NHA. Said transfer of rights was approved by NHA, who then executed several deeds of sale in favor of the heirs of Francisca. Almeida sought the cancellation of the titles issued in favor the heirs of Francisca. She invoked er 40-year occupation of the disputed properties and re-raised the fact that Francisca’s deed of self-adjudication had been declared void by the trial court.

ISSUE: WON Margarita’s right (contract to sell) is part of the estate HELD:Yes. Margarita Herrera had an interest in the property and that interest should go to her estate upon her demise so as to be able to properly distribute them later to her heirs – in accordance with a will or by operation of law. The death of Margarita Herrera does not extinguish her interest over the property. Margarita Herrera had an existing Contract to Sell with the NHA as the seller. Upon Margarita Herrera’s demise, this Contract to Sell was neither nullified nor revoked. This Contract to Sell was an obligation on both parties – Margarita Herrera and NHA. Obligations are transmissible.

Laguna to Margarita Herrera. Margarita had 2 children: Beatriz Mercado Page | 3

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

Margarita Herrera’s obligation to pay became transmissible at the time of her death either by will or by operation of law. NHA cannot make another contract to sell to other parties of a property already initially paid for by the decedent. Such would be an act contrary to the law on succession and the law on sales and obligations. When the original buyer died, the NHA should have considered the estate of the decedent as the next “person” likely to stand in to fulfill the obligation to pay the rest of the purchase price. On the issue of the validity of the sworn statement as a will, The issue is for the probate court to determine, We affirm the Court of Appeals and the Regional Trial Court which noted that it has an element of testamentary disposition where (1) it devolved and transferred property; (2) the effect of which shall transpire upon the death of the instrument maker.

An affidavit made a certain disposition of property which is to take effect upon the death of the affiant. This case holds that such an affidavit is in the nature of a will and that therefore, the transmission of the property and/or rights pertaining thereto is not in the nature of an assignment. The mode of acquisition is succession. However, Chief Justice Puno also insisted that whatever property, rights and obligations which a deceased person may leave behind, the same should go to his or her estate for eventual distribution to the heirs, either by will or by intestacy. This statement is prone to misinterpretation because in Article 777, the rights to succession are transmitted to the heirs from the moment of the death of the decedent. Therefore, ownership of the inheritance is automatically and immediately transferred to the heirs. Any proceeding to settle the estate is in the nature of an administrative formality in order to ensure the payment of liabilities, the proper identification of the heirs, and the correct allocation of hereditary shares. Note that in Speed Distributing Corporation v Court of Appeals [G.R. No. 149351, 17 March 2004 (425 SCRA691)], Justice Calleja, speaking for the Court, ruled that “The general rule under the law on succession is that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are call upon to succeed by operation of law to the inheritance without the need of further proceedings.”

Compare with Reyes v. RTC Makati: This interest (referring to the coownership of the heirs over the undivided corporate shares), at this point, is still inchoate and subject to the outcome of a settlement proceedings; the right of the heirs to specific, distributive shares of inheritance will not be determined until all the debts of the estate of the decedent are paid. In short, the heirs are only entitled to what remains after payment of the decedent’s debts; whether there will be residue remains to be seen.” Art776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. INHERITANCE – It refers to the mass of property, rights and obligations left behind by the decedent  Inheritance refers to the universality or entirety of properties, rights and obligations of a decedent (objective element of succession)  Succession refers to the legal mode or manner by which this inheritance is transmitted to persons entitled to it

PROPERTIES – Regardless of the type and classification, all properties are transmissible by virtue of their inherent character and as an attribute of ownership. The law on succession does not govern property of public dominion since the legal personality of its owner, being the State, is not capable of death as understood in civil law TRANSMISSIBLE

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

TRANSMISSIBLE

OBLIGATIONS – Obligations are by nature

transmissible and may constitute part of the inheritance both with respect to the rights of the creditor and likewise the obligation fo the debtor, EXCEPT:

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

1. Obligations of the debtor which are PERSONAL because they require personal qualifications and circumstances of the debtor are extinguished by death 2. Obligations which are made non-transmissible by the WILL of the testator or by EXPRESS AGREEMENT of the parties; 3. Obligations which are made non-transmissible by EXPRESS PROVISION OF LAW

CASE: NATIVIDAD NAZARENO V. CA AND ESTATE OF MAXIMO NAZARENO, 343 SCRA 637 (2000) FACTS: Maximino Nazareno Sr. and Aurea Poblete were husband and wife. Aurea died in 1970 while Maximino Sr. died in December 1980. They had five children: Natividad, Romeo, Jose, Pacifico and Maximino Jr. After the death of Maximino Jr., Romeo filed an intestate case in CFI Cavite and was subsequently appointed as administrator of his father’s estate During the course of the proceedings, he discovered that his parents had executed several deeds of sale conveying the a number of real properties in favor of his sister, Natividad. When Romeo discovered the subsequent sale to Maximino Jr., he locked the latter out of the house. As such, Maximino Jr. brought an action for recovery of possession against Romeo. The trial court ruled in favor of Maximino Jr. Romeo, on behalf of the estate of Maximino Jr., filed an action for annulment of sale against Natividad and Maximino Jr. on the ground that the sale to Natividad in 1970 and the subsequent sale to Maximino were both void for being without any consideration

stated, however, this third-party complaint concerned Lot 3, and not Lot 3-B. The estate of a deceased person is a juridical entity that has a personality of its own. Though Romeo represented at one time the estate of Maximino, Sr., the latter has a separate and distinct personality from the former. Hence, the judgment regarding the ownership of Maximino, Jr. over Lot 3-B binds Romeo and Eliza only, and not the estate of Maximino, Sr., which also has a right to recover properties which were wrongfully disposed.

The estate of a deceased person is a juridical entity that has a personality of its own. It therefore has a right to recover property belonging to it that were improperly disposed. ATTY SEBASTIAN: Juridical persons according to Art 44: state, partnership and corporation. Estate is not a juridical person. An estate is a taxable entity

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

of

successional

rights – Once death

supervenes, the will of the testator becomes immutable, the law as to the succession can no longer be changed, disinheritance cannot be effected, and the rights to the succession acquire a character of marked permanence

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

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

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

TWO KINDS OF DEATH 1. ACTUAL DEATH – Proof of death is provided by a death certificate

2. PRESUMED DEATH – may either be ordinary or extraordinary

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

IMPORTANCE TO DETERMINE PRECISE MOMENT OF DEATH

1. Upon the moment of death, the properties left by the decedent must be transferred to another, otherwise it reverts into res nullius 2. Since t he right to succession takes place at the moment of death, rights and obligations arising therefrom must retroact to the precise moment of death

RULES IN PRESUMPTIVE DEATH a. Ordinary (Art 390 NCC) GENERAL RULE: Absence of 7 YEARS + unknown whether

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

ISSUE: WON the donation was valid HELD: No. Art. 633 of the Spanish Civil Code states that "In order that a donation of real property be valid it must be made by public instrument in which the property donated must be specifically described and the amount of the encumbrances to be assumed by the donee expressed.” A donation of real property written on a private instrument is not valid even between the parties.

the absentee still lives = presumed dead for all purposes EXCEPT: For the purpose of opening his succession, in which case the absentee is presumed dead after 10 YEARS. If disappeared after the age of 75 years, 5 YEARS will be sufficient Extraordinary (Art 391 NCC) – The following are presumed dead for ALL purposes, including the division of estate among heirs: (VA-A-D) (1) A person on board a VESSEL during a sea voyage, or an AEROPLANE which is missing, who has not been heard of for 4 YEARS since the loss of the vessel or plane (2) A person in the ARMED FORCES who has taken part in war, and has been missing for 4 YEARS; or (3) A person who has been in DANGER of death under other circumstances and existence has not been known for 4 YEARS

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

CASES: PACIO V. BILLON, 1 SCRA 284 (1961) FACTS: In 1901, Flaviano Pacio married Severa Jucutan. Herein

Faustino Nebrada, filed an action for recovery of ownership of possession of 5 parcels of land against defendants, who are the common-law wife and illegitimate children of Faustino. Del Rosario averred that plaintiff Usona nd the decedent executed a public document whereby they agreed to separate as husband and wife, and in consideration of said separation, Uson was given a parcel of land by way of alimony and in return, she renounced her right to inherit any property that may be left by Faustino upon his death.

b.

defendants were their children. Severa died in 1930 and thereafter Flaviano married plaintiff Toribia Fontanilla who bore him the other 4 plaintiffs. Respondents filed an unlawful detainer against plaintiffs concerning 2 st parcels of land. The litigants later agreed to a partition of the 1 parcel. As nd to the 2 parcel, the same was awarded to respondents on the ground that it had been donated propter nuptias to Severa in 1901 by Flaviano, who

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

Properties not validly conveyed by a person during his lifetime will form part of his estate upon his demise. Pacio holds that a parcel of land which was not validly donated (propter nuptias) by the husband to the wife did not leave his patrimony, and therefore formed part of his inheritance upon his demise. USON V. DEL ROSARIO, 92 PHIL 530 (1953) FACTS: Plaintiff Maria Uson, who was the legal wife of the decedent

ISSUE:WON Uson’s renunciation of her right to inherit property left by her deceased husband is effective Page | 6

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

HELD: No. In a number of cases the SC held that the property belongs to

The records of this case show that the death of Fortunata Barcena took

the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death. From that moment, therefore, the rights of inheritance of Uson over the lands in question became vested.

place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the Court had acquired jurisdiction over her person. If thereafter she died, the Rules of Court prescribe the procedure whereby a party who died during the pendency of the proceeding can be substituted.

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

Uson holds that the inheritance pertains to the heirs from the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to the heirs a deed for the same before his death. This transmission takes place by operation of law. BONILLA V. BARCENA, 71 SCRA 491 (1976) FACTS: Fortunata Barcena, mother of minors Rosalio and Salvacion Bonilla and wife of Ponciano Bonilla, filed an action to quiet title over some parcels of land. Fortunata died pending litigation. As such, the defendants filed a motion to dismiss on the ground that Fortunata was dead and therefore has no legal capacity to sue. When the motion was heard, the plaintiff’s counsel asked for the substitution by her minor child and husband, but the court dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.

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

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

Under Section 16, Rule 3 ROC, "whenever a party to a pending case dies xxx it shall be the duty of his attorney to inform the court promptly of such death x x x and to give the name and residence of his executor, administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff. Art 777 NCC provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. In the instant case, the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel has not only asked that the minor children be substituted for her, but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the respondent Court ought to have known that under the same Sec 17, Rule 3 ROC, the court is directed to appoint a guardian ad litem for the minor heirs.

A prior judicial declaration of heirship is not necessary to perfect the transmission. Bonilla holds that claims to or rights over property which were initiated by the decedent during his lifetime by appropriate court Page | 7

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

proceedings are not extinguished by his death. These claims or rights over property are transmitted to his heirs upon his death. BUTTE V. MANUEL UY & SONS INC, 4 SCRA 526 (1962) FACTS: During his lifetime, Jose Ramirez co-owned a property in Manila, with 5 other persons. In his last will and testament, Jose bequeathed his estate, which included his 1/6 undivided portion in the said property, to his children and grandchildren, and 1/3 of the free portion to petitioner Angela Butte. Eight years after the death of Jose Ramirez and while the intestate proceedings were still pending, one of the co-owners sold her share to respondent Manuel Uy & Sons for P500,000. After being informed of the said sale, Butte offered to redeem the 1/6 share sold to respondent. Having been refused, Butte filed an action for legal redemption. The trial court dismissed plaintiff’s complaint on the grounds that she had no right to redeem the property and that, if ever she had any, she exercised the same beyond the statutory period for legal redemptions provided by the Civil Code

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

HELD: Yes. As testamentary heir of the estate of J.V. Ramirez, she and her co-heirs acquired an interest in the undivided one-sixth (1/6) share owned by her predecessor (causante) in the Santa Cruz property, from the moment of the death of the aforesaid co-owner, J.V. Ramirez. By law, the rights to the succession of a deceased persons are transmitted to his heirs from the moment of his death, and the right of succession includes all property rights and obligations that survive the decedent. As a consequence of this fundamental rule of succession, the heirs of Jose V. Ramirez acquired his undivided share in the Sta. Cruz property from the moment of his death, and from that instant, they became coowners in the aforesaid property, together with the original surviving coowners of their decedent (causante). A co-owner of an undivided share is necessarily a co-owner of the whole. Wherefore, any one of the Ramirez heirs, as such co-owner, became entitled to exercise the right of legal redemption (retracto de comuneros) as soon as another co-owner had sold her undivided share to a stranger.

The presence of the judicial administrator is of no moment since the rights of the administrator of possession and administration of the real and personal estate of possession and administration of the real and personal estate do not include the right of legal redemption of the undivided share sold to respondent because the right to redeem only came into existence when the sale was perfected 8 years from the death of Jose Ramirez. The administrator cannot exercise the right of legal redemption since the land was sold AFTER the death of Ramirez. The right to redeem therefore pertains to the heirs and not the estate. The administrator may exercise the right to redeem only if the right pertains to the estate, and this can only happen if the sale of the said portion to Uy was done BEFORE the death of Ramirez. NOTE: If one heir gets 2/3 of the estate and another gets 1/3, then their respective liabilities for the debt of the deceased is PRO-RATED. Their liabilities cannot exceed what they receive.

The right of legal redemption under Art1620 NCC is property. Thus, where a decedent dies without having exercised a right of redemption (and provided it has not expired), the said right shall be transmitted to his heirs upon his death. In this event, the right of redemption is part of the inheritance. However, where the right of redemption was acquired after the death of the decedent, the same pertains to the heirs directly in their individual capacities, and not derivatively from the decedent. Butte makes a clear distinction as to when the right of redemption is part of the hereditary estate, and when it is not. Accordingly, Butte clarifies the issue as to who may exercise the right of redemption. DE BORJA V. VDA DE BORJA, 46 SCRA 577 (1972) FACTS: Francisco De Borja, upon the death of his wife Josefa, filed for probate of her will. When the will was probated, Francisco was appointed as executor and administrator while his son Jose de Borja was appointed co-administrator. Subsequently, Francisco married Tasiana (respondent). Before the estate of Josefa was settled, Francisco died. Tasiana then instituted testate proceedings wherein she was appointed special administratrix.

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

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

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

De Borja must be distinguished from the prohibition against disposicion captatoria in Art 875 NCC. Likewise, it must be reconciled with the provision of Article 784 which states that the making of a will is a strictly personal act of the testator.

ISSUE: WON the compromise agreement was valid HELD: Yes. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as hereditary share in decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest x x x, there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. Since the compromise contract was entered into by and between "Jose de Borja, personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco vda. de Borja," it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extra judicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings.

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

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

GO ONG V. COURT OF APPEALS, 154 SCRA 270 (1987) An heir may encumber his share in the estate during settlement proceedings, even without prior approval of the court. Go Ong holds that the substantive rights of the heir cannot be impaired by the provisions of the Rules of Court. Also, Go Ong holds that pending settlement proceeding, the half share of the surviving spouse in the conjugal estate is freely alienable by said surviving spouse. LEE V. RTC MAKATI BR 85, 423 SCRA 497 (2004) FACTS: Dr. Juvencio Ortanez owned 90% shares in the Philippine International Life Insurance Company Inc (Philinterlife). He was survived by his legal wife (Juliana Salgado), 3 legitimate children (Jose, Rafael and Antonio) and five illegitimate children (Ma. Divina, Jose, Romeo, Enrico Manuel and Cesar). Petitions for the administration of the intestate estate of the Dr. Ortanez were filed. Pending the appointment of a regular administrator, brothers Rafael and Jose were named joint special administrators of their father’s estate. Ma. Divina filed a petition before the court to be appointed as special administrator of the Philinterlife shares of stock which was granted by the intestate court. Unfortunately, however, the writ of execution was not enforced due to the resistance of herein petitioners. Page | 9

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

Juliana and her children, without securing court approval, executed an extrajudicial settlement of the estate of Dr. Ortanez (including the Philinterlife shares), portioning the estate among themselves. Subsequently, Juliana sold half of Philinterlife shares to FLAG. Rafael filed a motion for the approval of the deeds of sale of the Philinterlife shares and the release of Ma. Divina as special administrator thereof. The intestate court denied the motion and held that the sale of the said shares were null and void. Meanwhile petitioner Lee as president of FLAG, increased the authorized capital stock of Philinterlife, diluting in the process the 50.725% controlling interest of the decedent.

ISSUES: 1. WON the sale executed by juliana in favor of flag is valid; 2. WON the probate court can execute its order nullifying the sale 3. WON FLAG may increase the authorized capital stock of philinterlife

final adjudication requires court approval and (2) any unauthorized disposition of estate property can be annulled by the probate court, there being no need for a separate action to annul the unauthorized disposition. 2. Yes. The intestate court has the power to execute its order with regard to the nullity of an unauthorized sale of estate property, otherwise its power to annul the unauthorized or fraudulent disposition of estate property would be meaningless. In other words, enforcement is a necessary adjunct of the intestate or probate court’s power to annul unauthorized or fraudulent transactions to prevent the dissipation of estate property before final adjudication. 3. No, FLAG, who purchased the shares from Juliana, cannot increase the authorized capital stock to the detriment of the private respondents. It is a well-settled principle that the sale of any property of the estate by an administrator or prospective heir without order of the probate or intestate court is void and passes no title to the purchases.

HELD: 1. No, the sale is void. An heir can sell his right, interest, or participation in the property under administration under Art. 533 Civil Code which provides that possession of hereditary property is deemed transmitted to the heir without interruption from the moment of death of the decedent. However, an heir can only alienate such portion of the estate that may be allotted to him in the division of the estate by the probate or intestate court after final adjudication, that is, after all debtors shall have been paid or the devisees or legatees shall have been given their shares. This means that an heir may only sell his ideal or undivided share in the estate, not any specific property therein. In the present case, Juliana Ortañez and Jose Ortañez sold specific properties of the estate (1,014 and 1,011 shares of stock in Philinterlife) in favor of petitioner FLAG. This they could not lawfully do pending the final adjudication of the estate by the intestate court because of the undue prejudice it would cause the other claimants to the estate, as what happened in the present case. It has been settled in earlier cases that (1) any disposition of estate property by an administrator or prospective heir pending

The decision in Lee is consistent with the law. However, Court omitted to state a very important reason why no heir can sell any specific property of the estate prior to the final settlement of the estate without court approval. The reason is that prior to the partition of the estate among the heirs, all of the heirs are co-owners of the inheritance, each having an ideal or pro indiviso share therein. This co-ownership prevents any heir from alienating a specific property without court approval, because all other co-heirs have an interest in each of the specific property of the estate. It is only upon the partition of the estate that each of the heirs may probably acquire absolute title to specific properties. HEIRS OF SPOUSES SANDEJAS V. LINA, 351 SCRA 183 (2001) In this case, Justice Panganiban correctly classified the transaction between Buyer and Seller as a conditional sale, thereby correcting the CA’s findings that the transaction was a contract to sell. Justice Panganiban correctly distinguished between a contract to sell (wherein the transaction is subject to the positive suspensive condition that the buyer will deliver the purchase price) from a conditional sale (wherein the obligation of the seller to Page | 10

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

execute the deed of sale is conditioned upon the procurement of the approval of the intestate court). Thus, when the intestate court approved the sale of the property, the condition of the sale was fulfilled and the Seller and the Buyer are obligated to perform their respective obligations under the contract. The Court reiterates the basic rule that an heir may sell his ideal share of the inheritance. Court approval is not necessary before the heir could sell. Judicial approval cannot adversely affect the substantive right of the heir to dispose his own pro indiviso share in the co-heirship or co-ownership. As to the sale of the entire property to the buyer, Justice Panganiban correctly ruled that the pro-indiviso shares of the non-selling heirs should be excluded from the sale. Hence the transaction between Eliodoro Sandejas Sr. and Alex Lina cannot extend beyond Eliodoro’s undivided interest in the property. REGANON V. IMPERIAL, 22 SCRA 80 (1968) The undivided share of an heir in the inheritance may be levied upon and/or garnished by an unpaid creditor in order to satisfy a judgment debt of the said heir. The fact that the hereditary estate has not been divided among the heirs is of no consequence, particularly if heirship is not disputed and the estate is not burdened by any debt. This is a necessary consequence of the automatic transmission of ownership under Article 777. It was argued that the property comprising the hereditary estate was in custodia legis and therefore could not be levied upon, garnished, or be subject to execution. It must be noted that since the guardianship proceeding terminated ipso facto upon the demise of the ward, and that the ownership of the same transferred to the heirs from the moment of such death, the argument was devoid of merit. It must be borne in mind, however, that prior to the final distribution of the hereditary estate among the heirs, an unpaid creditor may not attach or garnish a specific property forming part of the estate. The attachment or garnishment must refer to the hereditary share of the debtor-heir. And in any event, the attachment or garnishment will be effective as regards the

properties which may eventually be allocated to the debtor-heir pursuant to partition. SALVADOR V. MARIA, 20 SCRA 603 (1967) While the rights to succession are transmitted from the moment of death of the decedent, Salvador holds that the right of an heir to his distributive share thereto is not determinable until all the estate liabilities have been paid. Until then, the right of an heir to his share is not demandable, and is subject to the existence of a residue after the payment of debts. Salvador further holds that the proceeds of the sale of a property forming part of the estate, likewise forms part of the estate. RAMIREZ V. BALTAZAR, 24 SCRA 918 (1968) The heirs are, pending judicial confirmation of heirship, precluded from commencing an action arising out of the rights belonging to the deceased. The rule is necessary for an orderly administration of the estate of the deceased person. Therefore, as a rule the power to commence suit in behalf of the estate is generally given only to the administrator. However, where the administrator fails or refuses to act, or cannot be expected to act in a particular circumstance, then by way of an exception to the rule, the heirs may commence the necessary action even if in the meantime, their heirship has not been judicially confirmed. In general, the rights to the succession are transmitted from the moment of death of the decedent. The right to commence suit is not, however, one of those rights granted to the heirs, pending judicial confirmation of heirship. PUNO V. PUNO ENTERPRISES, 599 SCRA 585 (2009) FACTS: Carlos Puno, an incorporator of respondent Puno Enterprises Inc, died in June 1963. Petitioner Joselito Muni Puno, claiming to be an heir of the decedent, filed an action for specific performance against the respondent. Petitioner averred that he is the son of the deceased with the latter’s common-law wife, Amelia Puno. As surviving heir, he claimed entitlement to the rights and privileges of his father as stockholder of respondent. Thus, he prayed that respondent allow him to inspect its corporate books and render an accounting of all the transactions it entered into from 1962 Page | 11

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

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

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

corporation’s books and receive dividends on the stocks owned by Carlos L. Puno.

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

A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of the certificate.

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

In any case, Sec 74 and 75 of the Corporation Code enumerate the persons who are entitled to the inspection of corporate books. The stockholder’s right of inspection of the corporation’s books and records is based upon his ownership of shares in the corporation and the necessity for self-protection. After all, a shareholder has the right to be intelligently informed about corporate affairs. Such right rests upon the stockholder’s underlying ownership of the corporation’s assets and property.

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

HELD: No. Petitioner failed to establish the right to inspect respondent

Upon the death of a shareholder, the heirs do not automatically become stockholders of the corporation and acquire the rights and privileges of the deceased as shareholder of the corporation. The stocks must be distributed first to the heirs in estate proceedings, and the transfer of the stocks must be recorded in the books of the corporation. Sec 63 of the Corporation Code provides that no transfer shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation. During such interim period, the heirs stand as the equitable owners of the stocks, the executor or administrator duly appointed by the court being vested with the legal title to the stock. Until a settlement and division of the estate is effected, the stocks of the decedent are held by the administrator or executor. Consequently, during such time, it is the administrator or executor who is entitled to exercise the rights of the deceased as stockholder. Thus, even if petitioner presents sufficient evidence in this case to establish that he is the son of Carlos L. Puno, he would still not be allowed to inspect respondent’s books and be entitled to receive dividends from respondent, absent any showing in its transfer book that some of the shares owned by Carlos L. Puno were transferred to him.

SANTOS V. LUMBAO, 519 SCRA 408 (2007) Santos explains in very specific terms the rights of the co-heirs, as coowners of the estate of a deceased person. The decision specifically refers to a parcel of land which, upon the death of the decedent, passed in coownership to her children. The dictum in this case should be compared to the ponencia of Justice Brion in Reyes v Regional Trial Court of Makati, infra, where he stated: “In the present case, each of Anastacia’s heirs holds only an undivided interest in the shares. This interest, at this point, is still inchoate and subject to the outcome of a settlement proceedings; the right of the heirs to specific, distributive shares of inheritance will not be determined until all the debts of the estate of the decedent are paid. Art778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed Page | 12

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

TESTATE SUCCESSION – occurs when the person dies with a valid will

INTESTATE SUCCESSION – occurs when (a) the decedent dies without leaving a will; (b) he dies and leaves a void will; or (c) he dies and leaves a totally valid but inoperative will

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

Art779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. TESTAMENTARY SUCCESSION – Occurs when a person dies with a will that is executed in compliance with the formalities required by law.

Art 780. Mixed succession is that effected partly by will and partly by operation of law. MIXED SUCCESSION – Occurs when a decedent leaves a will which only disposes some of his properties, thus the remainder of his estate would have to be distributed in accordance with the law on intestate succession

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

OTHER CLASSIFICATION OF SUCCESSION FOUND IN FAMILY CODE 1. Contractual Succession (Art 84 FC) – Marriage settlement, which affianced persons are authorized to execute before the celebration of the marriage, stipulating conditions for the conjugal partnership with respect to present and future

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

Art 84 FC. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. The 2nd paragraph of Art 84 FC provides that donations of future property between spouses shall be governed by the provisions on testamentary succession and formalities of will. This implies that there are two kinds of donations in an antenuptial contract donation inter vivos (1st par Art 84) and mortis causa (2nd par Art 84)

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

IMMUTABILITY OF SYSTEM OF PROPERTY RELATION General Rule: Sale and donation between husband and wife is prohibited

Reasons: (a) To prevent commission of fraud or prejudice to third persons (e.g., creditors) (b) To prevent one from unduly influencing the other (c) To avoid indirect donations or circumventing the laws on the property regimes of spouses (most important reason)

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

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

Art 50 FC. The effects provided for by paragraphs (2), (3), (4) and (5) of Art 43 and by Art 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Art 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Art 102 and 129. Art 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

Art 50 FC provides two instances where the law requires the payment of legitimes prior to the death of the person who is supposed to pay such: (a) Annulment of marriage (Art 45 FC) (b) Petition for declaration of nullity of marriage (Art 40 FC) Upon the declaration of nullity or annulment of the marriage, the spouses must immediately pay to their children their respective presumptive legitimes. In this sense, succession takes place without the element of death

Art 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. Accessory follows the principal – Art 781 is not only superfluous, it also creates an erroneous concept of inheritance. Even without this article, an heir would be entitled to the accessions and fruits which have accrued since the death of the decedent, by virtue of the right of accession. Since ownership is vested in the heir from the moment of death of the predecessor, necessarily all accessions subsequent to that moment must belong to such heir. The accession to such property is not transmitted by death; it is acquired already by virtue of the right of ownership which is vested from the moment to the predecessor’s death in the successor. (Tolentino, p.24)

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

CASE: BLAS V. SANTOS, 1 SCRA 899 (1961) FACTS: Simeon Blas contracted two marriages, namely: With Marta Cruz, with whom he had three children; and upon the death of Marta, Simeon married Maxima Santos. At the time of the second marriage, no liquidation of the properties acquired by Simeon and Marta was Page | 14

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

made. On Dec. 26, 1936, a week before his death on January 9, 1937, Simeon executed a last will and testament stating that one half of the properties constitutes the share of his wife, Maxima. Simeon also caused the preparation of a document, signed by Maxima, that she has read the Last will and testament of Simeon and promised to abide by the terms. She also stated that one half of her share will go to the heirs and legatees or beneficiaries named in the will of the husband and the rest, she can give to whoever she wishes. This document was prepared at the instance of Simeon since the conjugal properties of the first marriage had not been liquidated. Simeon likewise wanted to prevent his heirs by his first marriage from contesting his will and demanding liquidation of the conjugal properties acquired during the first marriage, and an accounting of the fruits and proceeds thereof from the time of the death of his first wife. Maxima, however, did not comply with promise.

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

HELD:

JBL REYES, CONCURRING: 1. Future inheritance is the contingent universality or complex of property rights and obligations that are passed to the heirs upon the death of the grantor. The inheritance of a person may include not only his property that he already owns at a given time, but also his future property, that is to say the property that he may subsequently acquire. The inheritance or estate consists of the totality of assets and liabilities he holds at the time of his demise, and not what he possesses at some other time. 2. The Court has repeatedly sanctioned donations inter vivos wherein the donor has reserved to himself the right to enjoy the donated property for the remainder of his days, and defers the actual transfer of possession to the time of his death. 3. The provisions of “Exhibit A” is merely the method selected by the parties for carrying out the widow’s agreement to convey to the appellees the property in question without losing its enjoyment during her natural life, and does not affect the substance or validity of the transaction. To ensure the widow’s possession of the property and the perception of its fruits while she was alive, the means logically selected was to return it by will, since such a conveyance could only be operative after death.

FIRST ISSUE: No. The heirs of Simeon Blas and his wife Marta Cruz can no longer make any claim for the unliquidated conjugal properties acquired during said first marriage because the same were already included in the mass properties constituting the estate of the deceased Simeon Blas and in the adjudications made by virtue of his will.

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

ISSUES: 1. WON the heirs of Simeon Blas and wife Marta Cruz can make any claim for the unliquidated conjugal properties acquired during their marriage. 2. Is “Exhibit A” a valid and enforceable contract?

SECOND ISSUE: Yes, “Exhibit A” appears to be a compromise as defined in art. 1809 of the Civil Code of Spain, in force at the time of the execution of the document, which provides as follows: “Compromise is a contract by which each of the parties in interest by giving, promising or retaining something avoids the provocation of a suit or terminates one which has already been instituted.” The agreement or promise that Maxima Santos made in “Exhibit A” is to hold one-half of her share in the conjugal assets in trust for the heirs and legatees of her husband in his will, with the obligation of conveying the

The promise does not refer to any properties that the maker would inherit upon the death of her husband. The document refers to existing properties which she will receive by operation of law on the death of her husband, because it is her share in the conjugal assets. ATTY SEBASTIAN: It is a UNILATERAL contract because there is a consideration (the forbearance of Marta’s children); unilateral consent and object (Maxima’s share in the conjugal assets)

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

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

LEGATEE VS DEVISEE – A legatee is one who is given a gift of personal property by will; a devisee is one to whom real property is given by will. There is a devisee or a legatee only in testamentary succession.

HEIRS AND DEVISEES/LEGATEES DISTINGUISHED HEIRS Succeed to an indeterminate or aliquot portion Universal title Succeed by means of a will or by operation of law

Art782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.

IMPORTANCE OF DIFFERENCE – The difference in treatment lies in the concept of preference which entitles a person to a superior right over all others with respect to a specific property. when a testator distributes an estate by way of legacies and devises, he grants particular properties to designated beneficiaries. On the other hand, when a testator merely designates heirs to his estate, the latter will only divide whatever is left behind after the distribution of the legacies and devises

HEIR – The term “heir” includes all relatives who succeed by virtue of the laws of intestate succession, as well as all persons, whether relatives or not, who take what might be called the residuary estate under a will.  An heir is anyone who succeeds to the whole or to a portion or fraction of the inheritance, whether he succeeds by virtue of a will or by intestacy.

KINDS OF HEIRS 1. Compulsory heirs – Those who succeed BY FORCE OF

2.

3.

LAW to some portion of the inheritance, in an amount determined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. They succeed regardless of the will of the decedent Voluntary or testamentary heirs – Those who are instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose; their right the succession depends entirely upon the will. They succeed by reason of a will Legal or intestate heirs – Those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate which is not disposed of by will. They succeed in the absence of a will. a. Those who inherit in their own right b. Those who inherit by right of representation

DEVISEES OR LEGATEES Succeed to Individual items of property Particular title Succeed by means of a will

II.

TESTAMENTARY SUCCESSION A. WILLS Art783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. WILL – A will is an act whereby a person controls to a certain degree the disposition of his estate after his death. It is an act by which a capacitated persons disposes of his property and rights or declares or complies with the duties to take effect after his death  A will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights or declares or complies with duties to take effect after his death (Tolentino, p. 29) Page | 16

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

6. Formal – The making of a will must conform to formalities PURPOSE OF A WILL A person writes a will because he wants to control the disposition of his estate after his death. A will which is executed fro the sole purpose of recognizing an illegitimate child or for the sole purpose of requiring certain funeral rites is not a will.

KINDS OF PROPERTY DISPOSITION 1. Direct – When there is an actual provision in the will 2.

where a person identifies a certain property and gives it to a specific individual Indirect – When the will disposes of property inference or implication, such as in cases of disinheritance

LIMITATIONS TO PROPERTY DISPOSITIONS

The freedom of a person to dispose of his property by virtue of a will shall necessarily subject to the provisions of the law on legitimes. Under Art 886 NCC, a legitime is that part of the testator’s property which he cannot dispose because the law has reserved it for certain heirs who are called compulsory heirs.

CHARACTERISTICS OF THE MAKING OF A WILL 1. Statutory right – conferred by law 2. Unilateral – Only one party is necessary to make a will. 3.

4.

5.

Beneficiaries are not required to accept until testator dies; prior acceptance is ineffective. Personal – A person cannot delegate the writing or making of a will to third persons. The determination of who the beneficiaries are, what is to be given, conditions and terms, are to be personally determined by the testator Free or Voluntary – The will must be a free and voluntary act of the testator. Any vice of consent (FIVUM) makes the will void Revocable or ambulatory – Since the dispositions will only take effective upon death of the testator, he can change his mind and revoke his will any time prior to his death. No rights can be said to have been impaired.

7.

8.

prescribed by law. Holographic wills are subject to no other form, but notarial wills are required to comply with formalities found in Art 804-809 Effective mortis causa – Regardless of the tenor of the will, the effectivity of the property dispositions is effective only upon the death of the testator. If the disposition is effective immediately = DONATION Individual – The making of a will is an individual act. Art 818 is a specific prohibition on joint wills

Art784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. STRICTLY PERSONAL The making of a disposition, the expression of the will of the testator,, that is not subject to delegation. The testator cannot substitute the mind or will of another for his own. But the mere mechanical act of drafting the will may be done by a third person, inasmuch as such act does not constitute a delegation of the will or disposition. In the case of notarial wills, the testator still has to personally participate in the making of the will either by signing it in the presence of witnesses or by directing another person to sign his name as provided by Art 805 NCC.

Art785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. REASON: The matters mentioned in Art 785 are testamentary in nature; they constitute expressions of the will or disposition of the testator. Hence, following the principle stated in Art 784, they cannot be delegated to a third person

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BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc The discretionary powers of the testator to declare when or how long the designation of heir is effective cannot be delegated to another. Any limit or term affecting the designation is as personal as the designation itself.

Art786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. ALLOWABLE DELEGATION Art 786 NCC provides that the distribution of a specified sum to a specified class of people can be entrusted to a third person. This is allowed because testamentary discretion had already been exercised and what is merely delegated is the implementation of such.

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

Art787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. PROHIBITED DELEGATION The determination as to the effectiveness of a particular testamentary disposition cannot be delegated without violating the personal characteristic of a will. To delegate to a third person the power to determine whether or not a testamentary disposition is to be operative is in effect delegating the power to make the testamentary disposition.

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

PURPOSE: The main purpose is to ascertain the meaning and intent of the testator in the will. In construing the provisions of the will, substance rather than form must be regarded and the instrument should receive the most favorable construction to accomplish purpose intended by the testator. Thus, the intention of the testator is controlling; as such, it is necessary to interpret the intention rationally and in such a manner as not to render ineffective the testamentary disposition.

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

EXCEPTION:

In case of doubt, the intent of the testator must

prevail.

Art789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations KINDS OF AMBIGUITIES 1. Latent or Intrinsic – One which appears upon the face of the instrument o When there is an imperfect description or when no person or property exactly answers the description a. Latent as to PERSON – “I institute ¼ of my estate to my first cousin Jose” and the testator has more than one first cousin named Jose b. Latent as to PROPERTY – “I devise to my frist cousin Jose my fishpond in Roxas City” and the testator has more than one fishpond in Roxas City

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

2. Patent or extrinsic – One which cannot be seen

GENERAL RULE: Anything reduced into writing is supposed

from mere perusal or reading of the will, but appears only upon consideration of extrinsic circumstances o When an uncertainty arises upon the face of the will, as to the application of any of its provisions a. Patent as to PERSON – “I institute ¼ of my estate to some of my first cousins.” b. Patent as to PROPERTY – “I bequeath to my cousin Jose some of my cars In both cases, the ambiguity is evident from a reading of the testamentary provisions themselves; the ambiguity is patent (patere – to be exposed)

to contain all such terms and conditions of the agreement. Therefore, as to the parties and their successors in interest, there can be no evidence as to their agreement other than the written instrument itself, subject to certain exceptions.

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

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

EXCEPTIONS: a. If there is an intrinsic ambiguity, mistake or imperfection in the agreement;

b. The failure of the written agreement to express the true intent and agreement of the parties thereto

c. The validity of the written agreement; or d. The existence of other terms agreed to by the parties or

REASON: Because human memory is not reliable.

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

REMEDIES

Since the mistake came from the testator, the solution to resolve the mistake must come from the testator by determining the testator’s intent when the disposition was made. 1. Inspect the instrument – Read the entire will to find the intent since there by be other provisions in the will that will help in the construction of ambiguous provisions 2. Resort to extrinsic evidence – Resort to extrinsic evidence, except testimonies of the testator himself or oral declarations, if the intention of the testator is not readily ascertainable from simply reading the whole will. The extrinsic evidence referred to in this article is that circumstantial evidence that may help reveal testamentary intent.

PERTINENT PROVISIONS IN THE RULES OF COURT ON EVIDENCE 1. PAROL EVIDENCE RULE (Sec 9 Rule 130 ROC)]

2.

Parol evidence is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein. DEADMAN’S STATUTE (Sec 23 Rule 130 ROC)– In an action where a claim is filed against the estate, where the plaintiff is the claimant and the defendant is the executor, both parties are prohibited to testify as to something which the deceased said in his lifetime.

REASON: A dead man cannot refute a tale. Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: Page | 19

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

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term “agreement” includes wills. Section 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. Section 11. Instrument construed so as to give effect to all provisions. — In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Technical words are interpreted in their technical sense unless testamentary intent provides otherwise OR it can be proven that the testator was unfamiliar with such technical word and he made the will unassisted by any technical person.

Art791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. PREFERENCE OF TESTACY OVER INTESTACY

Art790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

The mere fact that a will was executed already gives preference to testamentary succession. In interpreting a will, the cardinal rule to be followed is the testator’s intent.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense.

CASE: DIZON-RIVERA V. DIZON, 33 SCRA 554 (1970) FACTS: Agripina Valdez died and was survived by 7 compulsory heirs

ORDINARY INTERPRETATION Non-technical words are interpreted ordinarily unless testamentary intent provides otherwise AND that such peculiar or different interpretation can be ascertained.

ROC ON INTERPRETATION OF DOCUMENTS Section 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in their primary and general

(6 legitimate children and 1 legitimate grandchild as heir of a predeceased legitimate child). She left a will. One of the compulsory heirs Marina Dizon was appointed executrix. The real and personal properties of the testatrix had a total appraised value of P1,811,695. The legitime of each of the compulsory heirs amounted to P129,362.11. In her will, Agripina commanded that her property be divided in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties to her children and grandchildren. Marina and Tomas were given more than their respective legitimes, while the rest received less than their respective legitimes.

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

Marina submitted a project of partition, adjudicating the properties given them in the will, plus cash and/or properties to complete the respective legitimes to P129,254.96 of those given less while Tomas and Marina must pay in cash or property an amount necessary to complete the prejudiced legitimes. The oppositors, who were the other 6 compulsory heirs (including Tomas), submitted their counter-project of partition where they proposed the reduction of all testamentary dispositions proportionately to the value of ½ of the entire estate corresponding to the free portion and the other half to be divided among the 7 compulsory heirs as constituting their legitimes.

ISSUE: WON the testamentary dispositions in the will are in the nature of devises imputable to the free portion of the estate and therefore subject to reduction

HELD: Yes. Art 788 and 791 NCC are applicable in this case. The testamentary disposition made by the testatrix was in the nature of a partition of her estate by will. The testatrix specified each real property in her estate and designated the particular heir among her 7 compulsory heirs and 7 other grandchildren to whom she bequeathed the same. This was a valid partition of her estate as contemplated in Art 1080 NCC, providing that “should a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.” This right of a testator to partition his estate is subject only to the right of compulsory heirs to their legitime. The testamentary dispositions of the testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of nd the estate, for the 2 par of Art 842 NCC precisely provides that “one who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of the said heirs.

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

the compulsory heirs. Thus, when the will clearly indicates “favored” heirs, then the interpretation must be in such a way that such others remain “favored” than the others.

The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. Of the two projects of partition submitted by the contending parties, that project which will give the greatest effect to the testamentary disposition should be adopted. Thus, where the testatrix enumerated the specific properties to be given to each compulsory heir and the testatrix repeatedly used the words "I bequeath" was interpreted to mean a partition of the estate by an act mortis causa, rather than as an attempt on her part to give such properties as devises to the designated beneficiaries. Accordingly, the specific properties assigned to each compulsory heir were deemed to be in full or partial payment of legitime, rather than a distribution in the nature of devises. The tenor of the decision notwithstanding, it is important to note the provision of Art 886. Art 886 is couched upon a negative prohibition "cannot dispose of". In the will under consideration, the testatrix disposed of practically her entire estate by designating a beneficiary for each property. Necessarily, the testamentary dispositions included that portion of the estate called "legitime." It is thus imperative to reconcile the tenor of Art 1080 (which is the basis of the following decision) with Art 886. VDA DE VILLAFLOR V. JUICO, 4 SCRA 550 (1962) FACTS: On October 9, 1908 Don Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Doña Fausta Nepomuceno, one half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor Don Nicolas died in 1922, without begetting any child with his wife Doña Fausta. The latter, already a widow, thereupon instituted special proceedings for its settlement of her husbands’ estate and that proceeding, she was appointed judicial administratrix. She submitted a project of partition, and the probate court approved the project of partition and declared the proceedings closed. Page | 21

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

As the project of partition, Exhibit “E” now shows Doña Fausta received by virtue thereof the ownership and possession of real and personal properties mentioned and referred to in clause with the will. The order approving the project partition (Exhibit C), however, expressly provided that approval thereof was “ sin perjuico de los disperesto in al clausala 8.0 del testamento de Nicolas Villaflor”. In 1956, Doña Fausta died without having begotten any child with the deceased Don Nicolas. The estate is being settled in a special proceeding with its defendant Delfin N. Juico, as the duly appointed and qualified judicial administrator. The plaintiff Leonor Villaflor Vda. De Villanueva is admitted to be the same Leonor Villaflor mentioned by Don Nicolas in his will as his “sobrina nieta Leonor Villaflor”. (niece)

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

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

The following decision illustrates the application of the rule that the language of a will must be interpreted in such a way that every expression therein must be given some effect. Therefore, an interpretation which suppresses a provision cannot be adopted if there is another way of construing the said dispositions. Art792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made

such other dispositions if the first invalid disposition had not been made. The general rule is that each disposition is independent from another such that if one is invalidated then the other remains unaffected. If it can be shown that the testator made the dispositions interrelated or interconnected, then the invalidity of one invalidates the other.

Art793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. PURPOSE: The main purpose is to prevent at least partial intestacy since the assets a testator can dispose of are only those which are in existence at the time of the execution of the will. All assets subsequently acquired after the making of the will would have to pass by intestate succession. EXCEPT: Unless a contrary intention expressly appears on the will.

EXAMPLE: Any OTHER property not included in this will shall pass to the above-named heirs in the following proportion… Art 793 pertains to the properties acquired by the testator after the execution of the will WHEREAS Art 781 NCC pertains to properties which accrued after the death of the testator. Art 793 allows the complete distribution of the testator’s estate to include those properties not yet acquired during the execution of the will.

Art794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. When the testator does not state the extent of interest that he gives to the legatee or devisee in the property transmitted, it is understood that his whole interest passes, no more and no less. Under Art 794, the testator may manifest his intention to convey a less interest; and under Art 929, he may expressly convey a larger interest. In such cases, the intention of the testator prevails. Page | 22

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

1. As to the TIME of execution – Art 795: The validity

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

2.

INTRINSIC VALIDITY

3.

This is concerned with substantive validity of such as issues concerning legitimes, capacity of heirs, preterition, collation, etc. As to TIME, the

law operating at the time of death shall be the governing law because at the time of the execution of the will, no right has yet accrued to those who were designated as beneficiaries of the will and as such, no right may be violated by a subsequent amendment of the law.

BASIS Art16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. EXTRINSIC VALIDITY

This refers only to formal validity which the law requires, i.e. the formalities of the will. As to the formal validity with respect to time, the law enforced at time of the execution of the will is the governing law because this is the fundamental requirement of due process. One cannot be required to anticipate future law when making a will, otherwise it would be very unreasonable and would not pass the test of due process.

4.

of a will as to its form depends upon the observance of the law in force AT THE TIME IT IS MADE. As to a Filipino in a FOREIGN country – Art 815: He is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. As to alien who is ABROAD – Art 816: The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes As to an alien who is in the PHILIPPINES – Art 817: A will made in the Philippines by a foreigner which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be provide and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.

EFFECTS OF A NEW LAW CHANGING THE FORMALITIES OF A WILL 1. AFTER THE DEATH of the testator, the rules have no effect 2.

because the heirs already have a vested right. BEFORE THE DEATH of the testator, the rules have no effect EXCEPTION: If the new law expressly provides for a retroactive application EXCEPTION TO THE EXCEPTION: When the heirs already have a vested right

CONFLICTS RULE 1. Filipino a. b. c. d.

Philippine law (because of the Nationality rule) Law of execution Law of the place where he was at the time of his death Lex loci celebrationis – Law where the contract celebrated

is

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

2. Foreigner owning Philippines

properties

in

the

Alien living abroad but with properties in the Philippines – either: Philippine laws, lex loci celebrationis, nationality law or domiciliary law b. Alien residing in the Philippines with properties in the country – domiciliary law and nationality law Where nationality laws cannot apply, the domiciliary law shall apply.

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

a.

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

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

ISSUE: Which law should apply—Texas law or Philippine law HELD: Texas law should apply. Art 16 par 2 and Art 1039 NCC state that the national law of the decedent, in intestate or testamentary successions, shall govern with regard to the four items: (a) order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. The parties admit that the decedent was a resident of Texas and under the laws of Texas there are no forced heirs or legitimes. Accordingly, the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law and not the Philippine law.

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

B. TESTAMENTARY CAPACITY AND INTENT Art797. Persons of either sex under eighteen years of age cannot make a will. Art 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Art799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. TESTAMENTARY CAPACITY – The ability to as well as the power to make a will; Fitness to make a will



This must be present EXECUTION of the will

at

the

time

of

Testamentary capacity is presumed; mere weakness of mind or partial imbecility from disease of body or from age does not render a person incapable of making a will.

NOTES: Only natural persons can make a will 1. Even spendthrifts are not barred from making a will 2. Those under civil interdiction are not disqualified to make a will (they are only disqualified to make disposition inter vivos)

REQUISITES OF TESTAMENTARY CAPACITY 1. AGE – At least 18 years of age Page | 24

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

The required age is reached at the commencement of the day preceding the anniversary of the birthday, i.e. it is sufficient that the last day of the 18th year shall have commenced. No fractions of a day OF SOUND MIND – Soundness of mind is required at the time of the execution of the will. It does not mean complete possession of physical and mental faculties; a person possesses testamentary capacity as long as he has the ability to know the nature of his estate, the proper objects of his bounty, and the character of the testamentary act

o

2.

REQUISITES: a. Nature of the estate – Testator should have a

fairly accurate knowledge of what he owns; he must be able to comprehend their kind and character to be able to designate them  The more he owns, the less accurate his knowledge of his estate is (as expected) b. Proper objects of his bounty – Testator should know, under ordinary circumstances, his relatives in the most proximate degrees, his knowledge expectedly decreasing as the degrees become more remote.  Proper objects are those people who have a legitimate claim to the estate, either by right or out of gratitude

c. Character

of

the

testamentary

act

in order that he might sign, is by itself sufficient to establish a presumption of lack of testamentary capacity, when there is sufficient evidence of the mental sanity of the testator at the time of the execution of the will. On the other hand, the absence of testamentary capacity is not equivalent to insanity; actual insanity need not exist in order that a person may be said to lack testamentary capacity. It is enough that the mental condition be such that there is a want of understanding of the nature and consequences of the disposition of the will 1. Senile Dementia – Mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity. o Senile dementia (peculiar decay of the mental faculties whereby a person afflicted is reduced to second childhood), not senility is the one that produces testamentary incapacity. To constitute complete senile dementia, there must be such failure of the mind as to deprive the testator of intelligent action 2. Infirmity or Disease – Physical infirmity or disease is not tantamount to testamentary incapacity 3. Mental Delusions – Not every mental delusion will render one incapable of making a will.

o 4. Mental

–

Testator must have the mental capacity to understand the nature of his act i.e., that the instrument is an act of disposition which will take effect mortis causa

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

EFFECT OF CERTAIN INFIRMITIES

Neither sickness, old age, deafness, senile debility, blindness, nor poor memory, nor the fact that somebody had to guide the testator’s hand

5.

disease or Insanity – There may be mental incapacity to make a will without actual insanity o Persons suffering from idiocy (those congenitally deficient in intellect) and imbecility (those who are mental deficient as a result of disease) do not possess the necessary mental capacity to make a will o An insane delusion which will render one incapable of making will is one who beliefs in things which do not exist, and which no rational mind would believe to exist o To justify the setting aside of a will, it must be shown that the will was the product or offspring of the delusion, or at least, that it was influenced by the delusion Deaf, dumb and blind – Art 807 NCC recognizes the capacity of a deaf-mute to make a will, even if he does not Page | 25

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc know how to read and write; and Art 808 accepts the incapacity of a blind testator to make an ordinary or attested will. o If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (Art. 807) o If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (Art 808) 6. Eccentricities and Prejudices – An eccentric may make a valid will, despite the peculiarity of his conduct as long as he understands the contents of the instrument and wishes it to constitute his testamentary act. 7. Belief in Supernatural – A will executed by one under such an extraordinary belief in spiritualism that he follows blindly and implicitly supposed directions of spirits in constructing the will is not admissible to probate

8. Drugs and intoxicants GENERAL RULE: The admission of a will to probate will not be denied merely on the proof that the testator was addicted to the excessive use of liquors or drugs EXCEPTION: IF at the time of the making of the will, the testator was so much under the influence of the intoxicants or drugs as to be unable to bring to the business at hand the judgment which the law requires of a testator. bring to the business at hand the calm judgment which the law requires of a testator.

Art800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the

person who maintains the validity of the will must prove that the testator made it during a lucid interval. The presumption is that the testator is of sound mind. The obligation to prove the mental capacity of the testator rests upon those who allege such incapacity. Conclusive proof of the mental incapacity and the evident lack of reason and judgment at the time of the execution of the will must be shown before a will may be set aside on the ground of incapacity of the testator.

EXCEPTION TO THE PRESUMPTION OF SANITY It is the person who maintains the validity of the will who has to prove that the testator as of sound mind, If the testator, one month or less, before making his will was publicly known to be insane. The opinion of non-professional witnesses as to the sanity or insanity of the testator is generally permitted to be given, whether the witnesses be attesting witnesses or not of the will. In case they are not the attesting witnesses, they are required to give the reason for their opinion as to the sanity or insanity of the testator. Attesting witnesses, however, are not generally required to state the facts upon which they base their opinion; since their testimony is entitled to the highest regard (Tolentino, p. 61). The law presumes that the testator is of sound mind UNLESS: (PI-G) a. The testator, one month or less , before making his will, was PUBLICLY known to be insane; or b. He was under GUARDIANSHIP at the time of making his will (Torres and Lopez de Bueno v Lopez G.R. No. 24569, February 26, 1926).

Art801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. EFFECT OF INCAPACITY Testamentary capacity is determined at the point of the execution of the will. If at the time the will was made, the testator was qualified to make the same, but subsequently becomes incapacitated, this subsequent change in capacity does not invalidate the will. But if the Page | 26

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

testator did not have the capacity at the time of execution, the subsequent acquisition of capacity on his part does not validate the will.

Art802. A married woman may make a will without the consent of her husband, and without the authority of the court. Art803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. With the advent of the absolute community of property under the FC, Art 802 and 803 are of little application. A married woman is capacitated to make a will with no other requirements aside from the presence of testamentary capacity.

C. FORMS OF WILLS Art804. Every will must be in writing and executed in a language or dialect known to the testator. The legislature has the power to prescribe the formalities to be observed in the execution of a will, and by so doing does not interfere with the rights of an individual to dispose of his property; these technical mandates must be complied with. It is not a question of the intention of the testator or attesting witnesses, but of the intention of the legislature. Even though a person undertakes to make his will and to do certain acts with the intention of executing the same, yet if he fails to satisfy the statutory requirements as to execution, the document must be denied probate.

PURPOSE OF FORMALITIES The primary purpose for the formal requirements of wills is to regulate the making of the will which involves the transfer of real rights effective upon the death of the transferor. 1. To close the door against bad faith and fraud 2. To avoid substitution of wills and testaments; and

3. To guaranty their truth and authenticity (Abangan v. Abangan 40 PHIL 476, 1919)

MANDATORY REQUIREMENT The provisions of Article 804 are MANDATORY and failure to comply with the two requirements nullifies the will. Neither the will nor the attestation clause need to state compliance with Art 804. This can be proved by EXTRINSIC EVIDENCE.

COMMON FORMALITIES 1. Every will must be in writing – Only two wills are recognized in this jurisdiction: notarial will and holographic will. Both are required to be in writing o In ordinary (notarial) wills, it does not matter on what material it is written. It may be written by hand or typewritten o If the will is holographic, it must be written entirely in the handwriting of the testator himself o Nuncupative (oral) wills are not recognized by the NCC unlike in the Spanish Civil Code

ATTY SEBASTIAN: Wills must be in writing to prevent fraud. If nuncupative wills are allowed, it will give people an opportunity to defraud others (there will be as much allegations of oral will as there are claimants). A written will is an affirmation of the frailness of human memory

2. It must be executed dialect known to the

in a language or testator – Testator’s

knowledge or understanding of the language/dialect used need not be expressly stated in the body of the will or in the attestation clause o In the absence of contrary proof, there arises the presumption that the will was written in a language or dialect known to the testator if the will was executed in a locality where the testator was residing.

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

ATTY SEBASTIAN: The law respects the testamentary disposition of testator. The testator must be able independently ascertain (INDEPENDENT VERIFICATION) whether the will is faithful to the testator’s intent. If the will is written in a language known by the testator, there is a presumption that he understands the same. In Art 808, if the testator is blind (or illiterate) there is an additional requirement that be read twice by the witness and notary public.

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

ISSUE: WON the questioned will is spurious HELD: Yes, the will is spurious. A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void. This is consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. The NCC also requires that a will must be acknowledged before a notary public by the testator and the witnesses. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed. Thus acknowledgment in a notarial will has two-fold purpose: (1) to safeguard the testator’s wishes long after his demise, and (2) to assure that his estate is administered in the manner that he intends it to be done.

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

Lee explains the reason for the stringent formalities prescribed by law in the making of a notarial will. It is disturbing that in this decision, the court ruled that the non-notation of the residence certificates of the notarial witnesses and/or the use of the testator’s expired residence certificate are sufficient to invalidate a will. SUROZA V. HONRADO, 110 SCRA 381 (1981) FACTS: Marcelina Suroza supposedly executed a notarial will in July 1973 when she was 73 years old. The will, whichw as in English, was thumbmarked by Marcelina, who was illiterate. Upon her death, the will which bequeathed all her estate to a supposed granddaughter was presented for probate. Opposite to the probate was made by Nenita Suroza, the wife of the alleged adopted son of Marcelina on the ground of preterition of said son, Agapito, and on the ground that the will was void because Marcelina did not appear before any notary public and because it is written in English which is not known to Marcelina. The presiding judge denied the opposition of Nenita and admitted the will to probate

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

HELD:Yes. Upon perusing the will and noting the it was written in English and was thumbmarked by an obviously illiterate testatrix, respondent judge could have easily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language “understood and known “to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and “translated into Filipino language.” This could only mean that the will was written in a language not known to the illiterate testatrix, and therefore, the will is void because of the mandatory provision of Art 804 NCC that every will must be executed in a language or dialect known to the Page | 28

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

Every will must be in writing and executed in a language or dialect known to the testator. In this case, the testatrix was proved to be illiterate. However, her alleged notarial will was written in English, which in the opening paragraph of the will, was supposedly a language known to her. The contradiction in the concluding paragraph of the will clearly indicated the nullity of the purported will. Art805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

1. It must be SUBSCRIBED at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction 2. It must be ATTESTED and subscribed by 3 or more credible witnesses in the presence of the testator and of one another 3. All the pages of the will shall be numbered correlatively in letters placed on the upper part of each page 4. Each and every page of the will, EXCEPT the last, must be signed by the testator and by the instrumental witnesses on the left MARGIN 5. It must be acknowledged before a notary public by the testator and the 3 witnesses (Art 806) 6. The will must have an ATTESTATION CLAUSE which shall contain the following: a. The number of pages used upon which the will is written b. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of instrumental witnesses c. The fact that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another

INTERPRETATION OF REQUISITES

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

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments to guaranty their truth and authenticity.

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

A. SUBSCRIPTION – The manual act by the testator and his

REQUISITES FOR NOTARIAL WILLS

When an interpretation already given assures such ends, any other interpretation, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator’s last will, must be disregarded.

instrumental witness or affixing their signature to the instrument.

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

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

PURPOSE: 1. Identify the testator ; and 2. Authenticate the document.

HOW SUBSCRIBED 1. Subscription by Testator – The will that is not signed by the testator, or by some person in his presence and at his express direction, cannot be allowed to probate. Signing is making a sign, token or emblem; and what that shall be depends upon the custom of the time and place, and on the habit or whim of the individual.

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

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

Place for signature - The law expressly requires the

will to be subscribed “at the end thereof” by the testator or by his express direction.

Purpose:

to prevent any opportunity for fraud or interpolations between the testamentary dispositions and the signature. The position of the signature at the end of the will furnishes in itself intrinsic evidence of the finality or completion of intent. An instrument in the form of a will cannot be probated, if it is not signed at the end.

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

his express direction. In the absence of evidence that the testator requested the third person to sign the will for the former, the signing by a third person invalidates the will. When the evidence does not show that the signature was made at his express request, the subsequent acknowledgment by the testator of the will as his own will be sufficient signing, and it will be presumed to have been made at this direction. The fact that a third person was directed to sign the name of the testator need not appear in the will itself but may be established by extrinsic evidence. It should appear in the attestation clause which is required to state the fact “that the testator signed the will and every pager hereof or caused some other person to write his name, under his express direction.

REQUISITES: a. b. c. d. e.

It is the testator’s name that must have been written by the third person; The testator’s name must have been written in his presence; The third person must have affixed the testator’s name at his EXPRESS direction; This fact should be stated in the attestation clause; and It should take place in the presence of the instrumental witnesses.

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

END OF WILL 1ST VIEW: Refers to the physical end of the writing, or the point which is farthest removed from the beginning in point of space. 2ND VIEW: Refers to the logical end; which is the point where the testamentary dispositions terminate. The end of the will can be determined from the unmistakable sequence which the testator intended to give to the writing as revealed on the face of the instrument itself. (Tolentino, p.70). End of the will means the logical end, not the physical end of the will. Thus if a will starts on the 1st page, continues on the 3rd page, but is concluded on the 2nd page, the latter is the logical end. Page | 30

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

PURPOSES: a. b. c.

To show that the testamentary purpose therein expressed is completed; To prevent any opportunity for fraud or interpolations between the written matter and signature; and The position of the signature is an internal evidence of finality or completion of intent

ATTY SEBASTIAN: The subscription signifies the (logical end) end of the testamentary disposition of the will. Anything after the subscription is of dubious origin. If the testator add something after the end, the whole will is void. If another person added more after the end, the will becomes spurious. The testator cannot be punished for the act of the other person in tampering the will. If the testator signs the additional disposition = VOID WILL If there is no signature after the additional disposition = DISREGARD PROVISION

B. ATTESTATION – The act of three or more credible witnesses

of witnessing the execution of the will in the presence of the testator and of one another in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law (Jurado, p.60). Strictly speaking, it is the act of the witnesses and not that of the testator.  It consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact.  To attest a will is to know that it is published as such, and to certify the facts required to constitute an actual and legal publication.  To attest as witnesses to a will is to observe, perceive, discern and take notice of what is done in executing the will.



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

Purposes of Requiring Witness to Attest and to Subscribe to a Will: (IPA) a. b. c.

IDENTIFICATION of the instrument; PROTECTION of the testator from fraud and deception ; and The ASCERTAINMENT of the testamentary capacity of the testator

NOTE: If the required numbers of attesting witness are competent, the fact that an additional witness, who was incompetent also attested to the will, cannot impair the validity.

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

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

Subscription – is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. o To subscribe a paper as a will is only to write on the paper the names of the witnesses, for the sole purpose of identification. o The witnesses subscribes with his hand. o Subscribing signature may be placed anywhere in each pages of the will, preferably on the left margin.

ATTESTATON AND SUBSCRIPTION DISTINGUISHED ATTESTATION An act of the senses Mental act Purpose is to render available proof during probate of will, not

SUBSCRIPTION An act of the hand Mechanical act Purpose is identification

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

only of the authenticity of the will but also of its due execution.

Purpose in Requiring Witnesses to attest and subscribe to the will: 1) 2) 3)

The identification of the instrument The protection of the testator from fraud and deception so that he may freely and voluntarily express his testamentary intent The ascertainment of the testamentary capacity of the testator.

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

Number of Witnesses – the law requires that the will be attested and subscribed by three or more credible witnesses. It is presumed that a witness to a will has the qualification prescribed by law, unless the contrary is established. If the required numbers of attesting witnesses are competent, the fact that an additional witness, who was incompetent, also attested the will, cannot impair its validity. The same witnesses who sign on the left margin of each page of the will, presented by the testator to them as his will, must be the very ones who should sign the attestation clause, inasmuch as they alone can certify the facts to be stated in said clause, for having taken a direct part therein.

PUBLICATION OF WILL Publication – is the declaration of the testator to the witnesses that the instrument is his will. o Although there is no provision of law requiring publication, it is necessary that the witnesses should know that they are attesting a will, inasmuch as the attestation clause must state that the testator signed the “will” and that the witnesses themselves witnessed and signed the “will.” o The witnesses cannot attest to the signing of an instrument as a “will”, unless they know that it is one.

SIGNING BY WITNESSES The statute is satisfied by the witness making a mark, writing his initials, or accidentally writing some other name for his own, or even a description of himself. Any completed mark or design made by the witness upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the maker in the capacity of an attesting witness. Our law only requires the witnesses to “sign,” it is submitted that in the same manner that the testator may sign by mark, so may the witnesses.

ROLE OF WITNESSES The law requires the presence if three witnesses in the execution of wills for the primary purpose of safeguarding the authenticity of the document being signed by the testator. Since the testator who would testify as to its genuineness and authenticity will be already dead by the time the will is presented for probate, there is a need for witnesses to testify with respect to the compliance with the requirements of law in the execution of the testator’s will.

QUALIFICATIONS OF WITNESS The law provides certain qualifications and disqualifications with respect to witnesses such as soundness of mind, 18 yrs. or more, literate, not blind, deaf or dumb (Art. 820); domiciled in the Philippines (Art. 821) and not previously convicted of falsification of documents, perjury, or false testimony. The law expressly requires, as a qualification to be a witness to a will, that a person must be “able to read and write.” But so long as the witness is able to write, he does not have to sign his full name; he may sign by mark or symbol.

PURPOSE OF QUALIFICATIONS OF WITNESSES The provisions on qualifications of witnesses are not mandatory. But if the testator willfully fails to comply with them, then the will shall be denied probate. If the testator acted in good faith in selecting his witnesses and either the witnesses recant or they turn out to be unqualified during probate proceedings, the testator should not be penalized.

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

They are meant to benefit the testator such that the will may be admitted for probate provided that it is flawless at to form and there exists an independent testimony as to the due execution of the will.

IN PRESENCE OF EACH OTHER The witnesses are required to sign in the presence of the testator and of each other. The purpose of requiring witnesses to sign in the presence of the testator is to prevent another paper being substituted for the will, fraudulently; and witnesses are required to sign in the presence of each other, so that each may be a witness of the other and so as to render fabrication of testimony more difficult. o The signing of all the witnesses should constitute a single transaction and the signature of three of them in the presence of the testator and of each other will be sufficient. o In order that the signing can be considered in the presence of the testator, it is not sufficient that he is physically present, but he must know what is being done. o It is not necessary that the testator should actually see the witnesses subscribe their names to the instrument; if he is in such a position that he might see them sign if he chose, it will be presumed that he did see them sign. The act of signing must take place within the testator' range of vision. o The test to determine whether the will was attested in his presence is to inquire whether he was conscious of the presence of the witnesses and understood what they were doing when they wrote their names on the will. o The principles regarding signing in the presence of the testator apply equally to signing of the witnesses in the presence of each other.

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

the same room or within reasonable close proximity and within his hearing, they subscribe in his presence. o In the case of a blind testator, the rules would be the same as would be applied to him if he had sight or that the witnesses should occupy a position that he might see them had he the sense of sight. o They should be within the cognizance of his remaining senses, such that he know what is being done.

C. MARGINAL SIGNATURE

The law requires that “the testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign as aforesaid, each and every page thereof, on the left margin,” in the presence of one another. o The law expressly requires also the signatures of the witnesses. The failure of all the three witnesses to sign the left margin of every page even when the testator’s signature appears thereon is a fatal defect. The rule, however, should not be applied so strictly as to defeat the will of the testator. o The purpose of signature on the left margin of each and every page of the will is to avoid the substitution of any of the said sheets, thereby changing the testator’s disposition. o In a will consisting of two pages the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses.

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

NOTE: The requirement of affixing marginal signatures is MANDATORY.

EXCEPTIONS: 1) In the last page, when the will consists of two or more pages 2) When the will consists of two pages, the first which contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses and the second contains Page | 33

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc only the attestation clause duly signed at the bottom by the witnesses (Jurado, pp. 72-73). The inadvertent failure of witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify the denial of probate (Icasiano v. Icasiano, G.R. No. L-18979 June 30, 1964). The location of the marginal signatures is NOT mandatory in character, provided, of course, that such signatures are present in every page of the will, except the last. (Ibid) The words “left margin” is merely directory.

D. PAGE NUMBERING

The pages of the will must be numbered correlatively in letters. The purpose of this requirement is to afford a means for determining whether any sheet or page of the will has been removed. The principal object of the numeration of pages of the will is to forestall any attempt to suppress or substitute any of the pages thereof. The law requires that the paging be in letters i.e. “one,” “two” etc., however, any other form of writing the correlative number of the page is sufficient, provided the numbering used indicates the succession of pages and serves to prevent the loss of any of them.

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

NOTES:   

This is not necessary when the will is written on one sheet only. The requirement that the pages of the will shall be numbered is MANDATORY and not the requirement that it should be “numbered correlatively by letters.” SUBSTANTIAL COMPLIANCE with the statutory requirement is sufficient, thus, the pages need not be numbered correlatively in letters such as “one”, “two” or “three” but may be numbered by mere alphabetical letters or by Arabic Numerals, or by any form of identification.

E. ATTESTATION CLAUSE

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

Attestation Clause – is a memorandum of facts attending the execution of the will and is that part of the instrument wherein he witnesses certify that the instrument has been executed before them, and the manner of its execution. It is a certification by the witnesses that the requirements of the law for the execution of the will have been complied with. Since it is a declaration made by the witnesses and not by the testator, it need be signed only by the witnesses and not by the testator.  The will is subscribed at the end of the will by the testator alone, while the attesting witnesses sign at the end of the attestation clause.  The attestation clause duly signed is the best evidence as to date of signing.

WHERE WRITTEN Ordinary attestation clause is written immediately after the signature of the testator at the end of the will; and this clause is signed by the instrumental witnesses.

CONTENTS OF THE CLAUSE 1. The number of pages used upon which the will is written 2. That the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction and in his presence 3. That the signing by the testator, or by the person designated by him, was in the presence of the instrumental witnesses 4. That the witnesses sign the will and all the pages thereof, in the presence of the testator and of each other. It is not necessary that the attestation clause must state the names of the attesting witnesses.

Number of Pages – the attestation clause must in the first place state the number of sheets or pages used, upon which the will is written. o The evident purpose is to safeguard the document from the possibility of interpolation of additional pages or the omission Page | 34

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

o o

of some of the pages actually used. It affords additional security against the danger that the will may be tampered with. A failure to state in the attestation clause the number of sheets or pages used in the will renders such will null and void. It is not strictly required, however, that the number of pages must appear in the attestation clause only. If such number of pages appears in the face of the will, such that no proof aliunde is necessary, then there is substantial compliance with the statute.  Where the attestation clause failed to state the number of pages, it was held sufficient for the acknowledgment clause to state the number of pages and the will had actually the number of pages stated.

Signing of Will – the attestation clause is required to state “the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnesses and signed the will and all pages thereof in the presence of the testator and of each other.” o The purpose of this requirement that the testator and the witnesses signed in the presence of each other and that the fact cannot be proved by evidence aliunde, in view of the well-known unreliability of oral evidence, it is clear that a statement in the attestation clause will afford more satisfactory evidence of the fact to be proved. o The Legislature intended to exclude the evidence aliunde, tending to establish that the will has been executed and attested in conformity with the requirement of the law. If said statement appears on the face of the will itself, such that no evidence aliunde is needed, then it is valid. o Following the rule that the attestation clause should be read in its entirety, the court found that although the attestation clause did not expressly and specifically stat that the witnesses and testator signed all the pages of the will, such intention must be deduced from the entire clause. Inferences and implications are admissible to discover the intent and meaning of the

attestation clause when there is omission in the expression of such clause.

Reading of Will – Except, when the testator is blind, deaf, or a deaf-mute, the law does not require that the will be read by him or to him. It is indispensible that he should know its contents at the time of the execution. o The execution of the will raises a presumption that the testator was aware of its contents. o The fact that the will was read to the testator does not have to be stated in the attestation clause. It is enough that said fact is proved by extrinsic evidence during the probate of the will.

DATE OF WILL o

o

In an ordinary will the date is not an essential part. The law does not require an attested will be dated. An ordinary will without a date is valid and an erroneous date will not defeat the validity of a will. A holographic will has to bear a date.

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

CASES: REYES V. VDA DE VIDAL, G.R. NO L-2867 (1952) FACTS: The case concerns the admission to probate of a document purported to be the last will and testament of Maria Zuñiga Vda. De Pando, who died on October 29, 1945. A petition for the probate of the will of Maria Zuñiga Vda. De Pando was filed in the CFI of Manila. Dolores Zuñiga vda. De Vidal, sister of the deceased, filed an opposition. To prove that the will was signed by the testatrix in accordance with the law, petitioner presented the three witnesses who attested to the execution of the will. On the other hand, the oppositor presented one expert witness, Jose G. Villanueva, who made a comparative analysis of the signatures appearing in the will in relation to some genuine signatures of the deceased and reached the conclusion that the hand that wrote the signatures of the deceased appearing in the will is not the same hand that wrote the genuine signatures he had examined. The lower court disallowed the will on the ground that the Page | 35

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

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

ISSUES: 1. WON the signatures of the deceased appearing in the will are genuine. 2. WON there is evidence to show that the testatrix knew the language in which the will was written 3. WON the testatrix was of sound and disposing mind when she signed the will.

HELD: 1. Yes. The Court finds that the opinion of the expert witness as been rebutted by another expert witness, Jose C. Espinosa, which the Court gave more weight and credence. The standards of comparison used by Espinosa are more reliable than those used by Villanueva. Thus, the standards used by Villanueva in the comparison are signatures appearing documents and letters written in November 10, 1941, April 1940, October 8, 1943, July 16, 1945 and January 1945, than the disputed signatures appearing in the will were affixed on October 29, 1945. On the other hand, the standards used by Espinosa in making his comparative study bears dates much closer to that of the disputed signatures, he examined signatures affixed on October 1945, January 2, 1945, January 24, 1945, September 24, 1945 and March 12, 1941, only for emphasis. The closeness or proximity of the time in which the standards used had been written to that of the suspected signature or document is very important to bring about an accurate analysis and conclusion. The selection of the proper standards of comparison is of paramount importance considering the age and state of health of the author of the questioned signatures. The passing of tie and the increase in age may have a decisive influence in the writing characteristics of a person. Accordingly, the Court opined that in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point of time to the suspected signature. In the case at bar, such was not followed in the study made by Villanueva but such was observed by the study made by Espinosa. Thus the Court gives Espinosa’s opinion more weight and consideration.

2. Yes. The law requires that the will should be written in the dialect or language known to the testator. Indeed nothing in the testimony of the witness presented by the petitioner which would indicate that the testatrix knew and spoke the Spanish language used in the will. But this failure alone does not in itself suffice to conclude that the requirement of law has not been complied with. There is enough evidence on record which supplies the technical omission. It is undisputed fact that the deceased was a meztiza española, was married to a Spaniard and made several trip to Spain. Also, the very letters submitted as evidence by the oppositor were written in Spanish by the deceased in her own handwriting, having proven by her very own evidence that the deceased possessed the Spanish language, oppositor cannot be allowed to allege the contrary. The presumption that the testator knew the language in which the testament has been written, stands unless the contrary is proved. Lastly, the attestation clause of the will states that the testatrix knew and possessed the Spanish language, though not required to be stated therein only proves that the instrumental witnesses clearly wanted to make it in record that the deceased knew the language in which the will was written. 3. Yes. No direct evidence was shown to reach the conclusion that the deceased was not of sound and disposing mind when she signed the will, and the only reason for the said conclusion is that the deceased signed the will in somewhat varied form. This conclusion was contrary to what the instrumental witnesses have said on this point, which were of the impression that the deceased was of sound mind at that time and that she could still talk and read, only that she was weak. These statements had not been contradicted. While the signatures affixed by the deceased in the will differ from each other in certain respects, this is only due to her age and state of health rather than to a defective mental condition. The difference or irregularities are common in writings of old people, which are indicative of the age, sickness or weak condition of the writer, which is far from showing lack of genuineness.

Every will must be executed in a language known to the testator. While this requirement is mandatory and, as a rule, must be proved during probate proceedings, a failure to introduce evidence in this respect does not necessarily justify the denial of probate. Under certain conditions, knowledge of the language in which the will was written may be presumed.

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

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

BALONAN V. ABELLANA ET AL, 109 PHIL 359 (1960) FACTS: The will of Anacleta Abellana was sought to be probated. It was written in the Spanish language and consists of two typewritten pages double space. First page was signed by Juan Bello and under his name appears typewritten: “Por la testadora Anacleta Abellana, residence certificate A1167629, Enero 21, 1051, Ciudad de Zamboanga. The signatures of the instrumental witnesses appear also on the left margin of said instrument. Second page appears the signature of three instrumental witnesses and at the bottom of which appears the signature of T. de los Santos, and below his signature is his designation as the notary public who notarized such testament. The signature of Juan Bello appears on the left hand side of the margin, under whose name appears handwritten the following phrase “Por la testadora Anacleta Abellana.”

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

HELD: No. 1. The law requires that the testator himself sign the will or if he cannot do so, the testator’s name must be written by some other person in his presence and by his express direction. In the case of Ex Parte Arcenas, “ it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.”

Where the testator does not know how or is unable for any reason to sign the will himself, it shall be signed in the following manner: “ John Doe by the testator Richard Doe “ or “By the testator, John Doe, Richard Doe.” All this must be written by the witness signing at the request of the testator. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. CAB: The name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself or by Dr. Juan Bello. There is therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will or that his name be affixed thereto by some other person in his presence and by his express direction.The said will of Anacleta Abellana may not be admitted to probate.

Art 805 NCC prescribes the manner in which the will must be signed by the testator; i.e., "subscribed at the end thereof by the testator himself, or by the testator's name written by some other person in his presence and by his express direction. Balonan confirms that this requirement is mandatory, and that a failure to comply therewith is a fatal defect. It is not important that the person to whom the function of writing the testator's name indicates or writes his own name. But it is imperative that this individual should write the name of the testator. Balonan gives two alternate ways of complying with the statutory requirement. ATTY SEBASTIAN: The form as provided by the law must be STRICTLY complied with. The court is not supposed to interpret the law if the law is clear and unambiguous.

GARCIA V. LACUESTA, 90 PHIL 489 (1951) FACTS: The decedent Antero Mercado executed a will dated January 3, 1943 in Ilocano. The said will contains the following attestation clause: We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself Page | 37

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

and also by us below his name and of this attestation clause and that of the left margin on the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and everyone of us witnesses. Atty. Javier wrote the name of the decedent followed by “a ruego del testador” (at the request of the testator) Mercado allegedly wrote a cross immediately after this name

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

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

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

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

HELD: No. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The petitioner argues, however, that there is no need for such recital because the cross written by the testator after his name is sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumb mark, the latter having been held sufficient by this Court in the cases of de Gala v Gonzales and Ona, 53 Phil 104; Dolar v Diancin, 55 Phil 479; Payad v Tolentino, 62 Phil 848; Neyra v Neyra, 76 Phil 296; and Lopez v Liboro, 81 Phil 429. The mere sign of a cross is not the same as a thumb mark. The cross cannot and does not have the trustworthiness of a thumb mark.

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

HELD: Yes, the will may be admitted for probate. The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. The position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. At the moment when a witness signs the document he was actually and physically present and in such position with relation to the other witnesses that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so. The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that Page | 38

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

Art 805 requires that the will must be signed by the testator and the witnesses in the presence of one another. Nera provides the test of presence. It is not essential that the testator and the witnesses should look at the paper purporting to be the will of the testator at the time each of them affix their signatures. It is sufficient that each of them be physically present at the place where execution will take place and that they be in such position with respect to each one, that by merely casting their eyes in the proper direction, they would have been able to see each one affix his signature on the will without any physical obstruction. Is it enough, therefore, that the testator and each of the witnesses be able to see each of them sign the will without physical obstruction - even if there is lack of understanding as to the nature of the document being executed? ATTY SEBASTIAN: Reasons for the test of presence: (a) To ascertain that the testator is of sound mind at the time of the execution of the will; and (b) That the testator is capable of executing the will (there was no force or undue influence) TEST: If there is no obstruction and the witnesses can still see the signing of the will. RULE: If the witnesses can see the signing freely, without any obstruction, had they chosen to do so AND that they understand what they saw. This is subject to the limitation of REASONABLENESS

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

the acknowledgment is signed at the end of the attestation clause by the 3 attesting witnesses and at the left hand by the testatrix. Since no opposition was filed after the petitioner’s compliance with the requirement of publication. The trial court denied the probate of the will for want of a formality in its execution.

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

HELD: Yes. Under Art 805 NCC, the will must be subscribed or signed at the end by the testator himself or by the testator’s name written by another person in his presence, and by his express direction, and attested and subscribed by 3 or more credible witnesses in the presence of the testator and of another. Attestation consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. Subscription is the signing of the witnesses’ name upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. While the perfection in drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored especially where the authenticity of the will is not assailed. The law is to be liberally construed, the “ underlying and fundamental objective permeating the provisions of the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of the giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will.” In the case at bar, where it not for the defect in the place of signature of the witnesses, the court would have found the testimony sufficient to establish the validity of the will. The objective of the attestation and of subscription were fully met and satisfied when witnesses signed at the left margin of the sole page which contains all Page | 39

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

the testamentary dispositions, especially so when the will was properly identified by the subscribing witnesses to be the same will executed by the testratrix. There was no question of fraud or substitution behind the questioned order. Also, the failure in the attestation clause to state the number of pages used in writing the will would have been fatal, were it not for the fact that it is discernible from the entire will that it is really and actually composed of only 2 pages duly signed by the testatrix and her instrumental witnesses. In Singson v. Florentino: The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.

Art 805 requires that the testator should sign at the end of the will. This requirement does not apply to the subscribing witnesses, who may sign in any other part of each page of the will. The duty of the witnesses to subscribe is substantially complied with by any such signature. The failure of the attestation clause to indicate the number of pages upon which the will is written is, as a rule, a fatal defect. However, where the notarial acknowledgement does indicate the number of pages of the will, and the same conforms to an actual count of the pages, the deficiency is cured. A reference to Art 809, in this regard, is appropriate. ATTY SEBASTIAN: Even if the will is not paginated, the statement is made by the notary public who has absolutely no interest in the will but to acknowledge the will. The court can rely on extrinsic evidence (i.e., the statement of the notary public)

ICASIANO V. ICASIANO, 11 SCRA 422 (1964) FACTS: JosefaVillacorta executed her last will and testament in duplicate on June 2, 1956 and she died on Sept. 12, 1958. The will was: a) attested by three instrumental witnesses- Justo Torres Jr., Jose Natividad and VinicioDy b) acknowledged by the testatrix and the three instrumental witnesses on the same date before Atty. Ong, Notary Public

c) the will was actually prepared by Atty. Samson who was present d) e) f) g) h)

during the execution and signing of the decedent’s last will and testament. pages of the original and duplicate were duly numbered the attestation clause contains all the facts required by law to be recited therein and signed by the attesting witnesses will is written in the language known to and spoken by the testatrix (Tagalog) will was executed in one single occasion in duplicate copies both original and duplicate copies were duly acknowledged before the Notary Public on the same date.

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

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

HELD: No. The inadvertent failure of one of the witnesses to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify the denial of the probate. The impossibility of substituting this page is cured since the testatrix and two other witnesses signed the defective page, and that the document bears the imprint of the seal of the notary public before whom the testament was ratified by the testatrix and all three witnesses. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existence, and the evidence on record attests to the full observance of the statutory requisites. Despite the literal tenor of the law, the Court has held that in other cases that;

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a. a testament with the only page signed at its foot by the testator and witnesses but not in the left margin could be probated(Abangan vs. Abangan) b. despite the requirement of correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro). These precedents exemplify the Court’s policy to require satisfaction of the legal requirements in order to guard against fraud and bad faith, but without undue or unnecessary curtailment of the testamentary privilege. The appellants also argued that since the original of the will is in existence and available, the duplicate is not entitled to probate. Since they opposed the probate of the original because of the lacking signature on page 3, it is easily discerned that the oppositors-appellants run into a dilemma. If the original is defective and invalid, then in the law, there is no other will but the duly signed carbon duplicate, and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

Art 805 requires that each of the subscribing witnesses should sign each and every page of the will on the left margin. This requirement is, as a rule, mandatory and a failure to comply therewith is a fatal defect. Icasiano holds that the failure of a witness to sign one of the pages of the will through inadvertence or oversight (there being no bad faith or fraudulent intent) can be cured by the presentation of a carbon duplicate of the will which contains all the required signatures. This ruling is based on the principle of liberal interpretation of the statutory requirements for the formal validity of the will, provided that the need to safeguard the genuineness and authenticity of the will is not compromised. It is important, for the proper understanding of this case, to differentiate a duplicate copy of a document from a duplicate-original thereof. ATTY SEBASTIAN: The copy is a duplicate original. Taboada is exceptional because it did not avoid a will which has a defective attestation clause for not stating the number of pages. The solution was

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

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

ISSUE: WON the will is fatally defective HELD: Yes, the will is void. The attestation clause is “a memorandum of the facts attending the execution of the will” required by law to be made by the attesting witnesses, must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negates their participation. The contention of the petitioner-appellee that the signatures of the 3 witnesses on the left-hand margin conform to the requirements of the law and may be deemed as their signatures to the attestation clause is untenable. This is because the said signatures are in compliance with the mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause is not signed by the 3 witnesses at the bottom thereof, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

The attestation clause must be signed by the witnesses at the bottom thereof. If the signatures of the attesting witnesses are affixed on the left margin, or in any other place, the attestation clause would be fatally defective, resulting in the nullity of the will. The opinion of the majority of the Court in this case is diametrically opposed to its opinion in the case of Abangan v Abangan. The technical difference between the factual bases of the two cases should be examined. In any event, Cagro is not a unanimous decision.

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

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

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

LOPEZ V. LIBORO, 81 PHIL 429 (1948) FACTS: The will in question comprises 2 pages, each of which is written

SAMANIEGO-CELADA V. ABENA, 556 SCRA 569 (2008) FACTS: Petitioner Paz Samaniego-Celada was the first cousin of

on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. The testator affixed his thumb mark to the instrument instead of signing his name.

decedent Margarita S. Mayores while respondent was the decedent’s lifelong companion since 1929. Margarita died single and without any ascending or descending heirs as her parents, grandparents and siblings predeceased her. She was survived by her first cousins.

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

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

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

HELD: No, the purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil. 476). On the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other form of identification more trustworthy than the conventional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. The testator affixed his thumb mark to the instrument instead of signing his name. The testator chose the use of mark as the means of authenticating his wills. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be “signed” is satisfied – is the signature is made by the testators’ mark.

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

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

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

HELD: The Court upheld the findings of the RTC, applying the doctrine of liberal interpretation. The will is fatally defective for the reason that its attestation clause states that the will is composed of 3 pages while in truth and in fact, the will consists of 2 pages only because the attestation clause is not part of the notarial will. It is true that the attestation clause is not part of the will, the court opined that error in pages of the will as stated in the attestation clause is not material to invalidate the will. The error must have been brought about by the honest belief that the will is the whole instrument consisting of 3 pages inclusive of the attestation clause and the acknowledgment. Since the petitioners are not compulsory heirs of the decedent and as the decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedent’s estate.

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Samaniego holds that an error in the number of pages of the will as stated in the attestation clause is not material to invalidate the will. ATTY SEBASTIAN: Art 809 was applied in this case. A reading of the case shows that there is only 2 pages in the will. The error could be a mistake of fact or typographical error.

TESTATE ESTATE OF ALIPIO ABADA V. ABAJA, 450 SCRA 264 (2005) FACTS: Abada died in May 1940 and his wife, Paula Toray (Toray) died in Sept. 43. Both died without legitimate children. Alipio Abaja (Alipio) filed with CFI-Negros Occidental a petition for the probate of the Last Will and Testament of Abada, allegedly naming his testamentary heirs, his natural children, Eulogio Abaja (Eulogio) and Rosario Cordova. Alipio is the son of Eulogio. Nicanor Caponong (Caponong) opposed the petition on the ground that Abada left no will when he died. Caponong further alleged that the will, if Abada really executed it, should be disallowed since it was not executed and attested as required by law. Joining him in the opposition were the nephews, nieces and grandchildren of Abada and Toray.

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

HELD: Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil Procedure which governed the execution of wills before the enactment of the New Civil Code. The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, governs the form of the attestation clause of Abada’s will. The will is not written in a language or dialect known to the testator, which is in Spanish. Alipio testified that Abada used to gather Spanish speaking people in their place. In these gatherings, Abada and his companion would talk in the Spanish language. This sufficiently proves that Abada knows the Spanish language.

That the will has no attestation clause. It fails to state the number of pages in which the will was written. The will stated that “in the left margin of each and every one of the two pages consisting of the same” shows that the will consists of two pages. The pages are number correlatively with the letters “One” and “Two.” The attestation clause fails to state expressly that the testator signed the will and its every page in the presence of the three witnesses.The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. The Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it. Attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and each other. The last part of the attestation clause states as translated to English as “in its witness, every one of us also signed in our presence and of the testator.” This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator.

AZUELA V. CA, 487 SCRA 119 (2006) FACTS: Petitioner Azuela, who is the cousin of the decedent, is seeking to admit to probate the notarial will of Eugenia Igsolo. The will consisted of 2 pages and written in Filipino. In the will, the 3 attesting witnesses (Agrava, Leano and Estrera) affixed their signature on the left-hand margin of both pages of the will but not at the bottom of the attestation clause. The will made reference only to 2 heirs, legatees and devises of the decedent: Petitioner Azuela and Irene Igsolo (residing abroad) Private respondent Castillo opposed the probate because: a. The will is a forgery since there were 12 legitimate heirs of the decedent and that the true purpose of the will was to be used as a defense in several ejectment cases filed against petitioner Azuela b. The will was not executed and attested to in accordance with the law i.e., the decedent’s signature does not appear on the second Page | 43

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page and the will was not properly acknowledged RTC Manila admitted the will to probate, taking into account the testimonies of the attesting witnesses. RTC held that: a. The subtitle at the end of the will (Patunay ng mga saksi) suffices as an acknowledgment and attestation clause b. The signing of the attesting witnesses on the left-margin of the second page containing the attestation clause substantially satisfied the purpose and attestation of the will c. Regarding pagination: Since the will is only composed of two pages (i.e., page 1 contains the entire testamentary disposition and page 2 contains the last portion of the attestation clause), the defects are not of a serious nature as to invalidate the will d. RTC also noted that the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, rebutted the oppositor’s arguments that the will was not properly executed and attested to in accordance with the law

ISSUE: WON the will was defective in form HELD: Yes, the will in question did not comply with the formal requisites for a valid will and as such, it is void. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. There was an incomplete attempt to comply with this requisite, as space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left not complied with. In Uy Coque, the SC held that “The purpose of requiring the number of sheets to be stated in the attestation clause is obvious: the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. In the case of In Re Will of Andrada, the SC held that the failure to state the number of pages in the attestation clause alone is a fatal defect in the validity of a will.

Art 809 should not deviate from the need to comply with the formal requirements as enumerated under Art 805. Whatever the inclinations of the members of the Code Commission in incorporating Art 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills. Compliance with these requirements, however, picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will. It must be noted that the will contained more critical defects that should necessarily lead to its rejection: The attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. CAB: The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. The requirement under Article 806 that “every will must be acknowledged before a notary public by the testator and the witnesses has also not been complied with. CAB: Instead of an acknowledgment, the notary public, Petronio Y. Bautista, wrote “Nilagdaan ko at ninotario ko ngayon 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” These words be cannot construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby by the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.

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

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

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

The express requirement in Article 806 is that the will be “acknowledged” and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another allimportant legal safeguard against spurious wills or those made beyond the free consent of the testator.

Of note is the decision of the RTC which admitted the will to probate notwithstanding the defects thereof (no signature of witnesses at the bottom of the attestation clause, no signature of the testator on the left margin of the second page of the will, the failure of the attestation clause to state the number of pages used upon which the will was written, and the lack of acknowledgment). As to the missing signature of the witnesses at the bottom of the attestation clause, the RTC ignored the ruling in Cagro v Cagro (although arguably the ruling in Cagro has a very strong dissenting opinion). As regards the missing number of pages in the attestation clause the RTC invoked the doctrine of liberal interpretation but conveniently ignored the conditions laid down in the case of Rodelas. As regards the missing acknowledgement, the RTC ignored the ruling in Carcia v Gatchalian. It can well be said that the decision of the RTC is “one for the books.” This case also highlights the fundamental difference between a jurat and an acknowledgment, and based on the distinction, the Court held that a notarial will that is not acknowledged before a notary public is void, even if it was sworn to before a notary public. VDA DE RAMOS V. CA, 81 SCRA 393 FACTS: The attestation clause of the will stated that the testatrix signed the will in the presence of the instrumental witnesses. However, during the probate proceedings, the two surviving witnesses claimed that the testatrix’s signature was already on the document when they signed the will. The notary public, however, testified that he was present during the

HELD: Yes. The presumption of regularity cannot be defeated by negative testimony. The attestation clause, once signed, affirms compliance with the rules and execution contradicts the presence of undue influence. The negative testimony of the two witnesses do not enjoy equal status with the positive assertion and the convincing appearance in the will itself. In the attestation clause, the witnesses not only attest to the signature of the testatrix but also to the proper execution of the will. Their signature implicitly certifies the validity of the will and the truth of the facts stated therein.

The law requires at least three attesting witnesses to a notarial will. The witnesses shall be called upon, during probate, to recount the incidents which occurred thereat. To a large extent, admission to or denial of probate depends on the testimony of these instrumental witnesses. However, if contrary to expectation, these witnesses, or some of them, should testify against the formal validity of the will, the proponent of the will may use other evidence, direct or circumstantial, to establish compliance with the formalities prescribed by law. A will is not necessarily void because the witnesses declared against its validity. Art806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. Despite its reference to “every will,” Art 806 applies only to ordinary or notarial wills. It has no application to holographic wills because the same does not have to be witnessed. Failure to affix a documentary stamp on a will is NOT a fatal defect as the probate court can require the proponent to affix the required documentary stamp to the notarial acknowledgment. Page | 45

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc WHEN ACKNOWLEDGMENT MADE There is no provision in NCC that the acknowledgment before the notary public and the signing of the will by the testator and the witnesses should be a single transaction.

ISSUE: WON the will is invalid for failure to comply with the formalities required by law The compliance with the requirement provided in Art. 806 has the effect that the will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its invalidity. As the document in consideration does not comply with this requirement, thus the same may not be probated.

HELD: ACKNOWLEDGMENT AND JURAT DISTINGUISHED JURAT Certifies that the document was signed and subscribed by the signatory in his presence

ACKNOWLEDGMENT Declares before the notary that the signatories executed and subscribed to the document in their own free or voluntary act Under oath and under pain of perjury

ACKNOWLEDGMENT BEFORE A NOTARY A notary cannot be a witness and a notary public before whom the will is acknowledged at the same time. The function of the notary is to guard against illegal arrangements would be defeated if he becomes one of the witnesses as he would then be interested in validating his own acts. The will must be denied probate for failing to comply with the mandatory requisites of acknowledgment if it was acknowledged before the notary only by the testator and not by the witnesses.

CASES: GARCIA V. GATCALIAN,21 SCRA 1056 (1967) FACTS: In 1967, Gregorio Gatchalian, a widower, died in Pasig, leaving no forced heirs. On the same year, appellant filed a petition with the CFI of Rizal for the probate of the alleged will wherein he was instituted as sole heir. Gatchalian and the other appellees opposed the petition on the ground that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of the will. The lower court rendered its decision finding the document to be authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Art 806 NCC which provides that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document shows that it was acknowledged before a notary public by the testator but not by the instrumental witnesses.

CRUZ V. VILLASOR, 54 SCRA 31 (1973) FACTS: The only question presented for determination, on which the decision of this case hinges, is whether the supposed Last Will and Testament of Valente Z. Cruz (Cruz) was executed in accordance with Art 805 and 806. Of the three instrumental witnesses on the supposed Last Will and Testament of Cruz, one of them, Atty. Angel Teves (Teves), acted also as the notary public before whom the will was supposed to have been acknowledged. The petitioner argues that as a result thereof, the will has only two witnesses who appeared before the notary public to acknowledge the will. The respondent, Lugay, who is supposed to execute the will, stated that there was substantial compliance with the legal requirement of three attesting witnesses, even if one of them acted as a notary public based on American jurisprudence.

ISSUE: Can the notary public be considered as the third attesting witness?

HELD: No. The probate of the Last will and Testament of Cruz is declared not valid and set aside. The notary public cannot acknowledge before himself his having signed the will. If the third witness is the notary public himself, he would have to avow, assent or admit as his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. The function of a notary public is to guard against any illegal or immoral arrangements. That would be defeated if he was also the attesting Page | 46

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witness. He would be interested in sustaining the validity of the will, as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud. American jurisprudence cannot be used here for we are in Philippine jurisdiction. In allowing the notary public to act as third witness, or one of the attesting and acknowledging witness, would have the effect of only two attesting witnesses to the will which is violative of Art 805 requiring at least 3 witnesses and Art 806 which requires the testator and the required number of witnesses to appear before the notary public to acknowledge the will.

Article 806 requires that the testator and the three witnesses must acknowledge the will before a notary public. Cruz involves a situation where one of the three witnesses to the will was the same person who notarized the same. By reason thereof, the Supreme Court disallowed the will for the reasons stated hereunder. While the proponent of the will relied on American decisions which permit a notary public to be a witness to an instrument notarized by him, the Supreme Court rejected the application of the foregoing decisions to the case at bar. It would seem that the strongest argument against the proponent is the fact that the witnesses themselves are required by law to acknowledge the document. For which reason, it is obvious that a witness cannot simultaneously be the notary public before whom the will shall be acknowledged. A different result may be expected if the witnesses were not required by law to acknowledge the document. ATTY SEBASTIAN: A notary public cannot be an attesting witness because in acknowledging a will, he cannot perform a self-serving act. If the notary public is present along with the 3 attesting witnesses, he can be an attesting witness. While he may be disqualified as a witness, he cannot be disqualified as a notary public.

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

The trial court denied the probate of the will, citing that Art 806 NCC was not complied with because the notary public (Atty. Directo) had no jurisdiction where the will was executed by the decedent (the will was executed in Quezon city while Directo was a notary public for Caloocan)

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

HELD: No. One of the formalities required by law in connection with the execution of a notarial will is that it must be acknowledged before a notary public by the testator and the witnesses. This formal requirement is one of the indispensable requisites for the validity of a will. In other words, a notarial will that is not acknowledged before a notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate. An acknowledgment is the act of one who has executed a deed in going before some competent officer and declaring it to be his act or deed. In the case of a notarial will, that competent officer is the notary public. PURPOSE OF ACKNOWLEDGMENT: The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare before an officer of the law, the notary public, that they executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus paving the way for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of a certain mindset in making the testamentary dispositions to the persons instituted as heirs or designated as devisees or legatees in the will. Acknowledgment can only be made before a competent officer, that is, a lawyer duly commissioned as a notary public. A notary public is authorized to perform notarial acts, including the taking of acknowledgments, within that territorial jurisdiction only. Outside the place of his commission, he is bereft of power to perform any notarial act; he is not a notary public. Any notarial act outside the limits of his jurisdiction has no force and effect. Page | 47

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

Guerrero defines “acknowledgment” and the competent officer before whom it should be made in the execution of a notarial will. The case further explains the reason for the requirement of Art 806 and the function of the acknowledgment. Guerrero holds that a notarial will acknowledged before a public notary outside of the latter’s territorial jurisdiction is void. Effectively, the will is not acknowledged by Art 806.

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

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

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

HELD: No. The procedure may be implied from the provision of Section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only “until the requisite stamp shall have been affixed thereto and canceled”. It was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (del Castillo vs. Madrilena, 49 Phil. 749. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of documentary stamp on a document does not invalidate such document. See Cia Gen. de Tobaccos vs. Jeanjaquet, 12 Phil. 195 and Delgado and Figueroa vs. Amenabar, 16 Phil. 403).

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. SPECIAL FORMAL REQUIREMENTS Art 807 and 808 are meant to make sure that the provisions of the will are known to a testator who is blind, deaf or deaf mute. Failure to comply with these provisions invalidate the will of such persons.

RATIO: The

disabilities are impairments specific organs of perception; they would be at a disadvantage. They cannot perceive the nuances of his environment at the time of the execution of the will. These arts are to compensate for the impairments of their sensory perception since they cannot protect themselves in the same way that the able can.

ADDITIONAL REQUIREMENTS FOR SPECIAL CASES A. DEAF OR DEAF-MUTE TESTATOR (Art 807): 1. Personal reading of the will if able to do so; or 2. If not possible, designation of two persons to read the will and communicate to him, in some practicable manner, the contents thereof. In a case where the testator did not read the final draft of the will, but the lawyer who drafted the document read the same aloud in the presence of the testator, three witnesses and notary public, the Court held that the formal imperfections should be brushed aside when the spirit behind the law was served though the letter was not (Alvarado v. Gaviola, GR No. 74695 September 14, 1993).

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

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

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a. b.

First, by one of the subscribing witnesses (trusted by the testator so by the time the will is probated he can provide a truthful testimony); and Second, by the notary public before whom the will is acknowledged (officer of the court; disinterested party)

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

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

ISSUE: WON the probate court erred in allowing the probate of the 1960 will

HELD: Yes. The Court was convinced that the supposed testatrix could

CASES: GARCIA V. VASQUEZ, 32 SCRA 490 (1970) FACTS: Gliceria del Rosario (Gliceria) died unmarried in, 1965, leaving

not have physically read or understood the alleged testament and that its admission to probate was erroneous and should be reversed.

no descendants, ascendants, brother or sister. At the time of her death, she was 90 yrs old and has an estate consisting mostly of real properties. Consuelo S. Gonzales vda. De Precilla, a niece of the deceased, petition the CFI-Manila for probate of the alleged will of Gliceria A. del Rosario, executed on December 29, 1960.

A testator shall be deemed blind if he can only see at a distance. A person need not be clinically blind for the application of Art 808; mere inability to read is equivalent to blindness. In this case, the Supreme Court held that the will was not validly executed despite testimonies and pieces of evidence that testatrix was capable of reading the will because she can arrange flowers, greet friends, perform kitchen tasks and write checks.

The records shows that during the lifetime of Gliceria, she executed two wills: one on June 9, 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by 3 witnesses and acknowledged before a notary public; and other dated December 29, 1960, consisting of 1 page and written in Tagalog, witnessed by 3 witnesses and acknowledged before a notary public. Called to testify on the due execution of the 1960 will were instrumental witnesses Decena, Lopez and Rosales uniformly declared that they were individually requested by Alfonso Precilla (late husband of petitioner special administratrix). They testified that the testatrix read the will silently before signing it. Oppositors-appellants challenged the correctness of the probate court’s ruling maintaining that on December 29, 1960, the eyesight of Gliceria was so poor and defective that she could not have read the provisions of the will.

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to ensure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. In the case at bar, there was nothing in the records to show that the above requisite have been complied with.

Art 808 NCC prescribes an additional formality in the case of a blind testator. Garcia holds that if a testator’s vision does not permit him to Page | 49

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

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

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

ISSUE: Was Brigido Alvarado blind for purpose of Art. 808 at the time Justice Reyes opined that if the testator is blind or incapable of reading the will (as when he is illiterate) the requirement of reading must be complied with in order to enable the testator to object to provisions which are not in accordance with his wishes. While the opinion seems reasonable, Art 808 makes specific reference to a blind person. An illiterate person with good vision was not mentioned in the law. There is serious doubt, therefore, if the provision of Art 808 is applicable to an illiterate testator.

his “HulingHabilin” and its codicil were executed? If so, was the doublereading requirement of said article complied with? HELD: Although he was not totally blind, the Court stated the double readingrequirement has substantially been complied with. Although Brigido was not totally blind at the time the last will and codicil were executed, his vision on both eyes was only of “counting fingers at three (3) feet) by reason of the glaucoma he had been suffering for several years. As testified by Dr. Roasa, he could no longer read either printed or handwritten matters when he was consulted, which was Dec. 14, 1977.

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

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

ALVARADO V. GAVIOLA JR., 226 SCRA 347 (1993) FACTS: In 1977, 79 year old Brigido Alvarado (Brigido) executed a notarial will called Huling Habilin where he disinherited an illegitimate son, petitioner, Cesar Alvarado( Cesar). He likewise, revoked in this document a previously executed holographic will. As testified to by the three instrumental witnesses, the notary public and by respondent, Atty. Rino, who were all present at the execution, the testator did not read the final draft of the will himself. Instead, Atty. Rino, as the lawyer who drafted the document, read the same aloud in Brigido’s presence, the three instrumental witnesses and the notary public. The latter four followed the reading from their own furnished copies of the will. On Dec. 29, 1977, a codicil entitled Kasulatanng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing some dispositions in the will to generate cash for Brigido’s eye operation. But the disinheritance clause remained. The testator did not personally read the final draft of the codicil. It was instead Atty. Dino who read it aloud in the presence of the Brigido, the three instrumental witnesses and the notary public, all following the reading using their own copies. When a petition for the probate was filed upon the testator’s death, Cesar opposed on the several grounds but the main thrust was that the deceased was blind within the meaning of the law at the time his

Clear from the foregoing is that Art 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so in conformity with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

This is the second instance where the Court had occasion to discuss the meaning of the term "blind testator." Alvarado confirms that a person unable to read the draft of his will, either because of poor, defective or blurred eyesight must be considered blind for the purpose of compliance with the additional formalities prescribed in Article 808. In addition, the Court confirms that inability to read by reason of illiteracy is included within the broader concept of "blindness" for the purpose of the same article. However, Alvarado makes a landmark exception to the rule of strict Page | 50

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compliance when it affirmed the probate order despite non-compliance with the double reading requirement. How this decision will affect the courts interpretation of the other formal requirements of the law remains to be seen.

ATTY SEBASTIAN: definition of substantial compliance in Tolentino Vol. IV. Neither of the two requirements was complied with, so there is NO substantial compliance to speak of. Possible reason why Bellosillo allowed the will? Because the will disinherited a illegitimate child and if the will is allowed for probate, the disinherited child will inherit. See grounds for disinheritance provided in Art 919

Art809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. The Code Commission, cognizant of the conflicting views between substantial compliance and mandatory compliance and the undeniable inclination towards liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. This became Art 809 NCC. Art 809 provides that when there are defects and imperfections in the ATTESTATION CLAUSE as to its form or language used therein, such defects and imperfections shall NOT invalidate the will, provided there is NO bad faith, forgery, fraud or undue and improper influence and pressure. The attestation clause is essentially the act of the witnesses over whom the testator has no control. It would be unfair if the testator pays for the lapses committed by his witnesses.

REQUISITES FOR APPLICATION OF ART 809

1. Defects and imperfections must be in the FORM of the attestation or in the language used therein;

2. There must be NO bad faith, forgery, fraud, or undue and improper pressure and influence, in the execution of the attestation clause, and 3. It must be proved that the will was in fact executed and attested in SUBSTANTIAL COMPLIANCE with all the requirements of Art. 805 (formal requirements).

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

CASES: GIL V. MURCIANO, 88 PHIL 260 (1951) FACTS: Carlos Gil executed a last will and testament, bequeathing his properties to his wife Isabel Herreros (appellee). After his death, the will was presented for probate in CFI Manila. This was opposed by his nephew Roberto Toledo and sister, Pilar Vda de Murciano (appellant). Toledo’s legal right to intervene was questioned; subsequently he was eliminated from the case. Subsequently, the will was destroyed during the will, necessitating its reconstitution after liberation. The will consisted only of 2 pages. The attestation clause does not state that the testator signed the will; it only shows that the attesting witnesses signed the will. Despite this defect, CFI admitted to probate the will. ISABEL’S CONTENTION: The defective attestation clause may be cured by inferring the other parts of the will an inserting a missing phrase to complete the whole meaning of the attestation clause. Thus, the statement should read: …as well as all the pages PILAR’S CONTENTION: The will should not be probated since it did not comply with the requirements of Sec 618 of the Code of Civil Procedure, as amended, which provides that: “The attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of 3 witnesses, and the latter witnessed and signed the will and Page | 51

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

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

ISSUE: WON the will is valid despite defects in the attestation clause HELD: Yes, the will is valid. The SC in Dichoso de Tecson v. De Gorostiza (1922), noted that there are two divergent tendencies in wills— one being planted on strict construction (Rodriguez v. Alcala) and the other on liberal construction (Abangan v. Abangan). The decision in Abangan favoring liberal construction is oft-cited approvingly in later decisions. In Abangan, the SC held: Words omitted from a will may be supplied by the court whenever necessary to effectuate the testator's intention as expressed in the will: but not where the effect of inserting the words in the will would alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules been established for guidance in the construction or interpretation to be placed upon such a will, and in general a will should be construed according to these established rules of construction." This leads us to ask: If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. CAB: There is no legitimate, practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose of the statute in requiring the intervention of witnesses is to

make it certain that the testator has definite and complete intention to pass his property, and to prevent, as far as possible, any chance of substituting one instrument for another, what better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and bungling it or the attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience. A second ground of attack on the questioned will is that the first page or sheet thereof does not bear the testator's signature. The discussion on the correctness of the copy of the attestation clause amply answers this objection in fact, the appellee's case is much stronger on this point for the reason that there is not only speculative but also positive basis for the conclusion that the testator's signature was affixed to the first page of the original. Both the testator and the attesting witnesses stated in the will and in the attestation clause, respectively, that the former signed both pages or sheets of the testament.

Art809 enunciates the doctrine of liberal interpretation. Accordingly, in the absence of bad faith, forgery, fraud or undue and improper influence and pressure, defects or imperfections in the form of attestation clause or in the language used therein shall not render the will invalid, if it is proved that the will was in fact executed and attested in substantial compliance with the requisites of law. Gil involves an attestation clause which omitted to state that the testator signed the will in the presence of the witnesses. Such fact was, however, stated by the testator in the body of the will. There is no question as to the genuineness of the will, as even the opponents concede that issue. CANEDA V. CA, 222 SCRA 781 (1993) FACTS: On December, 1978, Mateo Caballero, a widow without any children and already in the twilight years of his life, executed a last will and testament at his residence in Cebu after attesting witnesses.

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

ISSUE: WON the Last Will and Testament of Mateo Caballero “Exhibit C” will be allowed for the probate of his will. The base contention is the attestation clause. The attestation clause is as follows: We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, Mateo Caballero, has published unto us the foregoing Will consisting of Three Pages, including the Acknowledgment, each page numbered correlatively in letters on the upper part of each page, as his Last Will and Testament and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.

even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. Under Art 809, the defects or imperfections must be only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Art 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

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

HELD: No, it is contended by petitioner that the aforequoted attestation

ATTY SEBASTIAN: In Gil, the will was reconstituted while in Caneda, the error was committed by the witnesses. When the will was reconstituted in Gil, it was no longer exactly as it was written, and such cannot be faulted to the testator.

clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other.

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

The following comment of former Justice J.B.L. Reyes regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself; whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these facts that the will itself can reveal, and defects or

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

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

ADVANTAGES AND DISADVANTAGES OF HOLOGRAPHIC WILL Page | 53

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

A. ADVANTAGES 1. It is simple and easy to make, convenient for those who have no means to employ lawyers or have very little property to dispose of 2. It guaranties absolute secrecy of testamentary dispositions since it can be made without anyone else knowing it

B. DISADVANTAGES 1. There is no guaranty as to the capacity of the testator 2. There is no protection against FIVUM which may never be known in case of the immediate death of the testator 3. It may not faithfully express the wishes of the testator due to faulty expressions 4. It can be easily concealed

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

REQUIREMENTS:

1. Written entirely by the hand of the testator 2. Dated and signed 3. In a language/dialect known to the testator (Art 804)

Anti-fraud proof: entirely handwritten by the testator

PURPOSE OF DATE 1. To determine the age of the testator 2. The soundness of mind of the testator 3. Whether Art 810 applies It can be placed anywhere because it would serve its purpose. An incomplete date is sufficient if it does not create a controversy. If will create a controversy, then a complete date is necessary.

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

notebook of Bibiana which bore her will in the form of a letter to her children. It was entirely written and signed in the handwriting of Bibiana and dated “Feb./61”. The brother’s testimony was corroborated by Bibiana’s two sons that the letter dated as such is the holographic will of their deceased mother. Both sons recognized the handwriting of their mother and positively identified her signature. They further testified that the language of the will (English) was understood by their mother; and that the date was the said date when the will was executed by their mother. Luz Roxas de Jesus, another compulsory heir, filed her opposition to the will. She contends that the alleged will was not dated as required nu Article 810. She says that the day, month, and year should be indicated.

ISSUE: WON the date “Feb./61 is in compliance with Article 810 HELD: Yes. The prevailing policy is to require satisfaction of the legal requirement in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege. If a will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said will should be admitted to probate. If the testator, in executing his will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. The objective of the solemnities surrounding execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testament and to guaranty their truth and authenticity. A complete date is required to provide against such contingencies as that of two competing wills executed on the same day, or if a testator becoming insane on the day in which a will was executed. There is no such contingency in this case. In the case at bar, no evidence of bad faith and fraud in its execution nor was there any substitution of wills and testament. There is no question that the holographic will of the deceased Bibiana Roxas de Jesus was entirely written, dated and signed by the testatrix herself and in a Page | 54

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language known to her, and there is no question as to its genuineness and du execution. As a general rule, the “date” in a holographic will should include the day, month, and year to its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will was established and the only issue is whether of not the date “Feb./61 appearing on the holographic will is a valid compliance with Art. 810 of the Civil Code, probate of the holographic will should be allowed under the principle of substantial compliance.

Art 810 NCC requires, among others, that a holographic will be dated. While a complete date is generally required, an incomplete date which sets forth only the month and the year of execution, is not a fatal defect if it can be shown that there was no bad faith, fraud, and undue and improper influence and pressure. Probate is further justified if the genuineness of the handwriting of the testator is proved, or otherwise admitted by the parties, and the only ground or opposing probate is the technicality resulting from an incomplete date. Roxas explains the reason for requiring a holographic will to be dated. LABRADOR V. CA, 184 SCRA 170 (1990) FACTS: On June 10, 1972, Melecio Labrador (Melecio) died in Zambales, where he was residing leaving behind a pieces of property (fishpond and land) and naming all his children (by two mothers) in a holographic will as heirs. Two of his children, namely Jesus and Gaudencio, claimed that Melecio sold the portion of the fishpond property to them for P6,000 in 1971 and that Jesus sold such property to Navat for P5,000.00. The other brother, Sagrado, filed a complaint for the annulment of the purported “Deed of Absolute Sale” since he already acquired such property from his father under the holographic will which was executed on March 17, 1968. The will states that a portion of the fishpond, about one ha. was given to Sagrado Labrador, with specifications as to its boundary. On the second page of the will was stated: “And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment

th

of the said fishpond, and this being in the month of March 17 day in the year 1968 and this decision and or instruction of mine is to be followed. And the one who made this writing is no other than Melecio Labrador, their father.” The date was not written in the usual place but on page 2 of the will. Respondents claim that the date of 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about “the partitioning and assigning of the respective assignments of the said fishpond and was not the date of the execution of the holographic will; hence the will is more of an “agreement” between the testator and the beneficiaries to the prejudice of the other compulsory heirs like the respondents.

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

HELD: Yes, the will is considered dated. The Court approved the probate of the holographic will of Melecio. The law does not specific a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hands of the testator, which were met in this case. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. The will was not an agreement but a unilateral act of Melecio who knew that he was executing a will. The act of partitioning and the declaration that such partitioning as the testator’s instruction or decision to be followed reveal that Melecio was fully aware of the 1. nature of the estate property to be disposed of and 2. of the character of the testamentary act as a means to control the disposition of his estate.

The required date which must be indicated in a holographic will is substantially complied with if the date were incorporated as part of the body of the will. Art811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and Page | 55

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

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

EVIDENCE: HANDWRITING ANALYSIS

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

CASES: GAN V. YAP, 104 PHIL 509 (1958) FACTS: In November 1951, Felicidad Esguerra-Alto Yap died of heart

PROCEDURAL DIFFERENCES HOLOGRAPHIC WILLS HOLOGRAPHIC WILL The only guaranty of authenticity is the handwriting itself If lost, photostatic copy may be used to prove the existence of the original If oral evidence were admissible, only one man could engineer the fraud In case of loss, the witnesses would testify as to their opinion of the handwriting they allegedly saw, on opinion which cannot be tested in court by oppositors because the handwriting itself is not at hand

IN

NOTARIAL

AND

NOTARIAL WILL The testimony of the subscribing witnesses and the notary is the guaranty of authenticity If lost, the subscribing witnesses are available to authenticate Difficult to convince 3 witnesses and notary to deliberately lie In case of witnesses fact which act of the the will

loss, the 3 subscribing would be testifying to they saw, namely the testator of subscribing

The SC held that Art 811 is not mandatory in the sense that 3 witnesses are required should a holographic will be contested as no witnesses may be present at the execution of the holographic will. The existence of witnesses, with the requisite qualifications (that they know the handwriting and signature of the testator) is not a matter within the control of the proponent. As such, the presence of witnesses is merely PERMISSIVE but the courts are not denied the option of procuring an expert witness.

Two important factors to consider in handwriting analysis 1. Pressure of the handwriting which leaves an impression on the paper 2. Speed of handwriting – fast writing = broken lines under a microscope; slow writing = solid lines under a microscope

failure, leaving properties in Bulacan and Manila. In 1952, petitioner Gan initiated proceedings in CFI Manila for the probate of a holographic will allegedly executed by the deceased. In the will, the Bulacan properties will go to her relatives while her spouse is to receive her Manila properties on the condition that he will built a health center in Bulacan in her name) The decedent’s surviving husband (respondent Yap) asserted that the deceased had not left any will nor executed any testament during her lifetime. The will itself was not presented during the trial. Petitioner tried to establish its contents and due execution from the statements of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez. According to the witnesses: a. The decedent executed a will on November 5, 1951 in her residence, in the presence of Felina who was invited to read it. Prior to the execution of her will, she told her cousin Vicente that she wanted to keep the will a secret b. Socorro and Rosario were also invited to read the will in the presence of Felina c. When the decedent was confined in the hospital, she entrusted the will (contained in a purse) to Felina The oppositors presented an alternate account: the decedent could not have executed the will on November 5 since on the very same day she suffered a serious heart attack and was constantly attended by her husband and her personal attendant, Mrs. Bantique.

ISSUE: May a holographic will be probated upon the testimony of witnesses who have allegedly seen the will and who declared that it was in the handwriting of the testator? Page | 56

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

HOLOGRAPHIC WILL AND ORDINARY WILL DISTINGUISHED NOTARIAL WILL Authenticity and due execution is necessary; hence the testimony of one subscribing witness is sufficient when there is no opposition; 3 if there is opposition Ordinary wills may be proved by testimonial evidence when lost or destroyed. Oral testimony is allowed because it is difficult to make 3 witnesses lie (besides their stories can be checked)

HOLOGRAPHIC WILL No need for witnesses PROVIDED that the will is ENTIRELY written, dated and signed by the hand of the testator himself The document ITSELF is a material proof of authenticity. If oral testimony is allowed, it would be easy for a man to commit fraud by forging a will and presenting it to unknowing witnesses

The present case raises the following doubts: 1. It is hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. 2. If the decedent wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? FOOTNOTE 8: Perhaps [the will] may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court. (This was used in the decision of Rodelas v. Aranza)

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

This is so because the only guarantee of authenticity (i.e., the handwriting of the testator) is not available for scrutiny. It is equally important to take notice of footnote no. 8 of the decision, which is the basis of the ruling in the subsequent case of Rodelas v Aranza. ATTY SEBASTIAN: Petitioner needed witnesses to prove the existence of the will. If the will is supposed to be a secret, why did the testator allow the witnesses to read the will. Since the will cannot presented, the holographic will cannot admitted to probate

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

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

HELD: Pursuant to Art 811, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and if no witness is available, experts may be resorted to. If contested, at least 3 identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwriting will. But a photo static copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs Yap, the court ruled that, “ the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have been and/or read such will. The will itself must be presented; Page | 57

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otherwise it shall produce no effect. The law regards the document itself as material proof of authenticity.” But in the footnote of said decision, it says that “Perhaps it maybe proved by a photographic or photo static copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court”. Evidently, the photo static or xerox copy of the lost or destroyed holographic will may be admitted because then, the authenticity of the handwriting of the deceased can be determined by the probate court.

Rodelas traces its antecedents to Gan v Yap, particularly in footnote no. 8 of the latter decision. In an obiter incorporated through a footnote, the court noted in Gan that a lost holographic will might be proved through a "photographic or photostatic copy" thereof, or perhaps even through a "mimeographed or carbon copy". Accordingly, the court in Rodelas reversed the order of the lower court dismissing the petition for probate (as well as the motion for reconsideration) by reason of the proponent's inability to produce the original copy of the alleged lost holographic will. It must be noted that Rodelas did not categorically rule on the admissibility to probate of a secondary evidence of the missing holographic will. It must be noted further that the dispositive portion of the decision ended at the point where the denial of the motion for reconsideration was set aside. It would seem that the logical result of such "setting aside" of the order would be the remanding of the case to the court of origin for further proceedings in accordance with the aforesaid decision. One final note: the court observed that with a photocopy of the lost or missing holographic will, the handwriting of the testator can be authenticated. This observation must be tested in the light of established principles governing the authentication of questioned documents, for it is sufficiently clear that an analysis of the handwriting of the testator based on a photocopy of the lost or missing holographic will cannot go beyond a comparison of strokes with an accepted standard. Circumstances such as speed of writing and the pressure of the handwriting cannot be tested based on a photocopy of the questioned document.

ATTY SEBASTIAN: SC reversed the probate court’s decision in dismissing the petition for probate of the holographic will. The probate court should have required petitioners to present secondary evidence instead of summarily dismissing the petition for probate. The probate court is now tasked to examine footnote 8 in Gan v. Yap.

AZAOLA V. SINGSON, 109 PHIL 102 (1960) FACTS: On September 9, 1957, Fortunata S. vda. de Yance died. Francico Azaola (Francisco) submitted for probate the holographic will of Fortunata S. vda. de Yance, whereby Maria Milagros Azaola was made the sole heir as against the nephew of the deceased Cesario Singson. Francisco testified that he recognized all the signature appearing in the holographic will as the handwriting of the testatrix. The probate was denied on the ground that under Art 811 NCC, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent “did not prove sufficiently that the body of the will was written in the handwriting of the testatrix. The proponent appealed, urging that he was not bound to produce more than one witness because the will’s authenticity was not questioned and that Art 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.

ISSUE: WON the proponent is required to present three-witnesses required under the first paragraph of Art 811

HELD: No. Since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, the Court is of the opinion that Article 811 cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied.. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, NCC), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses, they Page | 58

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must be witness “who know the handwriting and signature of the testator” and who can declare truthfully that the will and the signature are in the handwriting of the testator”. There may be no available witness of the testator’s hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Art. 811 may thus become an impossibility. The law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. The rule of this article requiring that three witnesses be presented if the will is contested and only one if no contest is had, was derived from the rule established for ordinary testaments. But it cannot be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 810), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Under the Art. 811, the resort to expert evidence is conditioned by the word’s “if the Court deem it necessary”, which reveal that what the law deems essential is that the Court should be convinced of the will’s authenticity. Where the prescribed number of witnesses is produced the court is convinced by their testimony that the will is genuine, it may be consider it unnecessary to call for expert evidence/ On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. The law leaves to the trial court if experts are still needed, no unfavourable influence can be drawn from a party’s failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.

The Court conclude that the rule of the first paragraph of Art. 811 of the Civil Code is merely directory and is not mandatory.

CODOY V. LUGAY, 312 SCRA 333 (1999) FACTS: On April 6, 1990. Evangeline Calugay, Josephine Salcedo and Eufemia Patigas who are the devisees and legatees of the holographic will of the decedent, Matilde Seno vda. De Ramoral, filed a petition for the probate of the will. Such was opposed by the two adopted children of Matilde, namely Eugenia Ramonal Codoy and Manuel Ramonal. The petitioners claimed that the will was a forgery and illegible. They expressed doubts as to the repeated appearance on the will of the signature of Matilde after the disposition of a property. Respondents presented six witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the will. The lower court denied the probate for insufficiency of evidence and lack of merit. In support, the respondents filed a notice of appeal and reiterated the testimony of the following witnesses: a. Augusto Neri-clerk of court, CFI- Misamis Oriental- He produced and identified the records of the case. The documents presented bore the signature of Matilde. This was mainly for the purpose of laying the basis for comparison of the handwriting of the testatrix with the writing treated or admitted as genuine by the party against whom the evidence is offered. b. Generosa Senon- election registrar of Cagayan de Oro- to produced and identify the voter’s affidavit of Matilde, but such was no longer available c. Matilde Ramonal Binanay- Matilde was her aunt and she lived with her for eleven years, accompanying Matilde when she collected rent from her tenants. She claimed to have acquired familiarity with Matilde’s signature, when Matilde issued the receipts. She claimed that at the time of her death, Matilde had left a holographic will dated Aug. 30, 1978 and all the dispositions therein, dates and signatures were that of Matilde. d. Fiscal Todolfo Waga- used to be a practicing lawyer and handled all the pleadings and documents signed by Matilde in connection with the proceedings of Matilde’s late husband. He claimed that Page | 59

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

the handwriting on the will of Matilde was familiar but he was not sure. e. Mrs. Vedad- employee of DENR- claimed that she was familiar with Matilde’s handwriting since she signed the documents in her presence when she was applying for pasture permit. f. Evangeline Calugay- claimed to have been adopted by Matilde since birth and that the signature appearing on the will is the true and genuine signature of Matilde.

ISSUES: 1.

2.

WON Art 811, providing that at least three witnesses explicitly declare the signature in a contested will as the genuine signature of the testator is mandatory or directory WON the witnesses sufficiently establish the authenticity and due execution of the holographic will

Evangeline Calugay never declared that she saw the deceased write a note or sign a document. Fiscal Waga expressed doubts as to the authenticity of the signature in the holographic will. As it appears in the above, the three witness requirement was not complied with. A visual examination of the holographic will convinced the court that the strokes were different when compared with other documents written by the testator. Therefore, the laws on this subject should be interpreted in such a way as to attain their primordial ends. But on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. The records of the case were remanded to the court of origin to allow the oppositors to adduce evidence in support of their opposition to the probate of the holographic will of Matilde.

HELD: FIRST ISSUE: As to No. 1, it is mandatory. The duty of the court is to exhaust all available lines of inquiry for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Art 811 provides, as a requirement for the probate of a contested holographic will that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. The language used in Art 811 is mandatory. The word “shall” in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word “shall” when used in a statute is mandatory. SECOND ISSUE: As to the second issue, the witnesses were not able to establish the authenticity and due execution of the holographic will. It cannot be ascertained that the holographic will was that written by Matilde. Not all the witnesses presented by the respondents testified explicitly that they are familiar with the handwriting of the testator. In the case of the Clerk of Court, he merely identified the record of Special Proceedings before said court. He was not presented to declare explicitly that the signature appearing in the holographic will was that of Matilde.

Codoy is an unusual case with an unusual decision. The bone of contention between the parties was whether or not the oppositors to the probate of a will may yet present evidence against the admission of the will, after they have unsuccessfully made a demurrer to evidence. In short, the core issue is whether the oppositors should be allowed to present controverting evidence after the demurrer was denied. As correctly ruled by the Supreme Court, the oppositors should be permitted to present their evidence. However, Codoy is a controversial decision as it held that the 3-witness rule in Article 811 of the Civil Code is a mandatory requirement in the case of contested holographic wills. Hence non-compliance therewith would be a fatal error. Azaola vs. Singson, a decision penned by Justice J.B.L. Reyes, held that the requirement in Article 811 is merely directory. Justice Reyes explained in detail the reason for such conclusion. Now, with Codoy reaching a different conclusion, there is now a divisional ruling that is diametrically opposed with a prior en banc ruling. But was it absolutely necessary for Codoy to disturb Azaola? I do not think so. Codoy could have been decided purely on the procedural issue that was raised. To support the conclusion reached by the Court, it would Page | 60

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certificate presented by Jose which indicated that Venancio was the son of Florencio Rivera and Estrudez Reyes

have been sufficient to discuss the deficient evidentiary basis for the admission of the holographic will to probate. It was totally unnecessary to rule that compliance with the 3-witness requirement in Article 811 is mandatory.

ISSUES:

ATTY SEBASTIAN: Azaola v. Singson is a decision en banc; Codoy is only a decision of the SC division. Res ipsa loquitur. Decision en banc contradicted by a SC division decision

HELD:

RIVERA V. IAC, 1982 SCRA 322 (1990) FACTS: In May 1975, Venancio Rivera, a wealthy man died. Petitioner Jose Rivera claimed to be the only heir and filed a petition for the issuance of letters of administration over Venancio’s estate. Said petition was opposed by respondent Adelaido, claimed that Venancio was his father and that the decedent died not die intestate but left 2 holographic wills. Adeilado then filed a petition for the probate of the wills but the same was opposed by Jose who reiterated that he was the sole heir of Venancio’s intestate estate Adelaido was subsequently appointed as special administrator. The trial court found that Jose was the son of a different Venancio Rivera who was married to a Maria Vital. As such, he had no claim to the estate. The will was also admitted to probate. To support his claim, Jose presented his birth certificate and a witness, Domingo Santos, who alleged that he saw Venancio and Jose several times. Jose also averred that Adelaido considered him a half-brother; and that Adelaido and his siblings were illegitimate children sired by Venancio with Maria Jocson. For his part, Adelaido alleged that his parents, Venancio and Maria Jocson, were legally married. He could not present his parents’ marriage certificate since the records were destroyed during the war but showed the following instead: a. His own birth certificate as well as those of his siblings, showing that they were the legitimate children of Venancio and Maria Jocson b. Atty. Morales who affirmed that he knew the deceased and his parents and maintained that the decedent introduced Maria Jocson to him as his wife c. Venancio’s birth certificate showing that his parents were Magno Rivera and Gertrudes delos Reyes as contrasted with the marriage

1. WON Jose is the son of the decedent Venancio 2. WON the three-witness rule is applicable in this case

FIRST ISSUE: No, Jose is not the son of the decedent. Jose’s arguments failed to prove: 1. That the Venancio Rivera as found in his birth certificate is the same as the decedent Venancio whose estate is in question (Jose cannot prove that Magno and Florencioo are one and the same person) 2. If it is true that he was the legitimate son of Venancio, why did Jose not assert his right as such when his father was still alive 3. Why did Jose not present his mother (Maria Vital) to support his allegations that she was the lawful wife of the decedent Based on the evidence presented, it may be concluded that Jose belonged to another family who had no relation whatsoever with the family of Venancio Rivera and Maria Jocson. Except for the curious identity of names of the head of each family, there is no evidence linking the two families or showing that the deceased Venancio was the head of both. SECOND ISSUE: No. The respondent court considered the wills valid because it found them to have been written, dated and signed by the testator himself in accordance with Article 810 of the Civil Code. It also held there was no necessity of presenting the three witnesses required under Article 811 because the authenticity of the wills had not been questioned. But the applicable provisions should be Art 811 NCC which provides that: In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If Page | 61

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

the will is contested, at least three of such witnesses shall be required. Since Jose Rivera is not the son of the decedent Venancio, and being a stranger, he has no personality to contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venancio Jr (respondent’s siblings) as having been written and signed by their father, was sufficient.

Under Art 811, if the authenticity of the holographic will is contested, three witnesses are required to identify the handwriting and signature of the testator. Failing which, or if the court is not convinced, expert testimony may be resorted to. Rivera presents a critical twist to the provision of law. Oppositor challenged the authenticity of the holographic will and claimed that in fact the decedent died intestate. This would have necessitated the application of the three-witness rule, where it not for the supervening finding of the court that the oppositor is not related to and in fact a stranger with respect to the decedent. Consequently, and despite his opposition, the three-witness rule is not applicable. Art812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. The dispositions written below the testator’s signature to the will are considered as independent of the will itself; hence they must be signed and dated by the testator. If one is not dated, even if signed, that particular disposition will be void without affecting the validity of the others or the will itself. An unsigned and undated postscript to a holographic will is invalid as a testamentary disposition.

ATTY SEBASTIAN: Each portion of the will (new disposition with date and signature) is a SEPARATE holographic will. Each date will determine the testamentary capacity of the testator. This is allowed because a holographic will is supposed to be a secret ADDITIONAL DISPOSITIONS IN A NOTARIAL WILL In a notarial will, additional dispositions found below the signature of the testator will make the whole will void because according to Art

805, the signature of the testator must be found at the end of the will. Therefore, should there be new dispositions in a notarial will, the same can only be introduced through a CODICIL. ADDITIONAL DISPOSITONS IN A HOLOGRAPHIC WILL 1. Add the dispositions below the signature of the will provided that said dispositions are also dated and signed and everything is written in the hand of the testator himself; 2. Insert additional matters or cancel dispositions provided that the same are written and signed by the testator himself without need of date; OR 3. Execute a valid codicil which may either be notarial or holographic

Art813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. The situation contemplated in Art 813 is one where there are various testamentary dispositions in a will, made by the testator presumably in different dates, which are signed but not dated. Should the last testamentary disposition be dated and signed, then all the dispositions above would be validated by this last disposition regardless of the number of the dispositions.

RULES IN CASE OF SUBSEQUENT DISPOSITIONS (ART 813) 1. If the dispositions are merely signed without the date the date, and the last disposition is signed and dated, the effect is that it validates the disposition preceding it.

2. If the additional dispositions in a holographic will are not in the handwriting of the testator and they are not signed by the testator, then these additional dispositions are not valid but the will itself remains valid. 3. But, if these additional dispositions are signed by the testator, the testator is owning or adopting the additional dispositions as his own. They will now form part of the will because it is now owned by the testator or adopted. In that case, the entire will is void. The will is not entirely in the handwriting of the testator. Page | 62

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

4. Several dispositions were signed but not dated and the last disposition has a signature and date – VALID o The date on the last disposition validates the dispositions preceding, whatever be the time of prior dispositions. This gives rise to the presumption that all the dispositions were made simultaneously. 5. Date only and the last disposition is dated and signed o Only the last disposition is valid, all the previous dispositions are void because the law says signed not dated. Only the disposition unsigned is invalid. 6. Not signed and not dated even if the last disposition is signed and dated – VOID

Art814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. Amendments may be done in a holographic will by cancellation, addition, erasure or alteration provided they are authenticated in the FULL SIGNATURE of the testator himself. The date is not required because it is presumed that the alteration to the will was made at the time or date of the execution. Any cancellation, addition, erasure or alteration in a holographic will is precisely executed in consideration of secrecy.

EFFECTS PERSONS

OF

INSERTION

OR

INTERPOLATIONS

BY

3RD

1. If the insertion was made by the hand of the testator himself and he has authenticated the same, it alters the will accordingly without affecting the will’s validity 2. If such were made by hand of the testator himself but was not authenticated (unsigned) by him, then they would be deemed as if not written at all and the will remains valid as before 3. If such were made by the testator but not handwritten (e.g., they were typewritten), whether or not authenticated by him, the entire will is nullified because it is no longer entirely in the hand of the testator

4. If such were made by a stranger and the testator has authenticated the same, then the entire will is also void because it is no longer written by the hand of the testator himself 5. If such were made by a stranger but was not authenticated by the testator, then such changes would be deemed as not written at all and the will remains valid as it was before. Any cancellation, insertion, erasure or alteration which was not authenticated by the testator does not affect his will simply because a mischievous person decided to put something to penalize the testator, on the other hand, even if done by a stranger, if the testator authenticated it, then it will affect the will because the testator meant that such would be part of the will. EFFECT OF LACK OF SIGNATURE Any cancellation, addition, erasure, or alteration must be authenticated by the testator. Failure to do so would result in the nullity of the cancellation, addition, erasure or alteration as if it was not written at all. However, if the cancellation, although not authenticated, nevertheless results in the revocation of the will, then although not valid as a cancellation, it is valid as a revocation.

CASES: KALAW V. RELOVA, 132 SCRA 237 (1984) FACTS: Private respondent Gregorio Kalaw, filed a petition for probate of the will of his sister. He claimed to be the sole heir. However, the will as first written, named Rosa Kalaw as the sole heir. Rosa opposed the probate of the will because the alteration, according to her was not authenticated by the signature of the testator as required by Art 814. Gregorio’s motion for reconsideration was denied and Rosa filed a petition for certiorari on the sole issue whether the original unaltered version of the will, instituting her as sole heir can be probated or not.

ISSUE: WON the entire will was invalidated because of the defective provision which had been altered but not authenticated

HELD: Yes, the entire will is invalidated. Although the general rule is that if there are insertions, cancellations etc which are not authenticated with the testator’s signature, such should be considered as not having Page | 63

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

been made and the remainder of the will stands valid. However, this particular disputed will contains one substantial provision. Therefore, the effect must the entire will is voided because nothing would remain in the will which could be considered valid since there was only one substantial provision. To state that the will as first written should be given effect is to disregard the change of mind of the testator. The institution of Gregorio as heir is not valid because it was not authenticated by as an heir is not valid because it was not authenticated by the testator with her signature. Rosa, on the other hand, cannot inherit because the cancellation of Rosa’s name was an act of revocation. As such, she cannot inherit. Revocation does not need the authentication of the testator.

Art 814 requires the authentication of any alteration in a holographic will. The failure to authenticate such alterations results in the invalidity of the desired change. However, where the testator canceled the name of the original heir, and substituted in lieu thereof another name, without the requisite authentication, the institution of the new heir is inoperative by reason of a failure to comply with the requirement of Art 814. Should the nullity of the alteration result in the effectivity of the original disposition? The court in Kalaw ruled in the negative, stating among other things, that the intention of the testatrix has become indeterminable. Nevertheless, an examination of the provision of Art 830 indicates clearly that "cancellation" is a mode of revocation. Can the institution of the original heir, therefore, be construed as having been expressly revoked by the cancellation of her name by the testatrix? If so, and considering that the subsequent institution of the second heir is inoperative, who inherits the estate of the deceased? ATTY SEBASTIAN: When Rosa’s name was cancelled, it meant a revocation of the will. Neither of them succeeded. Intestacy followed.

AJERO V. CA, 236 SCRA 488 (1994) FACTS: In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand. Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero Sr., and their children. Petitioners instituted special proceeding for allowance of decedent’s holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud and undue influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament’s body nor the signature therein was in decedent’s handwriting; it contained alterations and corrections which were not duly signed by decedent, and the will was procured by petitioner through improper pressure and undue influence. The petitioner was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot in Agusan del Norte, could not be conveyed by decedent in its entirety, as she was not its sole owner. On appeal, the petition for probate of decedent’s will was dismissed. The CA found that “the holographic will fails to meet the requirements for its validity.” It held that decedent did not comply with Art. 813 and 814 NCC. It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellation made thereon had not been authenticated by decedent.

ISSUE: WON failure to comply with Art. 813 and 814 form part of the requisites for the formal or extrinsic validity of a holographic will, thus justifying the disallowance of the will in its entirety

HELD: No. In the case of holographic wills, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Art. 810 of the New Civil Code. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Art 813 NCC shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. A holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Art 814. In the case of Kalaw v. Relova, the Court held:

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

Ordinarily, when a number of erasures, corrections and interlineations made by the testator in a holographic will have not been noted under his signature… the will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator’s signatures, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes

Ajero upholds the proposition that Art 813 and 814 do not form part of the requisites for formal or extrinsic validity of a holographic will. Thus, a failure on the part of the testator to observe the requirements of Art 813 and 814 does not justify the disallowance of the will. However, the relevant provisions may be disallowed. The court further stresses that proof of compliance with the requirement of Art 813 and 814 cannot ordinarily be dealt with during probate proper, because at this stage, the court’s area of inquiry should, in general be limited to the following issues: (1) whether the instrument submitted is indeed, the decedent’s last will and testament; (2) whether the will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had testamentary capacity at the time the will was executed; and (4) whether the execution of the will and its signing were voluntary acts of the decedent. Art815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Art816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Art817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. ART 815 FOLLOWS THE GENERAL RULE IN ART 17 NCC: That the law governing the formal validity of wills is the law of the place where it is executed. The Code did not mean to invalidate the will of a Filipino, executed in a foreign country, when it is made in conformity with our law and not in conformity with the law of the place of execution.

EXCEPTION TO ART 815: Filipinos cannot execute a valid joint will, even in a foreign country. (Art 819)

CONFLICTS RULE IN SUCCESSION: These Articles govern the resolution of complications that may arise in the application of the laws of different jurisdictions. These rules seek to address the conflicts that arise from the place of the will’s execution. These conflicts rules are important only if the probate proceedings shall be conducted in the Philippines. If the probate proceeding shall be conducted in a foreign jurisdiction, then the conflicts rues of that foreign nation must be observed.

ALLOWANCE OF WILLS PROBATED IN A FOREIGN COUNTRY Under Rule 77 ROC, wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed and recorded by the proper CFI in the Philippines. The probate of the will in the foreign state or country, however, must be proved in the same manner as any other foreign judgment; in the absence of such proof, the will cannot be proved in the Philippine, without actually showing its execution in accordance with any of the laws mentioned in this article.

Alien’s will in the Philippines – If an alien executes a will in the Philippines, not in conformity with our law, but in conformity with the law of his own state or country, the will can be probated in the Philippines.

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

Law on Intrinsic Validity – The provisions of Art 815 to 817 refer to the formality of wills executed by persons outside of their own state or country. With respect to the intrinsic validity of the provision of the will, the second paragraph of Article 16 of the Code provides that the national law of the deceased shall apply. The place of execution does not affect the intrinsic validity of the contents of the will.

TABLE OF FORMALITIES Foreign element sought to be addressed: Applicable law:

Non-Resident Filipino Domicile

Philippine (Art. 17)

law

Domiciliary law Law of the state where he is domiciled

Resident Alien Citizenship

Philippine (Art. 816)

law

Testator’s national law (Art. 816)

Non-Resident Alien Domicile and Citizenship

Philippine (Art. 17)

law

Testator’s national law (Art. 817)

Domiciliary law

Lex loci celebrationis Law of the place where the will is executed (Art. 17)

CASES: VDA. DE PEREZ V TOLETE, 232 SCRA 722 (1994) FACTS: Dr Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens and residents of New York, each executed a will also in New York, containing provisions on presumption of survivorship (in the event that it is not known which one of the spouses died first, the husband shall be presumed to have predeceased his wife).

Later, the entire family perished in a fire that gutted their home. Thus, Rafael, brother of Jose, who was named trustee in Jose’s will, filed for separate probate proceedings of the wills. Later, Evelyn’s mother, Salud Perez, filed a petition for reprobate in Bulacan. Rafael opposed, arguing that Salud was not an heir according to New York law. He contended that since the wills were executed in New York, New York law should govern. He further argued that, by New York law, he and his brothers and sisters were Jose’s heirs and as such entitled to notice of the reprobate proceedings, which Salud failed to give. For her part, Salud said she was the sole heir of her daughter, Evelyn, and that the two wills were in accordance with New York law. But before she could present evidence to prove the law of New York, the reprobate court already issued an order, disallowing the wills.

ISSUE: WON the reprobate of the wills should be allowed HELD: Yes, it should be allowed after proper notice is given to the brothers and sisters of Dr. Jose Cunanan Extrinsic Validity of Wills of Non-Resident Aliens The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the Article 816 of the Civil Code. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. Evidence for Reprobate of Wills Probated outside the Philippines The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills. Except for the first and last requirements, the petitioner submitted all the needed evidence. Page | 66

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them.

This case outlines the procedure for the reprobate of a will that was executed and probated in accordance with foreign law. Art818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Concept of Joint and Mutual Will Joint Will – is one where the same instrument is made the will of two or more persons and is jointly signed by them. The will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will, and be again probated at the death of the other as the will of the latter. This is usually executed to make testamentary dispositions of joint property. Mutual wills – the separate wills of two persons, which are reciprocal in their provisions. Joint and Mutual Will – is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shoes on its face that the devisees are made one in consideration of the other.

RATIONALE FOR PROHIBITION 1. A will is purely personal and unilateral act and this is defeated if two or more persons make their wills in the same instrument. 2. A will involves a gratuitous disposition of property and no one can validly determine the extent of one’s generosity except the testator. 3. It is contrary to the revocable character of a will; if one testator revokes his will by burning the instrument, the other testator would have no document left containing his testamentary dispositions.

4. A joint will, if mutual or reciprocal, may expose a testator to undue influence, and may even tempt one of the testators to kill the other. 5. Joint wills present an opportunity for one party, who is more dominant than the other to exercise undue influence over the other in the execution of a will resulting in a vitiation of consent 6. In terms of procedure, when the joint will is presented for probate, it may happen that the same becomes operative with respect to one but not with the other testator such as when one is incapacitated and lacks testamentary capacity.

PAULA DE LA CERNA V. MANUELA REBACA-POTOT, 12 SCRA 576 (1964) FACTS: In May 1939, spouses Bernabe Dela Cerna and Gervasia Rebaca, executed a joint last will and testament. The joint will stated that: a. The two parcels of lands acquired by the spouses during their marriage will be given to Manuela Rebaca (niece) b. While each of the testators is alive, he or she shall continue to enjoy the fruits (usufruct) of the aforementioned properties Three months later, Bernabe dela Cerna died and the will was submitted to probate by Gervasia and Manuela. Upon the death of Gervasia, the will again was submitted for probate. CFI Cebu refused the probate for being a void will, since it was in the nature of a joint will which was prohibited by the Civil Code

ISSUE: WON the joint will was valid Held: No, the joint will was only valid with respect to the properties of Bernabe. The final decree of probate, entered in 1939 by CFI Cebu (when the testator Bernabe died) has conclusive effect as to his last will and testament despite the fact that the Civil Code had already decreed the invalidity of joint wills. The error committed by the probate court was an error of law, that should have been corrected by an appeal, but which did not affect the jurisdiction of the probate court, nor conclusive upon its final decision however erroneous.

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

The probate decree in 1939 could only affect the share of the deceased husband, Bernabe. It could not include the disposition of the share of the wife, Gervasia, who was then still alive and over whose interest in the conjugal properties the probate court acquired no jurisdiction. This is because prior to the New Civil Code, a will could not be probated during the testator’s lifetime. It follows that the validity of the joint will, insofar as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus, the decision of the CFI that the joint will is probated by the law is correct as to the participation of the deceased Gervasia as to the properties in question. Therefore, the undivided interest of Gervasia should pass on her death to her heirs intestate, and not exclusively to the testamentary heir (Manuela), unless some other valid will in her favor is shown to exist, or unless is the only intestate heir of Gervasia

Art 818 prohibits the execution of joint wills, whether they be for the reciprocal benefit of the testators, or for the benefit of a third person. However, it must be noted that if a probate court erroneously admitted a joint will to probate, the error thus committed would be considered an error of law and not of jurisdiction. Therefore, such an error must be corrected by appeal; failing which the erroneous decision would become final. The foregoing notwithstanding, please note that in the following case, the joint will, while deemed operative with respect to the husband, was considered void as to the wife. The issue of jurisdiction should be noted in particular. ATTY SEBASTIAN: Doctrine of finality of judgment – There has been a final judgment of the probate court. The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world

Art820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. Art821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. REQUIREMENTS OF WITNESSES TO NOTARIAL WILLS 1. Of sound mind 2. At least 18 years of age 3. Not blind, deaf or dumb, able to read and write

BASIS FOR STRINGENT QUALIFICATIONS When one is called to be a witness to a will, the law is more stringent because during the probate proceedings, a witness will have to testify on matters material to the admission or denial of the will Blind, deaf of dumb cannot be witness to the execution of a will since such witnesses are generally required to identify the will, certify that certain formalities were complied with, attest to the execution of the will, and communicate what they saw or heard during the execution of the will to prevent fraud. Such persons with impairments cannot communicate much less perceive what has transpired during the execution of the will if their sensory faculties are impaired A witness is also required to possess a certain level of education, intelligence and training so that there is some level of assurance that the witness will be credible and reliable and that his account of what went on is both accurate and true.

DISQUALIFICATION UNDER ART 821 1. Any person not domiciled in the Philippines – Mere residence is not enough; the term “domicile” is to be understood as defined in Art 50, which is the habitual residence of a person Page | 68

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

o o

No particular citizenship is required for witnesses to wills. As such, foreigners may be witnesses, provided they are domiciled in the Philippines When the will is executed in a foreign country, it is not required that the witnesses be domiciled in the Philippines since the purpose of such requirement is not served

The purpose of this requirement is for convenience so that such witness can be within the reach of the compulsory processes of the court, particularly subpoena. If the witnesses to a will are non-residents of the Philippines, the court cannot issue subpoenas to compel them to attend a hearing and testify in court because subpoena is territorial in its effect.

PURPOSE:

2.

Those who have been convicted of falsification of a document, perjury of false testimony – It is presumed that such a witness cannot be relied upon for truthfulness. The law qualifies the witnesses so that the issue of competence and credibility do not arise. Conviction for any other crime, however, is not a disqualification.

COMPETENT WITNESS

WITNESS

DISTINGUISHED

FROM

CREDIBLE

Competence is determined by the Rules of Court. A person is competent if he possesses all organs of perception and, at the same time, not legally impaired since such person can perceive and communicate that perception to another. Credibility, on the other hand, is the sum total of a person’s character or traits and person’s general reputation as member of the community which all point out that such person can be believed. However, credibility is not quantifiable. Thus, credibility is always directed to the sound discretion of the court who is to receive the evidence. Art 805 NCC requires that the witnesses be “credible” or competent; that is one who is qualified to testify in court, not disqualified by any natural, moral or legal cause. (Tolentino, p.123)

NOTE: Failure to comply with all the requirements do not mean that the will cannot be allowed for probate, it simply means that it will be more difficult for the will to be allowed for probate.

ACKNOWLEDGING OFFICER AS WITNESS The notary public before whom the will is acknowledged cannot be considered as a third instrumental witness since he cannot acknowledge before himself his having signed the will. A notary public cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will; this would place him in an inconsistent position (See Cruz v. Villasor)

CASE: GONZALES V. CA, 90 SCRA 187 (1979) FACTS: Gabriel died a widow. Santos, a niece of the deceased who lived with her prior to the time of her death, filed for a petition for the probate of her will. The three instrumental witnesses of the will included a family driver, a housekeeper, and a piano teacher. The petition as opposed by Rizalina Gonzales, one of the nieces named in the will, who contends that the will was not executed and attested as required by law as there was absolutely no proof that the 3 instrumental witnesses were credible witnesses, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, and reputed to be trustworthy and reliable. She alleged that “credible” is not synonymous with “competent”

ISSUE: WON the witnesses are credit witnesses as required under Art 805

HELD: Yes. Art 820 NCC provides the qualification for the witness to the execution of the will while Art 821 sets forth the disqualification. Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trail as to his good standing in the community, his reputation for trustworthiness and reliability, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications in Art 820 are complied with, such that soundness of his mind can be shown or deduced from his answers to the questions propounded to him that his age is shown from his appearance, testimony, as well as Page | 69

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc that he is not blind, deaf or dumb, that he is able to reqad or write, and that he has none of the disqualification in Art 821. The term “credible” as used in Art 805 should not be given the same meaning it has under the Naturalization law in that the witnesses must prove their good standing and reputation. In probate proceedings, unlike in petitions for naturalization, the instrumental witnesses are not character witnesses for they merely attest to the execution of a will, and affirm the formalities attendant to said execution. The relation of the beneficiary of the will to the testator does not disqualify one to be a witness. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that the said witness must be credible i.e., his testimony may be entitled to credence. In a strict sense, the competency of a person to be an instrumental witness to a will is determined by Art 820 and 821, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the court that said witness is telling the truth.

Art 805 requires the notarial will to be attested by at least three credible witnesses. Art 820 prescribes the qualifications of a witness, while Art 821 enumerates the disqualifications. Thus, an issue arises as to whether or not a witness competent under Arts 820 and 821 is necessarily credible as required by Art 805. Gonzales makes a distinction between a competent witness and a credible witness. Furthermore, Gonzales stresses that competence may be proved or inferred; whereas, credibility, which is a matter to be determined by the court, is presumed unless evidence to the contrary is presented. Art822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. A person is supposed to possess all the qualifications and none of the disqualification at the time he is to become a witness to the execution of the will. Subsequent incapacity of the witness will not invalidate the will because his competence is determined at the time of the execution of the will. However, it may impair or prejudice a witness’ credibility as a witness if he subsequently commits a crime enumerated in Art 821 NCC.

Art823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. Art 823 does not disqualify a devisee, legatee, or the spouse, parent or child of such devisee or legatee, from becoming witness to a will. If he is credible and not disqualified under Art 821, he is a competent witness. BUT the devise or legacy in his favor, or in favor of his spouse, parent or child, will be VOID. Hence, Art 823 does not refer to disqualification to be a witness but a disqualification to inherit. The disqualification is intended to apply to one succeeding by will, and it is not material in what concept he succeeds. This is also based on the rule on relative incapacity under Art 1027(4) which makes no distinction between heirs and devisees or legatees.

PERSONS DISQUALIFIED UNDER ART 823 1. Any person who is a witness to and at the same time, is an heir, devisee or legatee in the same will 2. Also included are the spouse of the witness (if there is already a legal separation, the witness-spouse can be a witness even if the heir-spouse is to be a beneficiary as the property regime is already extinguished); parent of

witness; child of the witness; any person claiming against the witness, his spouse, parent or child RATIONALE FOR THE DISQUALIFICATION 1. As to the witness, his spouse, parent or child – Under the situation envisioned by Art 823, such witness or their above-mentioned relatives will consciously or unconsciously give a false testimony to protect is interest; otherwise he will not be able to inherit. Page | 70

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

2. As to persons claiming under the witness, his spouse or child – A 3rd person who is to receive a benefit from the witness-heir, the spouse, parent or child or such witness-heir, is also disqualified since such 3rd person will definitely give a favorable testimony since it will benefit him indirectly

EXCEPTION TO THE DISQUALIFICATION If there is a substitute witness (4th witness) since the beneficiary does not have to testify.

Art824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. The charge referred to in Art 824 is a debt of the estate of the testator which will be paid even without a provision in the will during the liquidation of the estate. However, if the creditor receives part of the estate as an heir, legatee or devisee, and at the same time, he is a witness to such will, he is disqualified to inherit based on the prohibition in Art 823.

Art1027. The following are incapable of succeeding: XXX (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children

Art825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered.

ART 823 AND 1027 PAR 4 DISTINGUISHED

Art826. In order that a codicil may be effective, it shall be executed as in the case of a will.

ART 823 A witness cannot be a beneficiary in the will The gift is declared void and for which reason the witness cannot receive it th Nullity is lifted if there is a 4 witness

ART 1027 PAR 4 Same Nothing is said about the gift but the witness cannot receive it Nullity is not lifted even if there is th a 4 witness

There is no conflict between Art 823 and 1027 par 4. Art 823 renders the disposition void in favor of the attesting witness while Art 1027 renders the witness incapacitated to inherit. However, if there are at least 3 other witnesses other than the heir instituted, such witness can still testify since the possibility of having a tainted testimony will no longer be present. Art 823 speaks of the qualifications or disqualifications of witnesses while Art 1027 speaks of capacity to succeed.

CODICIL – a supplement or addition to a will, made after the execution of a will and annexed to be taken as part thereof, by which any disposition made in the original may be explained, or added to, or altered. If a subsequent instrument explains the original will, or alters or adds to it, then it is a codicil. But if a later instrument makes dispositions independent of those in the original will, without explaining or modifying such original will, then it is a new will

REQUISITES OF A VALID CODICIL 1. 2. 3. 4. 5.

It It It It It

is a supplement or addition to a will is made after the execution of the will is to be annexed and taken as part thereof explains, adds or alters the original will must be executed following the formalities of a will

EFFECTS OF THE EXECUTION OF A CODICIL While treated as an independent document, a codicil also serves as a supplement or an annex to the will itself; hence, any codicil executed before a will is invalid. Page | 71

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

Art827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. Incorporation by reference is an exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be admitted to probate. If a will duly executed and witnessed according to the requirements of the law, incorporates in itself by reference any document or paper not so executed and witnessed, whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred therein, will take effect as part of the will and be admitted to probate as such. To establish that it is a part of a will by incorporation, in the will: 1. There must be a distinct reference so such writing 2. The reference must indicate that the writing was already made before the execution of the will 3. It clearly appears from the face of the will to have been the wish of the testator REQUISITES FOR INCORPORATION BY INFERENCE 1. The document or paper referred to exists at the time of the execution of the will (need not be stated in the will itself) 2. The will must clearly describe and identify the document i.e., the number of pages thereof, its title and/or its nature (clear identification in the will)

3. The document referred to must be identified by clear and satisfactory proof as being the document referred to in the will (to substantiate the authenticity of the document referred to in the will) 4. The required signature of the testator and witnesses on every page of the document EXCEPTION: voluminous books of account or inventories (to prevent insertion or deletion of pages)

D. REVOCATION OF WILLS Art828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. REVOCATION BY OPERATION OF LAW

Revocation is an inseparable quality of every will since wills by their nature are ambulatory (they can be revoked anytime during the lifetime of the testator) and inoperative until the death of the testator. Moreover, the dispositions in a will are acts of liberality since there is no consideration given. Hence, there is no contractual obligation on the part of the testator to be bound by his original testament. Any provision in the instrument declaring the will irrevocable is void. A will may be revoked at pleasure. Revocation is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act.

REVOCATION AND NULLITY DISTINGUISHED

Both revocation and nullity of wills have the common purpose of depriving a last will of legal effect. But they differ in the following:

REVOCATION Revocation is by act of the testator Revocation presupposes a valid act Revocation takes place during the lifetime of the testator

NULLITY Nullity proceeds from law Nullity is inherent in the testament, be it an intrinsic or extrinsic effect Nullity is invoked after the death of the testator by his intestate or compulsory heirs Page | 72

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

The testator cannot renounce the right to revoke

The nullity of a will can be disregarded by the heirs through voluntary compliance therewith

Art829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. CONFLICTS RULES IN REVOCATION

1. If the act of revocation takes place in the Philippines, it is essential that it must be done in accordance with the laws of the Philippines. This applies whether the testator is domiciled in this country or in some other country 2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines, it is essential that it must be done in accordance with the laws of the Philippines 3. If the revocation takes place outside the Philippines, by a testator who is not domiciled in the Philippines, it is essential that it must be done either in accordance with the laws of the place where the testator had his domicile at the time of the revocation or the law of the place where the will was made.

Art830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized

destruction, cancellation, or according to the Rules of Court.

obliteration

are

established

There is revocation by implication of law when certain acts or events take place subsequent to the making of a will, which nullify or render inoperative either the will itself or some testamentary disposition. No provision of law actually revokes an entire will. Only specific provisions in the will may be revoked by implication of law. The following are examples which revoke certain dispositions in the will by operation of law: 1. Art 957 regarding the nullity of legacies or devises by transformation, alienation, or loss of the subject matter of the legacy or devise 2. Art 1032 regarding the incapacity of certain individuals to succeed by reason of unworthiness such as abandonment or corruption of children, conviction of an attempt against the life of the testator, false accusation of a crime for which the law prescribes imprisonment for 6 years or more, those persons who should cause the testator to make a will or to change one already made through fraud, violence, intimidation, or undue influence, and those persons who shall forge a supposed will of the decedent 3. Art 936 in relation to Art 935 concerning the legacies of remission against third persons. The legacy of credit or remission of a debt shall lapse if the testator, after having made it should bring an action against the debtor for the payment of his debt, even if such payment should not have effected at the time of his death 4. Art 854 regarding preterition which shall annul the institution of an heir, but the devises and legacies shall be valid insofar as they are not inofficious 5. Art 83(4) FC where a decree of legal separation shall disqualify the offending spouse from inheriting from an innocent spouse by intestate or even by testamentary succession Page | 73

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc 6. Art 43(5) FC where the termination of the subsequent marriage shall disqualify the spouse who contracted the subsequent marriage in bad faith to inherit from the innocent spouse by testamentary and intestate succession 7. Art 44 FC in cases where both spouses of the subsequent marriage acted in bad faith, all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. Furthermore, Art 50 FC reiterates the disqualification to inherit in cases of marriages which are declared void ab initio or annulled by final judgment under Art 40 and 45.

REVOCATION BY THE EXECUTION OF A SUBSEQUENT DOCUMENT

In order that a former will may be revoked by a subsequent will, it is necessary that the latter will should be valid and executed with the formalities required for the making of wills. The subsequent will containing a clause revoking a previous will should be probated and that there is such relation between the revocatory clause and the will that contains it. (Tolentino, p. 132) 1. Express Revocation – When the revoking document, will or codicil has an express provision (revocatory clause) which revokes the previous one. Express revocation may be made conditional upon a future event, e.g. when one who has made 2 wills executed another instrument in which he provided that if he should live 3 months one should be his will, if he died before that time, the other 2. Implied Revocation – When the revoking document or will contains provisions or dispositions which are inconsistent with those of a previous will such tha thte later provision is the one given effect. The changes in the later document indicate a change of mind of the testator which must be given effect

REVOCATION BY OVERT ACTS

The requirements to have a valid revocation by overt acts are: 1. Testamentary capacity of the testator at the time of the revocation – Testamentary capacity is required at the time of the revocation of the will to insure

the intelligence of the act considering that revocation partakes of a the nature of a property disposition which prevents those persons stated in the will to receive properties from the testator. Consequently, if an insane testator destroys his will, it must be affirmatively shown that he did so during a lucid interval; otherwise the revocation is of no effect. 2. Overt acts –The overt acts of revocation are the burning, tearing, cancelling, and obliterating of a will. The mental process or intent to revoke must concur with the physical fact or actual destruction of the will 3. Completion of the subjective phase of the act – The act of revocation must be complete in the mind of the testator by presenting proof of circumstances to show that the testator already believed that the will was already revoked by his overt acts event though his acts did not result to the intended revocation. The act of destruction is considered complete and the intention to revoke carried out, if the will bears on its face any evidence of the act. But a slight destruction in itself is to sufficient to work revocation unless there is other evidence to show the intention to revoke; if there is no animus revocandi the will stands. However, if the complete destruction of the will is prevented by a third person and not to a change of intention on the part of the testator, the will is already considered revoked (Tolentino, p. 134) 4.

Intent to revoke or Animus revocandi – Intent alone is not enough. Any of the acts enumerated in law must appear to have been done.

PRESUMPTION OF REVOCATION When the will was last found to be in the possession of the testator and the same can no longer be found despite diligent search, then the will is considered revoked.

CASES: GAGO V. MAMUYAC, 49 PHIL 902 (1927) FACTS: The testator Miguel Mamuyac died on January 2, 1922. Within the same month, Gago presented to court a will supposed to Page | 74

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

have been executed by the testator on July 27, 1918. The will was not admitted on the ground that the testator had, on April 16, 1919, executed a new will and testament. Gago then petitioned for the nd probate of the 2 will which was denied again by the court on the ground that the same will had been revoked by the testator as testified by Fenoy, the person who typed the will and Bejar, to whom a house and lot in the 1919 will was sold to. Another witness testified that the 1919 will was in the possession of the testator but could not be found after his death. It was also successfully established that another will was executed in 1920. The 1919 will presented was found by the lower court to be a mere carbon copy of the original. ISSUE: WON the 1919 will was cancelled

HELD: Yes. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. CAB: The fact that the original 1919 will could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, the Court concluded that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence.

Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator.

A will being essentially ambulatory, it may be revoked at any time by the testator at any time prior to his death. Article 830 enumerates the modes of revocation. Gago holds that a revocation of the will may be implied if the testator in his lifetime had ready access to the same, and that after his death the will cannot be found. The presumption, while disputable, may be reinforced by testimony regarding the circumstances of the alleged revocation of the will. And if the presumption of revocation should apply, a duplicate copy of the said will cannot be admitted to probate. TESTATE OF ADRIANA MALOTO V. CA, 158 SCRA 451 (1988) FACTS: Adriana Maloto was initially believed to have died without a will so an intestate proceeding was commenced by her heirs, niece and nephew. During the pendency of this action, said heirs decided to extrajudicially settle the estate of Adriana by dividing it into 4 equal parts among themselves, which was approved by the court. However, 3 years after said extrajudicial settlement, a document purporting to be the last will and testament of Adriana was discovered. In said will, all 4 heirs were instituted as heirs but 2 of them were bequeathed bigger and more valuable shares than they earlier executed. The will also have devises and legacies to other parties. In the petition for probate of the discovered will of Adriana, the trial court rule that the said will had already been revoked by the testatrix based on the testimony of Adriana’s househelp that she burned said will on the instructions of the testatrix. Thus, the trial court denied the petition for Page | 75

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

probate. On appeal, CA although having found contradictions in the allegation of the revocation of the will by burning, found animus revocandi in the destruction of the will to be present

ISSUE: WON the will of Adriana had been effectively revoked HELD: No. It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction was coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating or cancelling the will carried out by the testator or by another person in his presence and under his express direction. The document or paper burned by the househelp was not satisfactorily established to be a will at all, much less the will of Adriana. The burning was also not proven to be under the express direction of Adriana and in her presence. The court entered for the allowance of Adriana Maloto’s last will and testament.

The burning of a will is one of the modes of revocation. Under Art 830, the act of destroying the document must be done by the testator himself and if done by a third person, it must be executed pursuant to the testator’s express direction and in his presence. Maloto reversed the CA which upheld the revocation of the will on the basis of sufficient proof of animus revocandi on the part of the testator. While there are various requisites for the validity of a revocation by means of an overt act (which requisites were not discussed in Maloto), this case holds that if a third person executed the overt act of destroying the will, the same must be upon the express direction of the testator and his presence. Both requisites must be duly proved, otherwise evidence intended to establish the due execution and the contents of the destroyed will might be admissible. If the due execution and the contents of the destroyed will is

sufficiently established, the will may be admitted to probate as a which had been invalidly revoked. Art831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. IRRECONCILABLE INCONSISTENCIES There must be two documents because implied revocation is based on irreconcilable inconsistencies. If there are simple inconsistencies, it does not necessarily equate to an implied revocation, since the provisions may still be reconciled. In case there can be no effective reconciliation of the conflicting dispositions, the later expression will prevail on the basis of the presumption that there is a change of mind on the part of the testator.

Art832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. DEPENDENT RELATIVE REVOCATION The subsequent will shall only revoke the old will if it is admitted to probate. The validity of the later will is a condition for the revocation of an old one. There is such a relation between the revocatory clause and the will which contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of law, neither would the revocatory clause therein produce legal effects. Thus, the codicil must first be admitted to probate in order for the revocation to take effect. Stated otherwise, the revocation of the first will is dependent on the validity and the admission to probate of the second will.

ATTY SEBASTIAN: THEORY OF DEPENDENT RELATIVE PROBATION – subsequent will is only effective if it is admitted to probate, otherwise the prior will is admissible to probate (Art 832)

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

Art833. A revocation of a will based on a false cause or an illegal cause is null and void. FALSITY OF CAUSE This article states an aspect of the doctrine of dependent relative revocation in Art 832. If the act of revocation is induced by a belief which turns out to be false, there is no revocation. The fact, with regard to which the mistake was made, must however appear upon the face of the instrument. Parol evidence is not competent to prove that a revocation unconditional on its face was induced by a false assumption of fact or law. But the revocation would be operative if it appears that the testator only alleged the belief as a reason for revoking, intending the will to revoke absolute, whether such belief were true or false. And if the revocation be made dependent merely upon information received by the testator, or upon his opinion, the revocation is valid although the testator may have been misinformed, or may have formed his opinion under a misapprehension. But where the facts alleged by the testator were peculiarly within his knowledge, or the testator must have known the truth of the facts alleged by him, it does not matter whether they are true or not; the revocation in such case is absolute.

ATTY SEBASTIAN: For Art 833 to apply, the false cause must be EXPRESSLY stated in the subsequent will, because of Parol Evidence Rule

Art834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. RATIO: The recognition does not lose its legal effect even if the will is revoked, because the recognition is not a testamentary disposition. Thus, the recognized natural child can demand his rights even if the will is revoked.

E. REPUBLICATION AND REVIVAL OF WILLS Art835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. Art836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. REPUBLICATION – a method by which the testator restores to validity as his will an instrument formerly executed by him as his will which was originally invalid for want of proper execution

TYPES OF REPUBLICATION 1. Express Republication or Re-execution – A will which is void as to form may be republished through reexecution, i.e. the whole document must be re-written o Presence of revocatory clause; there is a clear and express statement that the testator is revoking his prior will o Revival does NOT apply Purpose: a. To revoke any will the testator may have written but subsequently forgotten b. To prevent anyone from introducing a fake will

2. Implied Republication or Republication by Reference – A will which is valid as to form but void as to other aspects, may be republished by republication by reference, i.e. the execution of a codicil which contains sufficient reference to the previous will o See for example, Kalaw v. Relova o There is irreconcilable inconsistencies (X cannot give to Y what was bequeathed to Z) Page | 77

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc o Whichever is the latest expression of the testator prevails o Dispositions must be irreconcilable – there is no way of making them both operative (cannot give effect to both wills simultaneously) a. Complete Revocation – when the subsequent will is irreconcilable with the entire previous will b. Partial revocation – when the subsequent will is only irreconcilable with certain specific dispositions of the prior will o When a will is revoked or repealed according to the provisions of the law = will dies (becomes invalid)

Under Art 836, a duly executed codicil operates as a republication of the original will and makes it speak from the date of the codicil even when the original will is only referred to in the codicil while under Art 835, a will void as to its form cannot be republished by mere reference, but must be reproduced in the subsequent instrument. Art 836 must be considered as the general rule, and Art 835 as the exception. Reproduction in the codicil is required only when the original will is void as to its form; in all other cases, reference to the original will suffices to republish it through the codicil. Thus, a codicil may republish and validate a will which was originally void for want of testamentary capacity or on account of undue influence upon the testator.

EFFECT OF REPUBLICATION The republished will shall speak as of date of republication and shall be governed by the formalities required by law at the time of the republication.

Handwritten and dated – e.g., I hereby republish my earlier will dated ____ Republication by re-execution – if the will is void as to form, it has to be re-executed o

b. 2.

Revival of wills – if the prior will is implicitly revoked by

subsequent will o Applies only to implicit revocation o E.g., will#1 all to X; will#2 all to Y; both wills valid as to form. If will #2 is revoked, will#1 is revived. If will#2 is more recent, it supersedes will#1. Will#2 can be revoked by overt act of destroying will#2

Art837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. Republication takes place by an act of the testator, while revival takes place by operation of law. Republication can apply to wills which were expressly and impliedly revoked, while revival can apply only to impliedly revoked wills. EXAMPLE: X was named the universal heir in will #1. Testator later changed his mind and makes Y the new universal heir in will #2. If the testator revokes will #2 by a new will or by an overt act then will #1 will be revived. But if will #2 expressly revokes will #1, then will #1 will not be revived even if will #2 is subsequently revoked because revival takes place only if there is implied revocation.

F. ALLOWANCE AND DISALLOWANCE OF WILLS

Can a revoked will be resurrected? REVIVAL AND REPUBLICATION OF WILLS 1. Republication – one of the modes of bringing back to life a

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

will that has been revoked or a will that has lost its validity Publish – to make known a. Republication by reference – a will which is valid as to form but the testator wishes to bring back to effect again by writing a codicil

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. Page | 78

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. PROBATION – a special proceeding for establishing the validity of a will. It seeks to prove that the instrument submitted is the will of the testator, that it was executed according to the formalities prescribed by law, and that the testator had testamentary capacity at the time of the execution. Probate proceedings are in the nature of a proceeding in rem, i.e. the decree of probate is binding on all persons in interest whether they appear to contest the will or not.  No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court (Art. 838)



The procedure to be followed is that which is provided for in the New Rules of Court.

KINDS:

1. Ante Mortem – The testator tests the validity of his will before the probate court DURING his lifetime (NCC innovation)

2. Post Mortem – The probate proceedings are held AFTER the death of the testator

ADVANTAGES OF ANTE-MORTEM PROBATE 1. Fraud, intimidation and undue influence are minimized because the courts will have an easier time determining the mental condition of the testator while he is alive. 2. If the will does not comply with the requirements of law, it can be corrected immediately 3. If probated during the lifetime of the testator, the only question left after his death is the intrinsic validity of the dispositions NECESSITY FOR PROBATE: Certain safeguards must be in place to prevent forgery and other acts of unscrupulous individuals and to insure that the testator understood and meant what he placed in the will.

QUESTIONS TO BE DETERMINED BY THE PROBATE COURT

The jurisdiction of the probate court is limited to the following issues 1. Question of Identity – Whether the instrument offered for probate is the last will and testament of the decedent 2. Question of Due Execution – Whether the will was executed according to the formalities required by law 3. Question of Testamentary Capacity – Whether the testator had testamentary capacity at the time of execution EXCEPTION: For practical considerations:  In Nuguid v. Nuguid (GR NO. L-23445, June 23, 1966), the Supreme Court held that, if the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, Page | 79

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety. 

In Nepomuceno v. CA (GR No. L-62952 , October 9, 1985), the Court held that “the court can inquire as to the intrinsic validity of the will because there was an express statement that the beneficiary was a mistress.”

Note: Criminal action will NOT lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction (Mercado v. Santos, GR No. 45629, September 22, 1938).  The fact that the will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation of a codicil provided it complies with all the formalities for executing a will. It is not necessary that the will and codicil be probated together as the codicil may be concealed by an interested party. They may be probated one after the other (Macam v. Gatmaitan, GR No. 40445, August 17, 1934). 

When a will is declared void because it has not been executed in accordance with the formalities required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy in compliance with a clause in the defective will, the payment is effective and irrevocable.

STAGES OF PROBATE PROCEEDING 1. Probate – Where the court determines the existence of testamentary capacity, due execution and identity of the instrument with that of the testator’s will. (Extrinsic validity of the will) 2. Distribution – Where the will must be enforced in accordance to the provisions of the will so long as it does not violate the law, especially the provisions on legitime and qualifications of the beneficiary to succeed. (Intrinsic validity of the will)

NOTES:

RATIONALE: Probate proceeding are not established in the interest of the surviving heirs, but primarily for the protection of the expressed wishes of the testator. It is true that the rights of the parties should not be left hanging in uncertainty for periods in excess of the maximum period of ten years allowed by law, but the remedy is the other interested person either: 1. To petition for the production of the will and for its probate; 2. To inflict upon the guilty party the penalties prescribed by Rule 75 of the Rules of Court; or 3. To declare the unworthiness of the heir under Art. 1032 of the Civil Code for the concealing or suppressing the will. (Guevarra v. Guevarra, GR No. 5405, January 31, 1956).

ORDINARY ACTION DISTINGUISHED

AND

ORDINARY ACTION Seeks to address a wrong or the violation of a right Adversarial in nature The party who establishes a preponderance of evidence in his favor is considered the victor

SPECIAL

PROCEEDING

SPECIAL PROCEEDING Seeks to establish a right, status or fact Non-adversarial There is actually no true winner between the parties

EFFECT OF ALLOWANCE OF WILL A judgment or decree of a court with jurisdiction to probate a will is: 1. Conclusive as to the validity of the will 2. Not subject to collateral attack but stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal to the higher court 3. Conclusive to the whole world (in rem proceeding)

INSTANCES WHEN ALLOWANCE MAY BE SET ASIDE GENERAL RULE: Since a proceeding for the probate of a will is essentially one in rem a judgment allowing a will shall be conclusive as to its due execution.

The statute of limitations is not applicable to probate of wills.

EXCEPTIONS:

(Imprescriptibility of Probate)

1. By means of an appeal 2. By means of a petition for relief from judgment by reason of fraud, accident, mistake, or excusable negligence Page | 80

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

3. By means of a petition to set aside the judgment by reason of lack of jurisdiction or lack of procedural due process 4. By means of an action to annul judgment by reason of extrinsic or collateral fraud (Jurado, 144)

GROUNDS FOR DISALLOWANCE OF A WILL (Art. 839) (FIFU-SM)

1. FORMALITIES required by law have not been complied with; 2. Testator was INSANE, or otherwise incapable of making a will, at the time of its execution; 3. Will was executed through FORCE or under duress, or the influence of fear, or threats; 4. Will was procured by UNDUE AND IMPROPER PRESSURE and influence, on the part of the beneficiary or of some other person; 5. SIGNATURE of the testator was procured by fraud; 6. Testator acted by MISTAKE or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

Note: List is EXCLUSIVE Violence – when in order to compel the testator to execute the will, serious or irresistible force is employed. Intimidation – when the testator is compelled by a reasonable and well founded fear of an imminent and grave evil upon his person or property, or upon the persons or property of his spouse, descendants or ascendants, to execute the will. (Art. 335, CC) Undue Influence – when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice; substituting the wishes of another for those of the testator.

RATIFICATION With respect to a will which is void because of non-compliance with the formalities prescribed by law, ratification is NOT possible. With respect to a will which was executed through violence, intimidation, undue influence, fraud or mistake, ratification is possible. (Ibid, p. 158)

 

Note: Fair arguments, persuasion, appeal to emotions, and entreaties which, without fraud or deceit or actual coercion, compulsion or restraint DO NOT constitute undue influence sufficient to invalidate a will (Barreto v. Reyes, GR No. L-5830, January 31, 1956). 



The burden is on the person challenging the will to show that such influence was exerted at the time of its execution. To make a case of UNDUE INFLUENCE, the free agency of the testator must be shown to have been destroyed; but to establish a ground of contest based on FRAUD, free agency of the testator need not be

REVOCATION AND DISALLOWANCE DISTINGUISHED REVOCATION Voluntary act of the testator With or without cause May be partial or total

DISALLOWANCE Given by judicial decree Must always be for a legal cause Always total except when the ground of fraud or influence for example affects only certain portions of the will

CASES: RODRIGUEZ V. RODRIGUEZ, 642 SCRA 642 (2007) FACTS: Juanito Rodriguez was the owner of a 5-door apartment. In

Fraud – if by misrepresentation and deception the testator is led into making a will different from that he would have made but for the misrepresentation and deception.

1983, he executed a last will and testament, giving petitioner Cresenciana (his live-in partner) apartments D&E, apartment A to Benjamin (deceased husband of Evangeline), apartment B to Buenaventura and apartment C to Belen. In 1984, Juanito executed a Deed of Absolute Sale over the property to petitioner Cresenciana.

Mistake – pertains to “Mistake of Execution” which may either be: 1. A mistake as to identity or character of the instrument which he signed, or 2. A mistake as to the contents of the will itself. (Jurado, p.158)

Subsequently, Cresenciana filed an action for unlawful detainer against respondents alleging that she as the registered owner of the property (by Page | 81

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

virtue of a sale executed by Juanito in her favor) and that she allowed respondents to occupy the property out of her kindness and generosity but the latter leased the units without her consent. On the other hand, respondents claimed ownership over the subject property by succession alleging that a. Petitioner exerted undue influence over their father to agree to the sale of the property for only P20,000 after knowing that only 2 units were given to her in the will b. Petitioner had no cause of action since she was a party to the Partition agreement and recognized respondents as co-owners and partitioned the property according to the provisions of the will

ISSUE: Who has a better right to the subject property HELD: Petitioner has a better right to the property by virtue of the sale executed by the testator during his lifetime in favor of petitioner Cresenciana. Respondents failed to prove their right of possession, as the Huling Habili at Testamento and the Partition Agreement have no legal effect since the will has not been probated. Before any will can have force or validity it must be probated. This cannot be dispensed with and is a matter of public policy. Art 838 NCC mandates that “no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.” As the will was not probated, the Partition Agreement which was executed pursuant thereto cannot be given effect. Thus, the fact that petitioner was a party to said agreement becomes immaterial in the determination of the issue of possession. Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez remained the owner thereof since ownership would only pass to his heirs at the time of his death. Thus, as owner of the property, he had the absolute right to dispose of it during his lifetime.

Rodriguez emphasizes the need for probate of a will, as mandated in Art 838 NCC. Without probate, the will is ineffective and does not produce legal effect. In this case, the Supreme Court recognized the testator’s right, during his lifetime, to sell the property which he had previously adjudicated to his heirs in his will. In this regard, the provision of Art 957 NCCis worth

considering: “The legacy or devise shall be without effect: x x x (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. x x x. Art 957 is one of the 7 provisions of the Civil Code and the Family Code which pertains to implied revocation of a testamentary disposition. LASAM V. UMENGAN, 510 SCRA 496 (2006) FACTS: Spouses Pedro Cuntapay conveyed a parcel of land to their 2 children: Irene and Isabel. It was agreed that eastern half portion shall belong to theirs of Isabel while the west portion shall belong to heirs of Irene. nd

The heirs of Rosendo Lasam (son of Isabel by her 2 husband) filed a complaint for unlawful detainer against Vicenta Umengant (daughter of st Abdon who is the son of Isabel by her 1 husband). Lasam alleged that they were the owners of the property, having inherited it from their father Rosendo, who was the sole heir of deceased Pedro through Isabel. On the other hand, Umengan countered that when Isabel died, the property st nd was inherited by her six children from her 1 and 2 marriages. Each of the 6 children had a pro-indiviso share in the subject lot.

ISSUE: WON as between the respective claims of petitioners Lasam and respondent Umengan, the latter has a better right to possess the subject lot

HELD: Yes. Respondent has shown a better right of possession over the subject lot as evidenced by the deed of conveyance executed in her favor by the children of Isabel Cuntapay by her first marriage. Contrary to the ruling of the MTCC and RTC the purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners’ right to possess the subject lot because, without having been probated, the said last will and testament could not be the source of any right pursuant to Art 838 NCC. In Caniza v. Court of Appeals, the Court ruled that : “(a) will is essentially ambulatory; at any time prior to the testator’s death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit; “No will Page | 82

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.” According to Tolentino, an imminent authority on civil law, also explained that “before any will can have force or validity, it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as require by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will.” Moreover, the presentation of the will for probate is mandatory and is a matter of public policy. Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which to date, has not been probated. Stated in another manner, Isabel Cuntapay’s last will and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder.

Lasam emphasizes the necessity of probate. Without which, a purported will cannot be the source of any right and could not be relied upon to establish the right to possession. Lasam further confirms the ambulatory nature of a will, such that at any time prior to his death, the testator may change or revoke it. GALLANOSA V. ARCANGEL, 83 SCRA 676 (1978) FACTS: Florentino Histosis executed a will covering 61 parcels of land in Sorsogon. His second wife Dollentas was also twice married and had a son, Pedro, by her first marriage. Florentino was childless and a widower whose surviving relative was Leon (brother). Florentino died in 1939. His will provided ½ share be bequeathed to Pedro and 3 other parcels be given to Fortajada, a minor and his protégé. When the will was submitted for probate, Leon opposed it. A project of partition was submitted by said testamentary heirs and was approved by the court in 1943. In 1952, Leon filed a case against Pedro for the

recovery of the 61 parcels of land, alleging that they and their predecessors had been in open and continuous possession of the property in the concept of an owner. Pedro moved to dismiss the action and the trial court dismissed the case on the ground of res judicata since Leon never appealed the probate. In 1967, Leon filed another case against Pedro for the “annulment” of Florentino’s will alleging that it was procured through fraud and deceit.

ISSUE: WON Leon has a cause of action in the instant case HELD: No. What the plaintiff seeks is the annulment of a last will and testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the testamentary heirs by the same court in 1943 by virtue of the probated will, which action is a resuscitation of the complaint of the same parties that the same court dismissed in 1952. It is evident from the allegations of the complaint and from the defendants’ motion to dismiss that plaintiffs’ 1967 action is barred by res judicata. The defense of res judicata, as a ground for the dismissal of plaintiffs’ 1967 complaint, is a two- pronged defense because (1) the 1939 and 1943 decrees of probate and distribution and (2) the 1952 order of dismissal of the lower court constitute bars by former judgment. The 1939 decree of probate is conclusive as to the due execution or formal alidity of the will. After the finality of the allowance of a will, the issue as to the voluntariness its execution cannot be raised anymore. In Austria v. Ventenilla, a petition for annulment of a will was not entertained after the decree of probate had become final. It is fundamental concept in the organization of every jural system, a principle of public policy that the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. “the very object of which the courts were constituted was to put an end to controversies.

Art 838 NCC requires probate as a condition precedent for the effectivity of a will. Probate is limited to a determination of two issues: one, the Page | 83

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

testamentary capacity of the testator, and two, the due execution of the will. Testamentary capacity has two components: first, the soundness of mind of the testator, and second, the requisite age. Due execution refers to the compliance with the formal requisites prescribed by law. If the proponents of the will are able to prove testamentary capacity and due execution, the probate judge will forthwith issue and order admitting the will to probate. Once the probate order becomes final, the testamentary capacity of the testator and the due execution of the will becomes incontestable. Res judicata will apply to any attempt to reopen and or revisit the issues of testamentary capacity and due execution. Gallanosa illustrates the inevitable result of an attempt to reopen probate proceedings long after the probate order has become final. It is important to note the present procedural laws do not permit nor sanction the institution of an action for the “annulment” of a will. MANINANG V. CA, 114 SCRA 478 (1982) FACTS: On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She left a holographic will, bequeathing her personal properties to Dr. Soledad Maninang. Maninang filed a petition for probate in June 1977. Respondent Bernardo Aseneta, as the adopted son, claimed to be the sole heir of the decedent instituted intestate proceedings in CFI Quezon City. Bernardo then filed a motion to dismiss the testate case since the holographic will was null and void since he was the only compulsory heir, was preterited and therefore, intestacy should ensue. Soledad averred that it is still the rule in the probate of the will that the Court’s area of inquiry is limited to an examination of and resolution on the extrinsic validity of the will, and that Bernardo was effectively disinherited by Clemencia.

ISSUES: 1. Did the Court a quo acted in excess of its jurisdiction when it dismissed the testate case? 2. Whether under the terms of the decedent’s will, private respondent had been preterited or disinherited and if the latter, whether it is a valid disinheritance?

HELD: Yes, the court acted in excess of its jurisdiction. 1. Generally, the probate of a will is mandatory. The law enjoins the probate of the will and public policy requires it, because unless the Will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by Will may be rendered nugatory. 2. Normally, the probate of the will does not look into its intrinsic validity. The only purpose of probate proceedings is to determine if the will has been executed in accordance with the requirements of the law. 3. By virtue of the dismissal of the Testate case, the determination of the controversial issue has not been thoroughly been considered. As gathered from the decision of the trial court, its conclusion was that Bernardo has been preterited. The SC opined however, that from the face of the Will, that conclusion is not indubitable. 4. As held in the case of vda. dePrecilla vs. Narciso: “It is as important a matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise the very institution of testamentary succession will be shaken to its foundation.” 5. Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari. And even assuming the existence of the remedy of appeal, we harken to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. PRETERITION Preterition consists in the omission in the testator’s will of the forced heirs or anyone of them, either because they are not mentioned therein or though mentioned, they are neither instituted as heirs nor are expressly disinherited

DISINHERITANCE Disinheritance is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

Presumed involuntary Effects: It shall annul the institution of heir. This is annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies (Art 854)

Always voluntary

Effects: The nullity is limited to that portion of the estate which the disinherited heirs have been illegally deprived (Art 918)

While as a rule the area of inquiry of a probate court is restricted to the twin issues of testamentary capacity and due execution, practical considerations may necessitate an inquiry into substantive validity. This is particularly true if none of the testamentary dispositions could be given effect and therefore, an inquiry into extrinsic validity would be a waste of time. Nuguid v Nuguid is squarely in point. However, while much reliance on Nuguid was made by the oppositor in Maninang, the same was not favored by the court since the nullity of the testamentary dispositions in the questioned will did not appear to be indubitable. It seems that the court sought a determination as to whether or not the oppositor was preterited or disinherited under the terms of the questioned will. However, one finer point of law must be considered. While preterition involves the omission of a compulsory heir in the direct line, the supposedly preterited heir in the foregoing case is an adopted child. It would therefore seem that the more crucial issue is the determination as to whether or not an adopted child should be considered as a compulsory heir in the direct line of the testator. The issue is significant because an adopted child may not have blood ties with the testator, and therefore whether or not such adopted child is a relative in the direct line is disputable. SPOUSES ALVARO PASTOR JR. V. CA, 122 SCRA 885 (1983) FACTS: Alvaro Pastor Sr., died on June 1966 survived by his wife Sofia, their two legitimate children (Pastor Jr. and Sofia), and an illegitimate child, Quemada. Quemada filed a petition filed a petition for

the probate of the alleged will of Pastor Sr.. the will contained only one testamentary disposition: a legacy in favor Quemada consisting of 30% of Pastor Sr.’s 42% share in the operation of Atlas of some mining claims. Quemada was appointed special administrator. As the special administrator, Quemada filed an action for reconveyance against Pastor Jr. and his wife regarding some properties allegedly forming part of Pastor Sr.’s estate, including the property subject of legacy. Spouses Pastor Jr. filed their opposition to the petition for probate and the order appointing Quemada as special administrator. However, the probate court admitted the will to probate in 1972. In 1980, the probate court set a hearing on the intrinsic validity of the will and required the parties to submit their position papers as to how the inheritance could divided. On August 20, 1980, while the action for reconveyance was still pending, the probate court issued an order of execution and garnishment, resolving the issue of ownership of the royalties payable by Atlas and granting the legacy to Quemada. On November 11, 1980, the probate court issued an order declaring that the probate order of 1972 indeed resolved the issue of ownership and the intrinsic validity of the will reiterating its previous orders

ISSUE: WON the probate order resolved with finality the questions of ownership and intrinsic validity as stated in the November 11, 1980 order

HELD: No. In a special proceeding for the probate of a will, the issue is restricted to the extrinsic validity of the will, i.e. whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. It was therefore erroneous for the assailed orders to conclude that the probate order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Page | 85

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

probate order directed the special administrator to pay the legacy in dispute. Pastor Sr., was survived by his wife and their two children as well as by an illegitimate child. There is therefore a need to liquidate the conjugal property and set apart the share of Pastor Sr.’s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of Pastor Sr. when the disputed probate order of 1972 was issued, there was no liquidation of the conjugal properties of the spouses. So as of that date, there was no prior definitive determination of the assets of the decedent’s estate. There was no determination, much less payment of the debts of the decedent. Furthermore, there was neither assessment nor payment of the estate tax to the government. The net estate not having been determined, the legitime of the forced heirs in concrete figures could not be determined. Thus, it was not possible to determine whether the legacy to Quemada would produce an impairment of the legitime of the compulsory heirs. Without a final, authorative adjudication of the issue as to what properties compose the estate of Pastor Sr. in the face of conflicting claims involving properties not in the name of the testator, and in the absence of a resolution on the intrinsic validity of the will, there was no basis for the probate court to hold that the 1972 probate order that Quemada is entitled to payment of the questioned legacy. Therefore, the execution and the subsequent order for the payment of Quemada’s legacy, in the alleged implementation of the probate order of 1972 must fall for lack of basis.

Pastor is a detailed account of the jurisdiction of a probate court, particularly in the matter of liquidating the estate of a deceased person. The appropriate procedure must be noted in the light of the unusual haste in which the probate judge sought to deliver a legacy to the designated legatee. More importantly, the jurisdiction of a probate court to determine the issue of ownership must be noted. QUASHA ANCHETA PENA AND NOLASCO LAW OFFICE V. LCN CONSTRUCTION CORP, 563 SCRA 426 (2008) FACTS: There is a pending claim by LCN against the estate of the late Raymond Triviere and the amount thereof exceeds the value of entire estate. The claim of LCN against the estate amounted to P6,016,570.65,

already in excess of the P4,738,558.63 reported total value of the estate. Petitioners invoked Dael vs. Intermediate Appellate Court, where Court sustained an Order granting partial distribution of an estate

ISSUE: WON partial distribution is permitted although there is pending claim against the estate

HELD: Yes. Further to the ruling of the Supreme Court in Pastor, J. vs. Court of Appeals, this case explicitly permits the partial distribution of the estate of a deceased person prior to the payment of the debts, under specific conditions. Section 2, Rule 109 of the Revised Rules of Court expressly recognizes advance distribution of the estate, thus: “ Section 2., Advance distribution in special proceedings. – Notwithstanding a pending controversy or appeal in proceedings to settle estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.” The second paragraph of Section 1 of Rule 90 of the Revised rules of Court allows the distribution of the estate prior to the payment of the obligations mentioned therein, provided that “the distributes, or any of them, gives a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.” In sum, although it is within the discretion of the RTC whether or not to permit the advance distribution of the estate, its exercise of such discretion should be qualified by the following: (1) only part of the estate that is not affected by any pending controversy or appeal may be subject of advance distribution (Section 2, Rule 90); and (2) the distributes must post a bond, fixed by the court, conditions for the payment of outstanding obligations of the estate (second paragraph of Section 1, Rule 90). There is no showing that the RTC in awarding to the petitioner children and widow their shares in the estate prior to the settlement of all its obligations, complied with these two requirements or, at the very least, took the same into consideration. Its Order of 12 June 2003 is completely silent on these matters. It justified its Page | 86

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grant of the award in a single sentence which stated that petitioner children and widow had not yet received their respective shares from the estate after all these years. Taking into account that the claim of LCN against the estate of the late Raymond Triviere allegedly amounted to P6,016,570.65, already in excess of the P4,738,558.63 reported total value of the estate, the RTC should have bee more prudent in approving the advance distribution of the same. In Dael, the Court actually cautioned that partial distribution of the decedent’s estate pending final termination of the testate or intestate proceeding should as much as possible be discouraged by the courts, and, except in extreme cases, such form of advances of inheritance should not be countenanced. The reason for this rule is that courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected and all the rightful heirs be assured of their shares in the inheritance.

Further to the ruling of the Supreme Court in Pastor, J. v Court of Appeals, this case explicitly permits the partial distribution of the estate of a deceased person prior to the payment of the debts, under specific conditions. JIMENEZ V. INTERMEDIATE APPELLATE COURT, 184 SCRA 367 (1990) FACTS: The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced 4 children, namely Alberto, Leonardo, Sr. Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired 5 parcels of land in Pangasinan. After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the 7 petitioners. Lino died on Aug. 11, 1951 while Genoveva died on Nov. 21, 1978. Virginia Jimenez (Virginia) filed a petition praying to be appointed as the administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the spouses, which included herein co-petitioners and the four children of the union of Lino and Consolacion.

and those of Alberto, Alejandra and Angeles from the petition, as they are children of the union of Lino and Consolacion and not of Lino and Genoveva and because they have already received heir inheritance consisting of 5 parcel of lands in Pangasinan. . Virginia filed an inventory of the estate of the spouses Lino and Genoveva including 5 parcels of land in Pangasinan. Leonardo Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino. The probate court ordered the exclusion of the 5 parcels of land from the inventory. On appeal the CA dismissed the petition for the annulment of order of the probate court dated in September 29, 1981, because Genoveva had admitted that the subject parcel of land had been adjudicated to the children of the previous nuptial; and the subject properties could not have been acquired during the marriage of Lino to Genoveva because they were already titled in the name of Lino even prior to Lino and Genoveva’s marriage.

ISSUE: WON in a settlement proceeding, the lower court has jurisdiction to settle questions of ownership and whether res judicata exist to bar petitioner’s present action for the recovery of possession and ownership of the 5 parcels of land

HELD: No. Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate court's findings are not conclusive, being prima facie, a separate proceeding is necessary to establish the ownership of the five parcels of land. The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. It has been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.

Private respondent Leonardo Jimenez, Jr. (Leonardo Jr.) son of Leonardo Jimenez Sr., file a motion for the exclusion of his father’s name Page | 87

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

Res judicata does not exist because of the difference in the causes of actions. Specifically in Sp. No. 5346, is an action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy, while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. While admittedly, the CFI of Pangasinan had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand, was lodged before the Regional Trial Court of Pangasinan, in the exercise of the court's general jurisdiction, in the determination of the issue of ownership of the disputed properties. Since the determination of the question of title to the subject properties in Sp. No. 5346 was merely provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111.

The probate court, as a rule, cannot pass with finality on issues affecting ownership of property. Jimenez holds that this limitation applies also to proceedings in intestacy where an intestate court can only pass upon on issues of title on a provisional basis only. And despite a ruling of the intestate court on the matter, the parties are not barred by res judicata from instituting a separate and subsequent action to thresh out the matter. OZAETA V. CUARTERO, 99 PHIL 1041 (1956) FACTS: Carlos Palanca was married to Cesaria Gano with whom he begot 3 children. After Cesaria died, Palanca cohabited with Rosa Gonzales with whom he had 8 children. Palanca also sustained relations with Maria Cuartero with whom he had 6 children. Subsequently, Palanca married Rosa and thereafter made his will. At the time the will was made, Palanca was living with petitioner Ramon Ozaeta, while his house was being repaired. The will named President Manuel Roxas as executor and Ozaeta as executor in default of Roxas. When Palanca died, the will was given to Ozaeta since at the time Roxas was already dead. Ozaeta then filed a petition for probate, joined by Rosa and her children. Cuartero opposed the probate on the ground that it was procured by fraud, undue pressure and influence on the part of the beneficiaries.

ISSUE: WON the will should be disallowed on the ground of improper influence and pressue

HELD: No. The oppositors claim that Palanca was “a very old man suffering from several ailments besides cataract in both eyes” and that fear was instilled in his mind by Rosa Gonzales and also that all his actions were controlled that he just signed whatever papers he was asked to sign. But this seems to be a far-fetched deduction since Palanca was at the time of the execution of the will, although old and sickly, was living with Rosa in the house of Ozaeta. Angel Palanca, even stated that his father was still signing checks until 1945 while another witness testified that Palanca can still read the newspaper in 1949. Even the doctor testified that his eyes were impaired only as to his “distance vision” but not the “near vision.” There was no showing before, during and after the execution of the will that he was not a master of his will but had to take orders from somebody. The will was signed by him in the office of a distinguished lawyer, who died a respected member of this Court. It is obvious that the claim that the will was obtained thru undue influence and improper pressure has no substantial factual basis but is more a matter of conjecture engendered by suspicion which the weight of authority regards as insufficient to sustain a verdict defeating a will on that ground. "It is not enough that there was an opportunity to exercise undue influence or a possibility that it might have been exercised. There must be substantial evidence that it was actually exercised." Appellants' theory is, furthermore, disproved by decedent's failure to revoke or otherwise alter the questioned will as soon as he stepped out of petitioner's house and moved to his own where he led a free man's life up to five years after the execution of the will in question. This behavior of the decedent constitutes a silent ratification of the contents of the impugned will and refutes the claim of undue influence and improper pressure, even supposing that these circumstances were duly proved.

A will executed through undue and improper pressure of influence may be denied probate by reason of the involuntariness of its execution by the testator. However, an allegation of undue and improper pressure and influence must be substantiated by competent evidence to prove that it was indeed exerted. Mere inferences resulting from circumstances surrounding the execution of the will do not suffice to justify the denial of probate, particularly where the execution of the will was attended by respectable members of the bar. In addition, even if such undue pressure Page | 88

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

and influence were to be proved, the testator would be deemed to have ratified the contents of the will if, having been given ample opportunity to revoke the same, he did nothing until the time of this death. This is because while undue pressure and influence vitiates consent, such vitiation ceases when the undue pressure and influence ceased. Thus, if the testator did not exercise his option to revoke or alter the provisions of the will which are not consistent with his wishes, a presumption arises that he has silently ratified the same. COSO V. FERNANDEZ DEZA, 42 PHIL 596 (1921) FACTS: The testator is a married man and a resident of the Philippines. The testator had an illicit affair with Rosario Lopez from 1898 to his death in 1919. They begot a son. The testator (allegedly) executed a will which was presented for probate after his death. The will gives the free portion (tercio de libre disposicion) to the illegitimate child of the testator with Rosario, and payment or reimbursement for the expenses incurred by Rosario in taking care of the testator during the years 1909-1916 when he was suffering from severe illness. CFI denied the probate of the testator’s will on the ground of undue influence alleged to have been exerted over the time of the testator by Rosario. There is no doubt that Rosario exercised some influence over the testator.

ISSUE: WON the influence exercised was of such a character to vitiate the will

the making of testamentary dispositions which the testator would not otherwise have made. And while the same amount of influence may become undue when exercise by one occupying an improper and adulterous relation to testator, the mere fact that some influence is exercised by a person sustaining that relation does not invalidate a will, unless it is further shown that the influence destroys the testator’s free agency. The burden is upon the parties challenging the will to show that undue influence existed at the time of its execution. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to destroy his free agency and make him express the will of another rather than his own. He was an intelligent man, a lawyer by profession, appears to have known his own mind, and may well have been actuated only by a legitimate sense of duty in making provisions for the welfare of his illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.

HELD: No. Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to have that effect, the influence must be undue. The rule as to what constitutes undue influence has been variously stated, but the substance of the different statements is that, to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own. Such influence must be actually exerted on the mind of the testator in regard to the execution of the will in question, either at the time of the execution of the will, or so near thereto as to be still operative, with the object of procuring a will in favor of particular parties, and it must result in

Coso discusses the nature of "undue influence" which vitiates the will of the testator. Further to Ozaeta, Coso holds that mere influence is not sufficient to invalidate a will. Influence must overpower and subjugate the mind of the testator so as to destroy his free agency and make him express the will of another, rather than his own. However, the interesting twist of this old case is the fact that the beneficiary accused of exercising undue influence on the testator is a mistress of the testator. Nevertheless, the Court allowed the will, including the disposition in favor of the mistress. In the case of Nepomuceno v Court of Appeals, supra, the Court invalidated a testamentary disposition in favor of a mistress. A distinction between these two cases is therefore necessary. Page | 89

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

PASCUAL V. DELA CRUZ, 28 SCRA 421 (1969) FACTS: On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent. Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud.

ISSUE: WON under the circumstances, undue and improper pressure and influence as well as fraud are grounds to disallow a will.

HELD: Petitioner, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her property in her will without any objection from Catalina and Valentina Cruz. The basic principles of undue pressure and influence as laid down by the jurisprudence on this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Coso v Fernandez Deza, 42 Phil 596. The circumstances marshaled by the contestants certainly fail to establish actual undue influence and improper pressure exercised on the testatrix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it," which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testatrix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted therein in bold letters to mislead the deceased, even

if true, demonstrates that proponent's influence was not such as to overpower and destroy the free will of the testatrix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred. Nor is the fact that it was proponent, and not the testatrix who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumatism of the testatrix made it difficult for her to look for all the witnesses. That she did not resort to relative or friend is, likewise, explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recrimination that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made sole heir of her sister, Florentina Cruz, in derogation of her own rights, there is nothing abnormal in her instituting proponent also as her own beneficiary. The probate of the will was allowed.

Undue and improper pressure and influence as well as fraud are grounds to disallow a will. These twin grounds were invoked in this case. While the Court considered only the issue of improper influence and pressure, and summarized the rulings thereon, it is equally important to consider the effect of alleging undue influence and pressure simultaneously with fraud. ORTEGA V. VALMONTE, 478 SCRA 247 (2005) FACTS: Placido worked in the US until his retirement. In 1980, he returned to the Philippines and lived in a house which he co-owned with his sister Ciriaca Valmonte. toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines and lived in the house located at San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte. Two years after his arrival and at the age of 80, he wed Josefina who was then 28 years old. Two years after their marriage, Placido died. Page | 90

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Placido executed a notarial will. The will contained provisions bequeathing Placido’s properties to his Wife Josefina and appointing her as sole executrix of his last will and testament, and that said executrix be exempt from filing a bond. The allowance to probate of this will was opposed by Leticia and she also opposed the appointment as Executrix of Josefina, alleging her want of understanding and integrity. According to Josefina, she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attaché case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind.

ISSUE: WON the signature of Placido was procured through fraud HELD: No. The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will. Verily, Article 839 of the Civil Code states the instances when a will may be disallowed. Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Fraud “is a trick, secret device, false statement, or pretence, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executed, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which,

but for the fraud, he would not have made. the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary, and disregarded petitioner and her family, who were the ones who had taken cared of the testator in his twilight years. The conflict between the dates appearing on the will does not invalidate the document, “because the law does not even require that a (notarial) will x x x be executed and acknowledged on the same occasion.” Petitioner failed to substantiate her claim of a “grand conspiracy” in the commission of fraud, There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution. Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives. According to Art 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of; (2) the proper objects of the testator’s bounty; and (3) the character of the testamentary act. Applying this test to the present case, the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

Ortega discusses two issues: (i) how to prove the fact of fraud in the making of the will; and (ii) what constitutes a sound and disposing mind.

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

NEPOMUCENO V. CA, 139 SCRA 206 (1085) FACTS: In the last will and testament of Martin Jugo, he named and appointed the petitioner Sofia Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The petitioner filed a petition for the probate of the Will, but the legal wife and children filed an opposition. The lower court denied the probate of the will on the ground that the testator admitted to cohabiting with Nepomuceno. The will’s admission to probate was deemed an idle exercise since based on the face of the will, the invalidity of the intrinsic provisions is evident. The appellate court, however, declared the will to be valid except that the devise in favor of the petitioner is null and void. Petitioner filed a motion for reconsideration, but such was denied.

ISSUES: 1. WON CA acted in excess of its jurisdiction when after declaring the will of the testator validly drawn, it went on to pass upon the intrinsic validity of the testamentary disposition in favor of petitioner 2. WON the disposition in favor of the petitioner valid

HELD: FIRST ISSUE: The court acted within its jurisdiction The general rule is that in probate proceedings, the court’s area of inquiry is limited to an examination and resolution of the extrinsic validity of the will. The rule, however, is not inflexible and absolute. Given the exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. The trial court acted correctly in passing upon the will’s intrinsic validity even before its formal validity has been established. The probate of a will might become an idle ceremony if on its face, it appears to be

intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. SECOND ISSUE: Validity of the disposition to the petitioner: Article 739 of the Civil Code provides: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides: The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions. The records of the case do not sustain a finding of innocence or good faith on the part of Nepomuceno: a. The last will and testament itself expressly admits its indubitably on its face the meretricious relationship between the testator and petitioner, the devisee b. Petitioner herself, initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves duelled on the intrinsic validity of the legacy given in the will to petitioner by the testator at the start of the proceedings. Whether or not petitioner knew that the testator, Jugo, the man she had lived with as a husband, was already married was important . When the court ruled that Jugo and the petitioner were guilty of adultery and concubinage, it was a finding that the petitioner was not the innocent woman she pretended to be.

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The prohibition in Art. 739 is against the making a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot given even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

While the general rule is that the probate court's area of inquiry is limited to the extrinsic validity of the will, practical considerations may compel the probate court to pass upon matters of intrinsic validity. In particular, where a testamentary provision is void on its face, a probate court, in accordance with the ruling in Nuguid v Nuguid, pass upon such provision for the purpose of declaring its nullity. ROBERTS V. LEONIDAS, 129 SCRA 33 (1984) FACTS: Edward Grimm was an American residing in Manila until his nd

death in 1977. He was survived by his 2 wife (Maxine), their two st children (Pete and Linda), and by his two children from a 1 marriage (Juanita and Ethel) which ended in divorce. Grimm executed two wills in San Francisco, CA in January 1959. One will disposed of his Philippine nd estate described as conjugal property of himself and his 2 wife. The second will disposed of his estate outside the Philippines. The two wills and a codicil were presented for probate in Utah by Maxine in March 1978. Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January 1978. Subsequently, the Utah court admitted the two wills and a codicil for probate in April 1978, and was issued upon consideration of the stipulation between the lawyers fro Maxine and Ethel. In April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in Manila, entered into an agreement in Utah regarding the estate. The agreement provided that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm’s Philippine estate and that Maxine’s ½ conjugal share in the estate should be reserved for her which would not be less than $1.5 million plus the homes in Utah and Sta. Mesa.

Manila Intestate Proceedings: Maxine filed an opposition and motion to dismiss the intestate proceeding in Manila on the ground of pendency of the Utah probate proceedings. However, pursuant to the compromise agreement, Maxine withdrew the opposition and motion to dismiss. The court ignored the will found in the record. The estate was partitioned. In 1980, Maxine filed a petition praying for the probate of the two wills (which was already probated in Utah), that the partition approved by the intestate court be set aside, and that Maxine be named executrix, and Ethel be ordered to account for the properties received by them and return the same to Maxine. Maxine alleged that they were defrauded due to the machinations of the Ethel, that the compromise agreement was illegal and the intestate proceeding was void because Grimm died testate so the partition was contrary to the decedent’s wills. The trial court denied the petition for lack of merit.

ISSUE: WON the respondent judge committed grave abuse of discretion in denying Ethel’s motion to dismiss

HELD: No. A testate proceeding is proper in this case because Grimm died with two wills and “no will shall pass either real or personal property unless it is proved and allowed.” The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled through an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

Probate of a will is mandatory in order that the said will may pass property. In this case, the Supreme Court ruled that "it is anomalous that the estate of a person who died testate should be settled in an intestate proceeding." Accordingly, the Court ordered the consolidation of the testate and intestate proceedings, and for the judge hearing the testate case to continue hearing the consolidated cases. In de Borja v vda de Borja, infra, the Supreme Court allowed and in fact enforced the compromise agreement between a stepson and his stepmother, despite the fact that the tenor of the compromise agreement is not consistent Page | 93

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

with the tenor of the will of the testator. It is important to distinguish the variance between the ruling in de Borja and the ruling in Roberts. Based on the dictum of the Supreme Court in these two cases, is it lawful for the heirs to divide the estate in accordance with a freely negotiated compromise agreement and in the process disregard the terms of the will? Or will such a compromise agreement result in an "anomalous" situation deplored by the Supreme Court in Roberts? DOROTHEO V. CA, 320 SCRA 12 (1999) FACTS: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro’s death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter’s last will and testament. In 1981, the court issued an order admitting Alejandro’s will to probate. Private respondents did not appeal from said order. In 1983, they filed a “Motion to Declare The Will Intrinsically Void.” The trail court granted the motion. Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other.

ISSUE: WON the issuance of a probate order, a guaranty that the testamentary dispositions are valid and would thus be given effect

HELD: No. It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, particularly on the following aspects: a) whether the will submitted is indeed, the decedent’s last will and testament; b) compliance with the prescribed formalities for the execution of wills; c) the testamentary capacity of the testator; d) and the due execution of the last will and testament. Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will.

It can be clearly inferred from Art 960 NCC, on the law on successional rights that testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that transfer of the estate is usually onerous in nature and that no one is presumed to give – nemo praesumitur donare. No intestate distribution of the estate can be done unless the will had failed to pass both extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the test is to determine its intrinsic validity – that is, whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro’s disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his “only beloved wife,” is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse’s estate.

Dorotheo distinguishes between the extrinsic and intrinsic validity of a will. It holds that the admission of a will to probate does not necessarily mean the provisions of the will can be given effect. The inquiry during probate of the will focuses only on formal or extrinsic validity. Even as a probate order is issued, it is not a guaranty that the testamentary dispositions are valid and would thus be given effect. In sum, extrinsic validity is one thing; intrinsic validity is another.

G. INSTITUTION OF HEIRS Art840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. Page | 94

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

INSITITUTION – An act by virtue of which a testator designates in his will the person or person who are to succeed him in his property and transmissible rights and obligations (Art. 840) The institution is valid if it is possible to ascertain with finality the identity of the instituted heir by intrinsic or extrinsic evidence.

INSTITUTION OF AN HEIR – The process whereby the testator designates another person/s who are to receive a fractional part of his estate. If a person is instituted to a fractional portion, he is an heir; if he is supposed to receive a specific property comprising the estate, he is called a legatee or devisee. It is not necessary that a will must contain an institution of heirs, since the estate can be distributed through legacies or devises.

PREFERENTIAL RIGHT OF DEVISEE/LEGATEE – When the testator specifically named the devisee/legatee to receive a specific property, the legatee/devisee enjoys a preferential right over the heirs such that the devises/legacies cannot be sold to pay for the debts of the estate. It is specifically held in abeyance for the devisee/legatee. A testator can distribute his estate by identifying the specific properties that will go to specific persons (e.g., Dizon-Rivera v. Dizon)

ORDER OF PREFERENCE: 1. 2. 3. 4. 5.

Institution of heir (Art 840) Substitution of heir (Art 857) Right of representation (Art 970) Right of accretion (Art1015) Intestacy (Art 960)

REQUISITES OF VALID INSTITUTION 1. The will must be EXTRINSICALLY valid – The testator must possess testamentary capacity, the formalities required by law must be observed, there must be no vice of consent in the making of the will, and the will must have been duly probated 2. The will must be INTRINSICALLY valid – There is no violation of any provision of substantive law, i.e. no impairment of

legitimes, heirs must be qualified to inherit from the testator and there should be no preterition 3. The institution which refers to the naming of the person and the specification of share must be made PERSONALLY by the testator 4. The instituted heir must be IDENTIFIABLE

Art841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. Even if the heir instituted becomes incapacitated or renounced his share in the estate, the will remains valid. The validity of the will does not depend on the heir but depends on the compliance with the formalities of the law. In case the heir does not accept the inheritance or is incapacitated to succeed, the share of such heir shall be disposed of under certain rules, not necessarily under the rules of intestacy.

EFFECT OF LACK OF INSTITUTION (Art 841)

A will otherwise defective is valid, even if: 1. There is no institution of heir 2. The instituted heir is given only a portion of the estate 3. The heir instituted should repudiate or be incapacitated to inherit The testamentary dispositions made in accordance with the law shall be complied with and the remainder of the estate shall pass to the legal heirs.

Art842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

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

One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.

Art844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted.

Art 842 states the principle of freedom of disposition by will. The extent of this freedom depends upon the existence, kind, and number of compulsory heirs. One who has no compulsory heirs has practically full powers of disposition; but one with compulsory heirs cannot disregard the rights of the latter.

If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir.

Compulsory heirs – Those who succeed by force of law to a certain portion of the estate of the decedent, irrespective of the will of the testator, except in cases expressly provided by law. The portion which they succeed is known as the legitime; the remainder of the estate is called the free portion, and may be freely disposed of by the testator as he may desire to any person with capacity to succeed. The size of the free portion is inversely proportional to the number of legitimate children and directly proportional to the number of illegitimate children (Mison, p. 172).

FREEDOM OF DISPOSITION: 1. If the testator has NO compulsory heirs; his freedom of disposition is ABSOLUTE in character. The whole estate is disposable. 2. If the testator has compulsory heirs, his freedom of disposition shall extent only to the disposable free portion of his estate but not to the legal portion or legitime. (Jurado, p.162)

Art843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid.

Art845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. These provisions follow the principle that if the institution leaves doubt as to who is designated, the will of the testator must be complied with, but if the doubt as to who is instituted cannot be resolved, then the institution is void.

ERROR AND AMBIGUITY An error in the name or circumstances of the heir does not vitiate the institution if the person intended by the testator can be ascertained in “any other manner.” This phrase is broad is enough to cover all kinds of evidence. If the testator institutes “my nephew Jose Reyes” and he happens to have 2 nephews with the same name, the institution is VOID. But if the testator merely institutes “Jose Reyes” without mentioning any circumstances regarding him, the appearance of two persons having the same name does not invalidate the institution. If it can be proven that one Jose Reyes is a close friend of the testator while the other is not, then the former must be taken as the one instituted.

CERTAINTY OF IDENTITY The person instituted must be certain, i.e. his identity must be known. The heirs must be identified preferably by name and surname. If the name is not known, other circumstances may be used by the testator to allow for identification. Should the testator fail to provide the name of the heir, the institution shall be valid if the testator provided some other designation that will identify the heir. Page | 96

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

FORMS OF INSTITUTIONS (Art 843-845)

1. The testator shall designate the heir by his name and surname. This form is not mandatory. 2. The designation may be made in any other form, as long as there will be no doubt as to the identity of the heir/s instituted. 3. Disposition in favor of an unknown person shall be void, unless some event or circumstances his identity becomes certain 4. A disposition in favor of a definite class or group of persons shall be valid.

Art846. Heirs instituted without designation of shares shall inherit in equal parts. In the absence of any fractional designation, the heirs shall inherit EQUALLY based on the rationale that had the testator wanted an heir to inherit more than the other, the testator should have provided it in the will (if there are no compulsory heirs). If the shares of some heirs are designated while those of the others are not, those parts designated shall be given to their owners, and the balance shall be divided equally among those whose shares not are designated. But if the shares of those whose portions are designated should consume the entire estate, those whose shares are not designated will inherit nothing (Tolentino, p. 179).

TEST TO DETERMINE THE VALIDITY OF INSTITUTION The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir either by intrinsic or extrinsic evidence. (Ibid, p. 163)

PRESUMPTIONS 1. PRESUMPTION OF EQUALITY – When heirs were instituted without designation of shares they are deemed to inherit in equal parts. (Art 846) o This applies only when all of the heirs are of the same class or juridical condition. o Where there are NO compulsory heirs among the heirs instituted, it should be applied only to the disposable free portion.

2.

PRESUMPTION OF INDIVIDUALITY – When the testator institutes some heirs individually and others collectively, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (Art 847)

3.

PRESUMPTION OF SIMULTANEITY – When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. (Art 849)

Art847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. Those who are individually instituted and those collectively instituted are deemed individually instituted. E.g., An institution which states “I institute Toto and his 7 children” the estate shall be divided into 8 equal parts. Collective institution is however permissible but the institution must be specific, i.e. “I give ½ of my estate to Toto and ½ to the 7 children collectively.”

Art848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. When there is no discrimination, there is a clear indication, that as far as the testator is concerned, he has equal affection for his brother and sister, whether full or half-blood. Art 848 has a counterpart in intestacy (Art 1006 NCC). Under Art 1006, in intestate succession, if some of the sibling-heirs are of the full blood and some are of the halfblood, the latter shall only receive half of the share of the former.

INSTITUTION OF BROTHERS AND SISTERS Some of full blood and others of half blood Page | 97

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc 1. Testate Succession – The inheritance shall be distributed equally, unless a different intention appears (Art 848) 2. Intestate Succession – Brothers and sisters of the full blood shall be entitled to a share of double that of the brothers and sisters of the half blood (Art. 1006)

Art849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. If a person and his children are instituted, they inherit at the same time from the testator. For example, X provided in his will that Y and his children are the universal heirs of X’s estate. Y and his children will inherit simultaneously from X; it should not be interpreted as Y will inherit first from X and then the children will inherit from Y. Successive institution is governed by Art 863.

Art850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. FALSE CAUSE – A false cause is synonymous to a mistake, which vitiates consent. Such vice of consent therefore renders an ordinary contract voidable. However in the law on succession, there are no voidable dispositions in a will, they are either valid or invalid dispositions. The falsity of a cause does not affect the validity of the disposition because the fact that the testator gave something in his will, is indicative of his intent to give something to the person such that the false cause is not deemed as the consideration of that institution but merely a motive of the institution. In other words, the false cause is merely an incident to the bequest because the consideration remains to be liberality. However, if the disposition is extremely explicit in stating that the testator would not have instituted the heir were it not for the false cause, then the institution becomes invalid. This results to invalidity because the cause or consideration of the disposition is no longer liberality but the false cause.

TEST: Whether or not the testator would not have made the institution had he known the falsity of the cause.

REQUISITES FOR FALSE CAUSE 1. The cause for the institution of the heirs must be stated in the will 2. The cause must be shown to be false; and 3. It must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause

CAUSE CONTRARY TO LAW What is the effect of the statement of a cause contrary to law? Is the institution valid or void? The mere statement of a cause contrary to law will not invalidate the institution, so long as it does not appear in the will that such illegal cause is the only motivating factor for the institution. The principle underlying in the rule on the statement of a false cause should also apply in the case of an illegal cause. If the true cause is the generosity of the testator, the mere statement of an illegal cause should not impair the institution. But if it clearly appears from the will itself that the testator’s only reason for making the disposition is the illegal cause, then the disposition should be void.

CASE: AUSTRIA V. REYES, 31 SCRA 754 (1970) FACTS: Basilia Austria vda. de Cruz filed with the CFI of Rizal a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the petitioners, Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo and still others who, like petitioner are nephew and nieces of Basilia. The opposition was dismissed and the probate of the will allowed after due hearing. The bulk of the estate of Basilia, was destined under the will to pass on to respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz – Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children. Petitioner filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and Page | 98

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

that the five respondents, Perfecto Cruz, et.al, had not fact been adopted by the decedent in accordance with law. The court then allowed the said intervention by petitioners which the court delimited to the properties of the deceased which were not disposed of in the will and disregarded the matter of the genuineness of adoption.

that the false cause must be stated in the will, the opponents of the will are likewise mandated to prove by substantial evidence that the testator would not have made such a disposition had he known the true state of affairs. Therefore, inferences and conjectures are not sufficient to invalidate a provision which is challenged as one made on the basis of a false cause.

ISSUE: WON the institution of heirs would retain efficacy in the event

Please note that the false cause which led the testator to make a particular testamentary disposition is treated in the same way as a mistake, which in contract law, vitiates consent.

there exists proof that the adoption of the same heirs by the decedent is false

HELD: No. Before the institution of heirs may be annulled under Art 850 NCC, the following requisites: 1. The cause for the institution of heirs must be stated in the will 2. The cause must be shown to be false 3. It must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause Even if Basilia have used the terms “sapilitang mana” and sapilitang tagapagmana” there is no indication that had she known that the respondents were not her adopted disposition of the free portion was largely at Basilia’s discretion and she had given a large part to the respondents while giving a relatively small legacy in favor of the petitioners. The decedent’s will does not state in a specific or unequivocal manner the cause for such institution of heirs. The Court cannot annul the same on the basis of guesswork or uncertain implications. Art 850 is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution of he had known the cause for it to be false. The legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose and cannot be the subject of a collateral attack.

The statement of a false cause in the institution of heirs shall be disregarded, unless it is proved that the testator would not have made such institution had he been properly appraised of the truth. Aside from the fact

Art851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. In the event the testator fails to distribute the entire estate to a designated heir, then the “vacant” portion of his estate shall be distributed by intestacy. The same rule applies, if the testator instituted several heirs each being limited to an aliquot part and all the parts do not cover the entire inheritance. The portion which does not pertain to any instituted heir will be disposed of by way of intestacy. Art 851 is superfluous and inaccurate. It is superfluous because the situation contemplated therein is already covered by Art 841. It is inaccurate, because even if the institution is limited to an aliquot part of the estate, the remainder does not always pass in accordance with the laws of intestacy, such as when the balance is disposed of by way of legacies and devises (Tolentino, p. 185).

INSTITUTION ON ALIQUOT PARTS:

1. Rule if the entire inheritance is NOT covered a. No intention to become sole heir – mixed succession (Art. 851) i.e., A=2/5; B=1/5; C=1/5  The remainder of 1/5 shall pass to the legal heirs. Page | 99

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc b. Intention to become the sole heir to the whole estate or free portion – increase proportionately (Art. 852) 2. Rule if the aliquot parts together exceed the whole inheritance each part is reduce proportionately (Art. 853)

Art852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally.

EXAMPLE: A = ½ share; B = ¼ share; C = ½ share; Estate = P100K. A, B, and C are the universal heirs of the testator. When all fractions are added up, the testator obviously over distributed since there is an excess. Applying Art 853, A must receive P40K, B must receive P20K, and C must receive P40K.

ATTY SEBASTIAN’S FORMULA FOR ART 852 AND 853: Total share divided by total distribution multiplied by the share received. This is applicable only if they are the only heirs to receive from the estate.

H. PRETERITION

The proportional increase in Art 852 only applies when: 1. It is clear that the testator wanted to distribute his entire estate to the instituted heirs; AND 2. All of the aliquot portions given to the heirs do not cover the entire estate. If the intention of the testator is not to cover the entire estate, then Art 851 will apply.

Art 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

SOLUTION TO INCREASE SHARES PROPORTIONALLY

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Adjust the dispositions in such a way that the ratio at which the heirs would inherit shall be maintained.

EXAMPLE: A = ½ share; B = ¼ share; Estate = P100K. A and B are the universal heirs of the testator. A gets P50K and B gets P25K. Applying Art 852, A will get P66,666.66 and B will get P33,333.33. (100,000/75,000) x 50,000 = 66,666.66 (A’s share) (100,000/75,000) x 25,000 = 33,333.33 (B’s share)

Art853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. If the aliquot shares of the instituted heirs exceed the whole inheritance, then the dispositions must be adjusted in such a way that the ratio at which the heirs would inherit shall be maintained.

Ways to escape legitime: 1. Omit the name of the heir – total omission (Art 854) 2. Give ½ legitime only – completion of legitime (Art 906) 3. Inter vivos donation – donee may have to return (Art 1061)

PRETERITION – Preterition means the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regard to a compulsory heir omitting him in the will, either by not mentioning him at all, or by not giving him anything in the estate but without expressly disinheriting him, even if he is mentioned in the latter case. o If heir is born after the death of the testator (posthumous children –children born after father) OR if unintentionally omitted from the will = preterition o What is annulled is only the share of the heir NOT the legacies/devises PROVIDED that devises/legacies are not inofficious Page | 100

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

o

Only happens in TESTAMENTARY succession where there is an omission of a compulsory heir (Compulsory heir does not receive anything from the estate)

PRETERITION AND DISINHERITANCE DISTINGUISHED PRETERITION Deprivation of a compulsory heir of his legitime is tacit May be voluntary but the law presumes that it is involuntary Law presumes that there has been merely an oversight or mistake on the part of the testator Omitted heir gets only his legitime but also his share in the free portion not disposed of by way of legacies/devises

DISINHERITANCE Deprivation of a compulsory heir of his legitime is express Always voluntary Done with a legal cause

If disinheritance is not lawful, compulsory heir is merely restored to his legitime

COMPULSORY HEIRS According to the Family Code, there are only 4 sets of compulsory heirs: 1. Parents/ascendants 2. Legitimate children/descendants 3. Spouse 4. Illegitimate children

REQUISITES OF PRETERITION

1. There is TOTAL omission – Omission results in preterition only when: a. The person is not an heir, not a devisee/legatee (he receives nothing by will) b. No donation inter vivos given to him, which might be taken or considered as an advance of his legitime. If he is already given such, then he has received part of his legitime such that if he were omitted, his remedy is Art 906 i.e., demand for the completion of legitime c. There must not have been anything which could be inherited by intestacy, which means that the whole estate was distributed by will

If any part of the legitimate was paid to the compulsory heir in any form, either inter vivos or mortis causa, one cannot claim total omission and avail the benefits of preterition. If there is payment of presumptive legitimes under Art 50 FC, one cannot avail of preterition. NOTE: Support is not deemed as inheritance since support is not a gift. 2. The person omitted is a compulsory heir in the DIRECT LINE – Compulsory heirs in the direct line, specifically ascendants and descendants and the adopted children can claim the benefit of preterition. Relations in a direct line are those that are traceable between a descendant and an ascendant. Otherwise, the relations are in a collateral line.

ADOPTED CHILD – An adopted child does not become a relative in the direct line by legal fiction of adoption since this legal fiction is only for purpose of filiation. However, an adopted child becomes a compulsory heir in the direct line of his adoptive parent. Hence, he can claim preterition under Art 854

SPOUSE – A spouse is not a relative in the direct line. The spouse merely becomes a relative by the fiction of the judge or priest. 3. The preterited heir must SURVIVE the testator

ATTY SEBASTIAN: If the will is admitted to probate without mention of heir, it does not automatically mean that the heir is preterited. There must be distribution of the estate.

LEGAL EFFECTS OF PRETERITION

1. It annuls the institution of heir; 2. The devises and legacies are valid insofar as they are not inofficious; and 3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation. Page | 101

BY: C. Mejia and M. Mejia DIGESTS: E. Barretto, C. Mejia, M. Mejia and V. Pinaroc 4. Intestate succession ensues.  Where a one-sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix and it contains no specific legacies or bequests, such universal institution of petitioner, by itself is void. (Nuguid v. Nuguid, GR No. L-23445, June 23, 1966)

NOTES:

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

It is essential that the omission of the compulsory heir must be complete and total in character so that he receives nothing from the testator at all. (Jurado, p. 177) Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line However, since Art 842 protects the legitime of the SS, the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS.

Maria Gerardo died and upon her death, it was discovered that she executed two will. In the first will, she instituted Salud and Milagros as her heirs. In the second will, she revoked the same and left all her properties in favor of Milagros alone. The later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, husband of the deceased Salud, as guardian of the children, it was determined by the lower court that Salud was not a child of Maria Gerardo and her husband, Bibiano. This ruling was appealed to the Supreme Court, which affirmed the same. Having thus lost this fight for a share in the estate of Maria Gerardo as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased BibianoBarretto, which was given in usufruct to his widow Maria Gerardo (fishpond property). Hence, this action for the recovery of one-half portion, thereof.

In case of omission without preterition, the rule of Art 855 should be followed.

ISSUE: WON the partition from which Salud acquired the fishpond is

CASES: REYES V. BARRETTO-DATU, 19 SCRA 85 (1967) FACTS: Bibiano Barretto was married to Maria Gerardo. During their

HELD: No. Salud admittedly had been instituted as an heir in the late

lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan. When BibianoBarretto died in 1936, he left his share of these properties in a will to Salud Barretto (Salud), mother of plaintiff's wards, and Lucia Milagros Barretto (Milagros) and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew and nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerard. In the meantime, Maria Gerardo was appointed administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First Instance of Manila. The distribution of the estate and the delivery of the shares of the heirs followed. As a consequence, Salud took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name.

void ab initio and that Salud did not acquire title thereto

Bibiano’s last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (½) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano. Where a partition was made between two persons instituted as heirs in the will, and one of them was found out later not to be the testator’s daughter, while the other was really his daughter, it cannot be said that the partition was a void compromise on the civil status of the person who was not the testator’s daughter. At the time of the partition, the civil status of that person was not being questioned. There can be no compromise on a matter that was not an issue. While the law outlaws a compromise over civil status, it does not forbid a settlement by the Page | 102

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parties regarding the share that should correspond to the claimant to the hereditary estate.

the meaning of Art 918 NCC. Thus, under Arts 906 and 918, Helen is only entitled to her legitime, and not to a share equal to that of Lucy

Where in a partition between two instituted heirs, one of them did not know that she was not really the child of the testator, it cannot be said that she defrauded the other heir who was the testator’s daughter. At any rate, relief on the ground of fraud must be obtained within 4 years from its discovery. When Milagros was 16 years old in 1939, when the fraud was allegedly perpetrated and she became of age in 1944, and became award of the fraud in 1946, her action in 1956 to set aside the partition was clearly barred.

ISSUE: WON the estate should be divided equally among the two

Preterition is the omission of one, some or all compulsory heirs in the direct line, whether living at the time of the death of the testator, or born subsequent thereto. Among other things, Reyes holds that omission from the inheritance, as an element of preterition, must be a total omission, such that if a compulsory heir in the direct line received something from the testator under the terms of the will, such heir cannot be considered preterited AZNAR V. DUNCAN, 17 SCRA 590 (1966) FACTS: Edward Christensen was a citizen of California and was domiciled in the Philippines. When he died he left a will which alleged that he had only one child (Lucy Duncan), and that he was giving a devise of P3,600 to Helen Christensen (whom he alleged was not related to him). In the probate proceedings, the court ruled that Helen was a natural child of the deceased and that the properties of the decedent are to be divided equally between Helen and Lucy pursuant to the project of partition submitted by the administrator. Lucy argued that this is not a case of preterition, but is governed by Art 906 NCC which states that: “Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same may be fully satisfied.” Moreover, considering the provisions of the will whereby the testator expressly denied his relationship with Helen, but left her to a legacy although less than the amount of her legitime, she was in effect defectively disinherited within

children (Art 854) OR whether Lucy’s share should just be reduced to meet the legitime of Helen (Art 906)

HELD: Helen should only be given her legitime since there was no preterition. Manresa defines preterition as the omission of the heir of the will, either by not naming him at all, or while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, not assigning to him some part of the properties. The decision in Neri v. Akutin is not applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them, or at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The concept of total omission from the hereditary estate is further explained in this case. While the traditional concept of omission, based on Roman Law, means that the compulsory heir was not instituted as an heir, the same was abandoned so that if a compulsory heir were given a legacy by the testator in the will (without instituting him or her as an heir), the said compulsory heir can no longer claim the benefit of Article 854. One point deserves some consideration. Admittedly, the testator was a citizen of the State of California. Under the present Civil Code, "testate and intestate succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions shall be regulated by the national law of the person whose succession is under consideration." (Article 16, Civil Code) In the foregoing case, the estate of the testator was distributed in accordance with Philippine law, taking into account the fact that Article 854 was made to apply. This point needs clarification. NUGUID V. NUGUID, 17 SCRA 449 (1966) Page | 103

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

FACTS: Rosario Nuguid died on in 1962, single, without descendants, legitime or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and 6 brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid. Petitioner Remedios filed for probate a holographic will allegedly executed by Rosario Nuguid some 11 years before her demise. Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid opposed the probate on the ground that they were preterited.

As a general rule, the area of inquiry of a probate court is limited to the testamentary capacity of the testator and the due execution of the will. However, if it should appear on the face of the will that the sole disposition is intrinsically invalidity, and that nothing is gained from an inquiry into extrinsic validity, then a probe into the testamentary disposition, and the consequential invalidation thereof is justified for practical considerations. While Article 854 annuls merely the institution of heir, the court is justified in declaring the entire will void if the only testamentary disposition in the questioned will is the institution of the universal heir. In such a case, the effect of the nullification of the testamentary disposition would be the same as the nullification of the will itself.

ISSUE: WON the will is a complete nullity due to preterition Yes. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line: her parents. And, the will completely omits both of them. They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition.

HELD:

The one-sentence will here institutes the petitioner as the sole, universal heir—nothing more. No specific legacies or bequests are therein provided for. It is in this posture that the court says that the nullity is complete. Perforce, Rosario Nuguid died intestate. The nullification of such institution of universal heir—without any other testamentary disposition in the will—amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation

BALANAY, JR. V. MARTINEZ, 64 SCRA 454 (1975) FACTS: Leodegaria Julian died in 1973. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children, namely, Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon. Felix J. Balanay, Jr. filed in the lower court a petition.for the probate of his mother's notarial will. Paragraph V of the will stated that after her husband's death, her paraphernal lands and all the conjugal lands should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's ½ share of the conjugal assets. Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate.

ISSUE: WON the probate court erred in passing upon the intrinsic validity The devices and legacies shall be valid insofar as they are not inofficious. Legacies and devices merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will - void because of preterition - would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.

of the will, before ruling on its allowance or formal validity, and in declaring the will void

HELD: Yes. The probate court erred in holding that he will was void and in converting the testate proceeding into an intestate proceeding despite an earlier Order giving effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate.

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WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art 792 NCC). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso (Art. 143, Civil Code). But that illegal declaration does not nullify the entire will. The will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.

Balanay stresses the jurisdiction of the probate court. Unless the nullity of the will is patent on its face, the probate court should first pass upon the extrinsic validity of the will before passing upon its substantive validity. Hence, the distinction between this case and Nuguid. Upon the other hand, while the court correctly modified the husband's right to waive his hereditary right with respect to the estate of the deceased spouse, and his right to waive his half share in the conjugal estate, pursuant to the provisions of Art 750 and 752 NCC, the court was silent on the validity of the husband's conformity to the distribution of the conjugal estate in accordance with the terms of the will of the wife. Obviously, the

court assumed the validity of the renunciation of the husband of his share in the conjugal estate. Such waiver, however, may fall into one of two possible categories, i.e., inter vivos or mortis causa. If it was a waiver effective inter vivos, then it would have amounted to a donation to inter vivos to the wife. That would have been illegal under existing laws. On the other hand, if it was a waiver mortis causa, then the formalities of a will should have been observed, failing which, the waiver would be void. Furthermore, the waiver mortis causa would have required the wife to survive the husband. In either case, the alleged waiver by the husband of his half share in the conjugal estate resulted in a transmission of property to the wife. And consequently, a characterization of such waiver along the parameters mentioned above is necessary and inescapable. The fundamental question, therefore, that demands an answer is whether or not a husband or wife could waive his or her share in the conjugal estate in favor of the other by an act inter vivos. We exclude, however, a waiver resulting from a successful petition for separation of property, and the liquidation of the conjugal partnership (or for that matter, the absolute community of property) resulting from the issuance of a decree of annulment or a decree of nullity. It may be surmised that the validity of the waiver had to be assumed, properly or improperly, otherwise the case will fall under the provision of Art 784 which categorically states that the making of a will is strictly a personal act, and that the exercise of testamentary discretion cannot be delegated by a person to another. In any case, Balanay leaves many questions unanswered. Let alone the fact that the decision did not discuss why the husband was not preterited within the meaning of Art 854. CAYETANO V. LEONIDAS, 129 SCREA 522 (1984) FACTS: Adoracion Campos died in 1977, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

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

Eleven months after, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. Nenita alleged that Adoracion was an American citizen, at the time of her death and was a permanent resident of Philadelphia, PA USA. She died in Manila while vacationing. Adoracion made a last will and testament in 1975 according to the laws of Pennsylvania. Since the administrator appointed was also a resident of the US, there was a need for the appointment of an administratrix to handle Adoracion’s properties in the Philippines.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.

Hermogenes filed an opposition to the reprobate of the will since he believed that the will was a forgery and that the intrinsic provisions of the will are null and void and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would cause him injustice and injury.

Art 854 does not apply in the case of a foreign testator who omits in his or her will the compulsory heirs in the direct line. In the case of a foreign testator, the conflict rule enunciated in Article 16 of the Civil Code applies. Therefore, regardless of whatever public policy or good customs may be involved, the provision of Article 854 of the Civil Code cannot is never meant to apply to a foreign testator.

ISSUE: WON Hermogenes was preterited HELD: No. As a general rule, the probate court’s authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix’s testamentary capacity and the compliance with the requisites and solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court had declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. The law which governs Adoracion Campos's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Art16(2) and 1039 NCC, the national law of the decedent must apply.

ACAIN V. IAC, 155 SCRA 100 (1983) FACTS: In May 1984, petitioner Acain filed with RTC Cebu a petition for the probate of the will of the late Nemesio Acain based on the premise that the decedent Nemesio left a will in which petitioner and his siblings were instituted as heirs. In the will, Nemesio bequeathed all his properties to his brother Segundo on the condition that if Segundo predeceases Nemesio, said properties will be given to Segundo’s children (petitioner). Segundo predeceased before Nemesio. Thus, it is the children of Segundo who are claiming to be heirs, with Constantino as petitioner Private respondents, Virigina (legally adopted daughter of the decedent) and Rosa (decedent’s spouse) filed a motion to dismiss on the following grounds: a. The petitioner had no legal capacity to institute said proceedings b. Petitioner is merely a universal heir c. The widow and the adopted daughter have been preterited

ISSUE: WON private respondents have been preterited HELD: Yes. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned Page | 106

WILLS AND SUCCESSION REVIEWER ATTY. SEBASTIAN

therein, or though mentioned, they are neither instituted as heirs nor are expressly disinherited Insofar as the widow is concerned, Art 854 NCC may not apply as she does not ascend or descend from the testator although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir there is no preterition even if she is omitted from the inheritance for she is not in the direct line. However, the same thing cannot be said of the other respondent Virginia Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Art 39 of P.D. No. 603 (Child and Youth Welfare Code), adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopted and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

appointment of private respondent Elisa D. Seangio-Santos as special administrator and guardian ad litem of petitioner DyYiengSeangio.

Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

ISSUE: WON there was preterition

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must, as already stated above, be respected.

SEANGIO V. REYES, 508 SCRA 177 (2006) FACTS: On September 21, 1988, private respondents filed a petition for

Petitioner DyYieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) DyYieng is still very healthy and full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public accountant; and 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will.

HELD: No. With regard to the issue of preterition, the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to an altercation between Segundo and his son Alfredo. For disinheritance to be valid, Art 916 NCC requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his document, the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Art 919.

the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the Page | 107

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

Seangio resolves a number of legal questions. First, it confirms that where the sole disposition of a purported will is the disinheritance of a compulsory heir, the disinheritance is considered a property disposition. Therefore, the document is must be considered a will because it conveys property. Second, the failure of the testator to institute an heir or to even mention by name any of the compulsory heir, per se, does not constitute preterition. Third, the Court gave an indication of what could constitute maltreatment which would give an ascendant a ground to disinherit a descendant under Article 919. Art855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. This article refers to a child or descendant “omitted in a will;” and mere omission in a will does not necessarily imply preterition because the compulsory heir may have received or may still receive a part of the inheritance in some concept other than by will. There is preterition only when the heir has been completely omitted from the inheritance, and not only in the will. Art 855 does not formulate a rule for determining the extent or quantity of the share of the omitted child or descendant, but merely provides how that share, after it has been determined should be paid.

The A= B= Z=

estate will be distributed as: P22.5M (P20M in the institution and P2.5M in intestacy) P5M as his legacy P17.5M (P10M as his legitime and P2.5M in intestacy)

Art856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. GENERAL RULE: No one can transmit to another more rights than he himself has. Whether the heir is legal, voluntary or compulsory, his death before the decedent, or his incapacity to succeed, or his repudiation or renunciation of the inheritance, prevents him from acquiring any rights, therefore, he transmits nothing to his heirs.

EXCEPTION: The last part of Art 856 provides “except in cases expressly provided for in this Code,” refers to cases where the right of representation exists. However, in the case of representation, the heir represented does not transmit his rights to the heir representing for the representative acquires directly from the decedent if he had inherited.

EXAMPLE: The testator instituted his only son A, as heir to ½ of his estate and designated B (friend), as legatee to a sum of P5M. After the death of the testator, a posthumous child was born to him. Assuming that the entire estate is P40M, ½ thereof or P20M is the free portion and the other ½ is the legitime of the two children. As the legacy to B is not annulled and must be given effect. A was instituted to ½ of the estate, as such there is an undistributed portion of P15M. According to Art 855, Z is entitled to P10M to be taken from the undistributed free portion. However, there is a balance of P5M available to the intestate heirs, A and Z.

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