Succession Midterms Reviewer

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| SUCCESSION MIDTERMS REVIEWER

I. GENERAL PROVISIONS A. Definitions Concept of Succession 1. Transmission of property, rights and obligations of a person  to subrogate’ put one person in the place of another; substitution of the deceased person by a living person in all transmissible property and juridical relations 2. Universality or entirety of the property, rights and obligations transmitted by any of the forms of succession admitted in law 1. SUCCESSION - mode of acquiring ownership; the inheritance of a person is transmitted either according to his express will and words or as provided for by law; legal mode by which inheritance is transmitted. a. DECEDENT/TESTATOR – person whose property is transmitted through succession b. HEIR - anyone who succeeds to the whole or portion/fraction of the inheritance; continuation of the personality of the deceased. Kinds of Heirs 1. Compulsory – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. 2. Voluntary/testamentary – instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose; right to succession depends entirely upon the will. 3. Legal/intestate – when there’s no will. c. LEGATEE/DEVISEE – given a gift of personal (legatee) and real (devisee) property; determinate or individualized thing or quantity Why is distinction between heirs and devisees/legatees important? In case of preterition (exclusion of compulsory heirs in a will), heirs will be annulled and d/l will be respected. d. PROBATE – judicial declaration of validity of will. (Balus v. Balus; J. Peralta 2010) The rights to a person’s succession are transmitted from the moment of his death. Inheritance consists of the property and transmissible rights and obligations existing at the time of his death, as well as those which have accrued thereto since the opening of the succession. Thus, in the eyes of the law, the disputed lot no longer formed part of the estate because Rufo lost it in his lifetime and did not pass into the hands of petitioner and respondents as compulsory heirs of Rufo at any given point in time. 2. INHERITANCE –mass or totality of the patrimony of the deceased person; includes all property, rights and obligations not extinguished by death of decedent

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Not transmissible: 1. Arising from marriage 2. Action for legal separation (only to the innocent spouse) 3. Action to annul marriage 4. Legal support (except in cases expressly provided in law) 5. Right to receive support 6. Rights of patria potestas (paternal power) 7. Right of the guardian 8. Right of usufruct 9. Right of the donor to revoke donation due to ingratitude 10. Rights arising from agency 11. Criminal responsibility A. Personal Rights * Rights which are purely personal are by their nature and purpose intransmissible, extinguished by death (civil personality, family rights, discharge of public office) B. Patrimonial Rights * Patrimonial rights are not extinguished by death and are transmissible unless the law or will of testator expressly provides otherwise. (Spouses Santos v. Lumbao; J. Chico-Nazario 2007) The 107 sqm lot already sold to Sps. Lumbao can no longer be inherited by petitioners because the same was no longer part of their inheritance as it was already sold during the lifetime of their mother. (Union Bank v. Santibanez) Well-settled is the rule that a probate court has the jurisdiction to determine all the properties of the deceased, to determine whether they should or should not be included in the inventory or list of properties to be administered. There can be no valid partition among the heirs until after the will has been probated. (Alvarez v. IAC; J.Fernan 1990) Under our law, therefore, the general rule is that a party's contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive 'depersonalization' of patrimonial rights and duties. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, in consideration of its performance by a specific person and by no other. Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which gave rise to the present claim for damages. C. Contractual Obligations * Rights of obligation are transmissible except: - personal (personal qualifications and circumstances of debtor have been taken into account in the creation of the obligation

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- intransmissible by express agreement or by will of testator - intransmissible by express provision of law (life pensions) 3. VESTING OF SUCCESSION RIGHTS Death of a person vests succession rights; consolidates and renders immutable, in a certain sense, rights up to that moment were nothing but mere expectancy; rights which do not acquire any solidity and effectiveness except from the moment of death 2 Things to Consider: 1. Origin of existence of right - may be the will of the testator or the provisions of the law 2. That which makes the right effective – death of the person - Rights is always deemed to retroact at the moment of death; right of the State to collect inheritance tax accrues at the moment of death (value of property at time of death) Elements of Transmission 1. Express will of the testator / provision of law 2. Death of decedent 3. Acceptance of inheritance Presumption of Death 1. Generally – 10 years; if 75 years old – 5 years (Art. 390) 2. Special circumstances (on board vessel lost during sea voyage, armed forces in war, in danger of death) – 4 years (Art. 391) (Uson v. Del Rosario) The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation only if no vested rights are impaired. Hence, since the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband, the new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. (Borja v. Borja) As a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 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. (Bonilla v. Barcena) Article 777 of the Civil Code 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

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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 was vested in them even before judicial declaration of their being heirs in the testate or intestate proceedings. When Fortunata Barcena, therefore, died, her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. (Lapuz v. Eufemio; J. Reyes 1972) An action for legal separation is purely personal, it follows that the death of one party to the action causes the death of the action itself. The right to the dissolution of the conjugal partnership of gains, the loss of right by the offending spouse to any share of the profits earned by the partnership, or his disqualitifcation to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favour of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their very nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. B. Kinds of Succession 1. Testamentary – results from designation of heir made in a will executed in the form prescribed by law; will of testator must be recognized as the supreme law in succession; testamentary succession is preferred over intestate or legal succession 2. Legal 3. Mixed – effected partly by will and partly by operation of law Can there be contractual succession? 1. NO. There cannot be contractual succession because inheritance cannot be transmitted by agreement (Valverde and Sanchez Roman) 2. YES, in exceptional cases. The marriage settlement (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) – parties may give to each other as much as 1/5 of their present property and with respect to their future property, only in the event of death to the extent laid down by the provisions or this Code referring to testamentary succession (disposition mortis causa) (Manresa)

II. PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION A. Right of Accretion 1. Def: Accretion right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot

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receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or colegatees.

upon the heir instituted, absence of one of the heirs long enough to have him declared presumptively dead 3. Effects

Basis of Right - Presumed will of the decedent; When a testator leaves one specific thing to two or more persons, without express designation of shares, undoubtedly he gives to these persons a preference over the thing given. Naturally, when one of them repudiates or is incapable of succeeding, the vacant share is given to the co-participants

a. Right of accretion does not affect intestate succession because there is technically no vacant share. The result is the same, shares go to legal heirs who ultimately succeed. (1018)

Contrary Will of Testator - Testator can expressly provide that there shall be no accretion; testator can provide for accretion in a case where no accretion would take place under the provisions of the law Repudiation st 1 view – Heir cannot repudiate share that goes to him by right of accretion; inheritance is a juridical unit and cannot be considered as divided into parts. nd 2 view – distinction should be made between testate and intestate succession  Testamentary – heir can renounce accretion and accept his part because personal portion and the portion which accrues are two different parts  Intestate – accretion is compulsory in nature such that none of the heirs can accept his own portion and renounce the vacant portion (Manresa) equitable solution is to give heirs option (Scaevola) Accretion is a right not an obligation. It would be converted into a cumbersome obligation if co-heirs were not given the right to renounce when a vacant portion occur. The right of accretion is voluntary not compulsory. * Right of representation – when heir predeceased testate, his heir accretes.

NO ACCRETION: 1. (TESTATE) Express will of testator 2. (INTESTATE) Incapacity of child/descendant because representation will take place 3. (INTESTATE) Predecease of a co-heir; survivors are called to succession in their own right or by right of representation b. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (1019) c. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (1020) d. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (1021) * No accretion in legitiime but only in the free portion. Testate * How accretion is prevented: X

2. Requisites a. Unity of Object and Plurality of Subjects - Subjects must be called to the same inheritance – jointly, in the same will and under same testamentary disposition, without the testator making a distribution of shares * When the institution is made in unequal parts, there will be no accretion; The difference in the quotas indicates the intention of the testator to limit the right of each heir exclusively to the part to which he is instituted (Scaevola) * For accretion, it is enough that from the language used by the testator, it can be inferred that he has no intention to make a division, materially or in aliquot parts, of the inheritance or property. 2. One of the heirs designated dies before the testator, or renounces the inheritance, or is incapable to receive it – includes non fulfilment of suspensive condition imposed

A

B

[C –Z (1)]

(1) Testator appoints substitute (2) Testator provides expressly in will that there won’t be accretion e. If no accretion (testamentary succession) the vacant portion of the instituted heirs shall pass to the legal heirs of the testator. (1022) B. Capacity to Succeed 1. Requisites a. General civil capacity b. No incapacity/prohibition to succeed (1024) * Requisites should be present at the time of death and/or time of condition

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Types of Incapacity: 1. Absolute (per se) 2. Relative (per accidens) – disqualification only with respect to specific persons/property * Heir, devisee or legatee should be living at the moment succession opens. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (1025) * The State, provinces, municipal corporations, private corporations, organizations or associations for religious, scientific, cultural, educations or charitable purposes may be testate heirs (1026). When would a corporation have juridical capacity? At the time it gets Certificate of Registration from SEC * BUT there are certain corporations prohibited by law to succeed (ex. Law, charity  vested with public interest) * FOR PRAYERS AND PIOUS WORK- if general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (1029) *FOR POOR IN GENERAL - deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. Who shall designate who are to be considered poor? 1. One appointed by testator 2. Executor 3. Justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. *The approval of the Court of First Instance shall be necessary. (Parish Priest of Victoria v. Rigor) Capacity to succeed is determined at the time of death of the testator.

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B. Interposition (1031) Testator institutes A as heir; he has an agreement with A to give inheritance to B; means to skirt Art. 1032 - disguising a disposition in a form of contract  ground to challenge by other heirs Is it valid if the one transferred to takes the property? Tolentino: YES, valid if given; Testator ran the risk Balane: No, contact is void. C. Relationship (1027) – P G – T R A P 1. Priest/minister of gospel who extended spiritual aid 2. Guardian (unless descendant. Ascendant, brother, sister or spouse) 3. Those not permitted by law th 4. Relatives of priest (with 4 degree) 5. Attesting witness + spouse, parents, children 6. Physician, surgeon, nurse, health officer or druggist (during last illness) Balane: What has to be proved is relationship; concept of influence is presumed 2

D. Unworthiness (1032) C H A P – F A G 1. Convicted of an attempt against life of testator, spouse, descendants, ascendants 2. Heir (of full age) who failed to report violent death of testator within a month. Unless the authorities have already taken action; Not applicable to cases wherein, according to law, there is no obligation to make an accusation2. 3. Abandoning parents; induced daughters to lead corrupt or immoral life; attempted against virtue 4. Prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will 5. Fraud, violence, intimidation, or undue influence to cause the testator to make a will or to change one already made 6. Falsifies or forges a supposed will of the decedent. 7. Adultery or concubinage with the spouse of the testator 8. Groundlessly accused testator of crime penalized by 6 years imprisonment or more 3. Pardon * Pardon in writing or knowledge at time of death shall cause unworthiness to be without effect (1033)

2. Grounds for Incapacity to succeed – V I R U Void Donation Interposition Relationship Unworthiness A. Void Donations  on the grounds of public policy 1. Adultery 2. Same criminal offense 3. Public officer, wife, descendants; by reason of his office (1028)

IMPLIED PARDON If testator knows of such unworthiness but designates him/her nonetheless.  although not a given: mere silence is not sufficient to constitute implied pardon; prove that testator know of unworthiness and there was some kind of disposition 4. Effects a. Children/descendants of incapacitated child/descendant of the testator shall acquire right to legitime. Person

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excluded shall not enjoy usufruct and admin of property inherited by children (1035)

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* The acceptance of inheritance may be said to be the confirmation of the institution of the heir, the perfection of the right to succeed.

If unworthy is entitled to a legitime (a son)

LEGITIME

FREE PORTION

(SACRED)

 if free portion remains, it will be subject to intestate succession (divide with other compulsory heirs) b. Alienations and acts of admin by excluded heir shall be valid as to third persons who acted in good faith if performed before judicial order of exclusion but the co-heirs shall have a right to recover damages from the disqualified heir (1036). c. Unworthy heir has a right to demand indemnity or necessary expenses incurred and to enforce such credits as he may have against estate (1037) 5. Restitution Excluded heir who took possession of hereditary property shall return the same with accessions. He shall be liable for fruits and rents received or could have received through exercise of due diligence (1038).  similar to possessor in bad faith; heir should make accounting first and be reimbursed of expenses 6. Governing Law Capacity to succeed is governed by the law of the nation of the decedent (1039). (Cayetano v. Leonidas) As regards intrinsic value of the will, the national law of the decedent must apply 7. Prescription 5 years from possession (not time of death) – action to declare incapacity and recovery of inheritance (1040).

Voluntary Acts * Heir has the freedom to accept or repudiate inheritance because the act only prejudices the heir himself. This follows the principle that rights granted by law may be waived, provided such waiver is not contrary to public morals. * Violence, intimidation, undue influence, error and deceit will defeat effects. Partial Acceptance * Not allowed by the Old Civil Code because it places uncertainty to transmission of rights by succession. (Sanchez Roman) The will of the testator should be respected by the will of the heir because it is more fundamental and preferred but both should concur to perfect the relation. (Manresa) Heir cannot be permitted to continue the personality of the decedent or represent him in fraction. All or nothing. * Partial acceptance is now allowed: - (Indivisibility argument) Heir in the law is no longer a continuation of the personality of the deceased; same footing as that of the legatee - (Prejudice to creditors) Creditors of the estate must be paid first Retroactive Effect *The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent (1042). * To retroact at the time of death of the decedent; will of the heir to take inheritance is made simultaneous to the death of the decedent. (Continuity of ownership should not suffer) *Old Civil Code prohibits acceptance or repudiation with a term or condition (distinguished from power of testator to designate day and time to effect institution of heir) as violative of the law.  To allow acceptance/repudiation with a term or subject to a condition would be contrary to the principle that there should not be hiatus or gap even for a moment. It would also be inconsistent with the irrevocable character of acceptance or repudiation.

C. Acceptance and Repudiation of Inheritance 1. In General Acceptance –person called to succeed by universal title either by the testator or by law manifests his will of making his own the universality of the rights and obligations which are transmitted to him Repudiation – manifestation of such heir of his desire not to succeed to the said universality. * No person can be forced to take any property through inheritance. It should be a voluntary act (1041)

2. Requisites Requisites of Acceptance (1043) 1. Certainty of death  Will of man is changeable  The person who accepts or repudiates an inheritance from a living person cannot know whether he will survive or predecease the decedent or whether he will have the capacity to succeed in the latter’s succession 2. Certainty of his rights to the inheritance  Ineffective if heir knows that will is null and void or when he is not sure whether there are certain relatives nearer in degree or when he is unsure if he was instituted. 3. Capacity

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Capacity to Accept * Persons having the capacity to succeed but not having the capacity to dispose of their property may not accept or repudiate but legal representatives (parents/executors) may do so for them. *Acceptance presupposes not only rights but also obligations; Repudiation means alienation  Court intervention would not be necessary if act is purely beneficial to the minor or incapacitated person. BUT intervention should be obtained where the institution is subject to a charge or condition to be performed by a minor/incapacitated.  Judicial affirmance is always necessary for repudiation (because it amounts to alienation) Institution of the poor in general can only accept not repudiate BUT the individuals who may be selected as poor have the freedom to accept or repudiate the property or portion that may be given to them. *Corporations/associations - judicial approval is needed in repudiating because of the public interest imbued in these institutions (1045). *Public Official Establishments cannot accept or repudiate an inheritance without government approval (1046). Public establishment – organizations which have their own social and public purpose separate from the mere manifestation of the governmental functions of the State (ex. Public universities, libraries and archives). It is indispensable that the organizations must have a distinct public service to fulfill and performs successive acts to realize it.

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inheritance, or when he performs showing the clear intention to accept; failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court. 3. Renunciation is in Favor of all heirs indiscriminately for consideration - Not a renunciation at all; considered as acceptance, not only when made in favor of the co-heirs, but also when in favor of substitutes, or of the person called to the inheritance by virtue of intestate succession of the right of accretion. 4. Sells, donates or assigns his right - involves an alienation and no one can transmit anything other than his own; ownership is justified by an implied acceptance. Acts NOT constituting inheritance 1. Repudiation without consideration in favor of the persons to whom his share will pass in the absence of the heir repudiating  law cannot imply tacit acceptance because the act is equivalent to an absolute repudiation 2. Acts which heir has the right to perform even without the character of an heir

5. Manner of Repudiation (1051) a. Public/authentic instrument b. Petition to court having jurisdiction

 The approval may be given by the head of the department to which the public establishment belings or is subordinated.

Formality of Repudiation The acceptance of an inheritance confirms the transmission of the right of succession while repudiation makes transmission ineffective (more violent and disturbing consequences) * The publicity of repudiation is needed for the benefit of the creditors and the public interest; opens the way for other heirs

*Married women – may accept/repudiate without consent of husbands (1047) * Deaf-mutes – can read and write may accept/repudiate personally or through an agent; cannot read and write accepted by guardians. Judicial approval needed (1048).

Authentic Instrument Sanchez-Roman & Valverde: authentic refers to document distinct and apart from a public or notarial instrument. “Authentic instrument” is one whose genuineness is admitted or clearly proved

4. Forms of Acceptance 1. Express – must be in public or private document 2. Tacit – resulting from acts by which the intention to accept is necessarily implied/ which one would have no right to do except in the capacity of an heir * acts if mere preservation/provisional administration is not acceptance if title or capacity of an heir has not been assumed (1049).

6. Effects of Repudiation a. Repudiation by Heir to the prejudice of creditors Creditors may petition court to authorize acceptance of inheritance. Benefit shall only be to an extent sufficient to cover credits excess shall be adjudicated to persons whom it may belong (1052).

When deemed accepted (1050): R O F S 1. Renounces it for the benefit of one or more heirs - involves a cession, an act of disposition 2. Others - Can be inferred from other acts; demands partition of the inheritance, or when he alienates some objects of the

Acceptance by Creditors * co-heirs benefit by receiving more property, creditors are prejudiced  Acceptance shall benefit in so far as it covers the amount of their credits; excess shall be adjudicated to person it may pertain to

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Requisites: 1. There must be repudiation by the heir-debtor in legal form which is valid in law 2. There must be credits existing against the heir who repudiates 3. Judicial authorization must be obtained before the creditors may accept for the debtor 4. Act of repudiation prejudices claims of creditors * Acceptance by creditor does not annul or revoke the repudiation made by the heir, it rescinds to an extend sufficient to protect the interest of the creditors. b. If heir dies without accepting or repudiating – right shall be transmitted to his heirs (1053) c. Several heirs – some may accept and others may repudiate (1054) d. Heir in two capacities - Intestate heir repudiates inheritance in his capacity as testamentary heir, presumed to have repudiated in both capacities but NOT vice versa (1055)  When an heir who is such by will repudiates, he shows his dislike to become heir in any concept whatever  The repudiation of the express will of the testator includes that of a presumed will, but the repudiation of the latter still leaves the express will open to respect. d. Acceptance/ repudiation is irrevocabla and cannot be impugned expect when consent is vitiated or when an unknown will appears (1056). Irrevocability of Inheritance - would lead to confusion and serious results; results in disturbance in rights already vested and may lead to instability of juridical relations Exceptions: 1. When the acceptance or repudiation suffers from any of the vices which annul consent (mistake, error, violence, intimidation, undue influence and fraud) 2. When an unknown will appears

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* Acceptance/repudiation shall be signified to court within 30 days after issuance of order; failure to so such deems heir to have accepted inheritance (1057).

Distinguished from Waiver of future inheritance All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1347)

III. TESTAMENTARY SUCCESSION A. Wills 1. Def: An act where a person is permitted to control the disposition of estate to take effect after his death (783) (Vitug v. CA) Will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. The bequest or device must pertain to the testator. The monies subject of savings account were in the nature of conjugal funds. A survivorship agreement is simply their joint holdings not a delivery of one party's separate properties in favor of the other, but simply, their joint holdings. A survivorship agreement is an aleatory contract whereby one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 2. Characteristics a.

Purely personal

Effect of Mistake - error must not be due to negligence of the heir; should be based on facts and circumstances which the heir could not have known notwithstanding due diligence on his part

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

Effect of Violence and Intimidation - violence (external acts imposed upon the heir to accept or repudiate) and intimidation (works internally in the mind forcing him to accept or repudiate) removes effect of repudiation/acceptance

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)

Effect of Fraud rd - must be practiced by a 3 person; must be serious and must consist of insidious words or machinations without which the heirs would not have accepted or repudiated

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) b.

Free and intelligent

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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. (n) c.

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designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n) Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) d.

Revocable and ambulatory

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) e.

Mortis causa

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

Solemn and formal

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

f.

Individual

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) g.

Executed with animus testandi

h.

Executed with testamentary capacity

Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

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.

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)

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

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)

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

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who

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opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n) Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

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Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n)

Rabadilla v. CA (Purisima)

Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n)

Seangio v. Reyes (Azcuna) A holographic will 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.

i. j.

Unilateral Dispositive – disposes of property

Alfredo’s disinheritance is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo.

3. Construction and Interpretation Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n)

The intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. Holographic wills should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. Unless the will is probated, the disinheritance cannot be given effect. There was no preterition. Segundo’s last expression was 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 the altercation between Segundo and his son, Alfredo. Dizon-Rivera v. Dizon (Teehankee) "the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise." (Villanueva v. Juico). 4. Law Governing Form Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

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Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n)

bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity.

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)

7. FORMS a. Notarial Will i. In writing, Language Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)

ii. Manner of signing Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a) 5. Joint Wills Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) (Dela Cerna v. Potot) The validity of the joint will, in so far 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. Therefore, the undivided interest of Gervasia should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. 6. Testamentary Capacity Ortega v. Valmonte (Panganiban) Fraud “is a trick, secret device, false statement, or pretense, 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 executes, 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.” Sound mind: (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. 

Despite his age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) iii. Acknowlegded before Notary Public Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n) iv. Substantial Compliance Rule Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) v. Disabled Testators Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n) Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language

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used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) vi. Witnesses Art. 820. Any person of sound mind and of the age of eighteen years or more, and not bind, 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. (n) Art. 821. 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. (n) Art. 822. 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. (n) Art. 823. 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. (n) Art. 824. 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. (n)

b. Holographic Will A holographic will can be in any form as long as the intent to dispose is clearly shown. i. General Requirements Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a)

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Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) (Roxas v. De Jesus) The underlying and fundamental objectives permeating the provisions of the law wills consists in the liberalization of the manner of their execution with the end in view of 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. 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 (Rey v. Cartagena 56 Phil. 282). 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. As a general rule, the "date" in a holographic Will should include the day, month, and year of 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 is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. (Labrador v. CA) The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. (Gan v. Yap) The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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." This is a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. From the testimony of such witnesses (and of other additional witnesses) the court may form its

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opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. With regard to holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." “In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses need not have seen the execution of the holographic will, but they must be familiar with the decedent’s handwriting. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity — the testator's handwriting — has disappeared. The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. Could Rule 77 be extended, by analogy, to holographic wills? (NO) Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen — an implied admission that such loss or theft renders it useless. As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.(According to the Fuero, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: 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. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the

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subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they cannot receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, s. 6. (Rodeles v. Aranza) 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 handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made by the probate court with the standard writings of the testator. The probate court would be able to

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determine the authenticity of the handwriting of the testator. (Azaola v. Singson) Article 811 is merely permissive and not mandatory. Since the authenticity of the will was not contested, petitioner was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 cannot be interpreted 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, new Civil Code), 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 must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "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 Article 811 may thus become an impossibility. nd This is the reason why the 2 paragraph of Article 811 allows the court to resort to expert evidence. 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. 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 and the court is convinced by their testimony that the will is genuine, it may 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, in fine, 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. (Codoy v. Calugay) The word “shall” connotes a mandatory order, 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. In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. The paramount consideration in the present petition is to determine the true intent of the deceased. We cannot be certain that the holographic will was in the handwriting of the deceased.

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The clerk of court was not presented to declare explicitly that the signature appearing in the holographic will was that of the deceased. The election registrar was not able to produce the voter’s affidavit for verification as it was no longer available. The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare that she saw the deceased sign a document or write a note. The will was not found in the personal belongings of the deceased but was in the possession of the said niece, who kept the fact about the will from the children of the deceased, putting in issue her motive. Evangeline Calugay never declared that she saw the decreased write a note or sign a document. The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. (As it appears in the foregoing, the three-witness requirement was not complied with.) A visual examination of the holographic will convinces that the strokes are different when compared with other documents written by the testator. The records are remanded to allow the oppositors to adduce evidence in support of their opposition. The object of solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the handwriting of the deceased. Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.” The word “shall” connotes a mandatory order, 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.

ii. Formal Requirements Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

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(Ajero v. CA) A reading of Article 813 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. Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance with the provisions of Article 814. Unless the authenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator’s signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. It is also proper to note that he requirements of authentication of changes and signing and dating of dispositions appear in provisions (Article 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the NCC – and not those found in Articles 813 and 814 – are essential to the probate of a holographic will. Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the grounds for disallowance of wills. These lists are exclusive; no other grounds can serve to disallow a will. In a petition to admit a holographic will, the only issues to be resolved are: 1. whether the instrument submitted is, indeed, the decedent’s last will and testament; 2. whether said will was executed in accordance with the formalities prescribed by law; 3. whether the decedent had the necessary testamentary capacity at the time the will was executed; and 4. whether the execution of the will and its signing were the voluntary acts of the decedent. The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud; accordingly, laws on this subject should be interpreted to attain these primordial ends. In the case of holographic wills, what assures authenticity is the requirement that they be totally authographic or handwritten by the testator himself. Failure to strictly observe other formalities will no result in the disallowance of a holographic will that is unquestionable handwritten by the testator. (Kalaw v. Relova) Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem 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. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full

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authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. iii. Interpretation Seangio v. Reyes (supra) 8. Codicils and Incorporation by Reference Art. 825. 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. (n) Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n) Art. 827. 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. (n) 9. Revocation of Wills a. Time - any time before his death. Any waiver or restriction of this right is void (828). b. Place NON-RESIDENT, OUTSIDE PHILS – place where will was made, domicile of testator at the time will was made if revocation took place in this country (829).

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c. Manner - I W B 1. Implication of law 2. Will, codicil, or other writing executed as provided in case of wills 3. 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 obliteration are established according to the Rules of Court (830).

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.

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 (831)

(Casiano v. CA) The physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is 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. "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. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned. The two witnesses were illiterate and does not appear to be unequivocably positive that the document burned was indeed Adriana's will. Guadalupe believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay. It is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations.

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 (832) A revocation of a will based on a false cause or an illegal cause is null and void (833). The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked (834). (Gago v. Mamuyac) 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 of 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. In view of the fact that the original will of 1919 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, we are forced to the conclusion 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

10. Republication and Revival The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form (835).

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The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil (836). 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 (837). 11. Allowance and Disallowance of Wills a. Probate Testate over Intestate Proceedings Testate proceedings take precedence over intestate proceedings; it could not be dispensed with and is a matter of public policy. 2 Kinds of Probate Proceedings  Ante mortem probate – had during the lifetime of the testator; an innovation of the New Civil Code. Reasons it was allowed include minimization of fraud and undue influence, ease for the courts to determine mental condition of the testator during his lifetime, lessen number of contests. Testator may still alter or revoke will before his death, a new will should be made and be petitioned to be allowed.  Probate after death of testator RTC acquires jurisdiction upon showing: 1. decedent died leaving a will 2. if resident – resided or died in the province where court exercises territorial jurisdiction 3. if non-resident – where estate is situated 4. testament or last will delivered to the court Residence of Deceased is not jurisdictional; only venue. Presentation for Probate – the will shall always be subject to the control of the testator down to the time of his death. If it has been placed in the custody of another, he/she shall deliver the will to the court having jurisdiction or to the executor 20 days after knowledge of death of the testator. This shall also be applicable to the executor unless the will has been returned to the court and shall within such period, signify to the court his acceptance of the trust or make known in writing his refusal to accept it. Executor’s neglect of such duty with regard presentation of the will and the acceptance/rejection of executorship shall be subject to a fine of not exceeding P2000 unless he gives a satisfactory excuse to the court. Custodian of the will’s neglect to deliver may be committed to prison and be kept until he delivers the will. Petition for Probate may be instituted by: 1. Any executor, devisee, legatee OR 2. Any other person interested in the estate at any time after death of testator. It must show: 1. fact of death (+time and place of death)

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2. fact the deceased left a will (attach copy of will) 3. fact that the will was executed according to law 4. whether the person consents or renounces executorship 5. names, ages, residences of the heirs, legatees and devisees of the decedent. 6. probable value and character if the property 7. name of person whose prayed to be appointment 8. name of custodian of will (if undelivered to the court) Notice of Hearing shall be caused to fix a time and place for proving a will which shall be published 3 successive weeks in a newspaper of general circulation. Copies of notice shall be sent to: 1. known heirs, legatees and devisees 2. person named as executor 20 days before hearing. 10 days if sent personally. Proof at Hearing: 1. fact of death of testator (if probate after death) 2. publication of notice of hearing 3. execution of the will with the formalities required by law. Lost or Destroyed Will shall only be proved if: 1. execution and validity established 2. will in existence at the time of the death of testator 3. fraudulently/accidentally destroyed during the lifetime of the testator without his knowledge 4. provision are clearly and distinctly proved by at least 2 credible witnesses. If proved, provisions must be distinctly stated and certified by the judge, under the seal of the court and the certificate must be filed and recorded as other wills are filed and recorded. Witness to Probate If no contestant, witness shall testify due execution of the will. If contested, subscribing witnesses must be produced and examined. If only two witnesses testify, proceeding should be remanded to the trial court for the testimony of rd the 3 witness if available. Effect of Probate The order allowing the will (after it has become final) is conclusive as against the whole world. (proceeding in rme)  Validity of Provisions – The court is only concerned with the due execution of the will and the capacity of the testator; it does not delve into the validity of the provisions. The probate of the will does not affect legitimate rights of the heirs. However, it was held in Balanay v. Martinez that the court may pass upon the intrinsic validity before establishing the formal validity where practical considerations demand such (depending on the facts)  Rights of Heirs – Status and rights of persons to inherit will only be resolved if in relation to the probate of the will in an absence of an appeal therefrom.

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 Title to Property – Probate court may only resolve whether property should be included in the inventory but is onlt provisional in character; cannot be subject to execution and doesn’t constitute res judicata. Probate  Setting Aside – FAME (fraud, accident, mistake, excusable negligence) as grounds for setting aside judgment; to be filed within 60 days after learning of judgment  Probate of Codicil – may still be instituted notwithstanding probate of the will; failure to oppose the will does not preclude him from opposing codicil.  Probate of New Will – not barred by probate of a will if posterior to the one already probated (or if earlier, can stand together)  Probate after Intestate Proceedings – to render such letters of administration void without setting them aside. Disallowance of Wills  Undue Pressure and Influence – there must be coercion; any means employed upon and with the testator which, under the circumstances by which he was surrounded, he could not well resist, and which controlled his volition, and induced him to go what he otherwise would not have done. It destroys the free agency of the testator and interfere with the exercise of that discretion which the law requires as testator to possess as essential to a valid testamentary disposition.  Fraud or Trickery – does not involve coercion; may be such character that the testator is misled or deceived (nature/contents of document, extrinsic facts and 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. No subsequent ratification is good without a formal re-execution or republication. (Gallanosa v. Arcangel) The decree of probate is conclusive as to the due execution or formal validity of the will. That means that the testator was of sound and disposing mind at the time he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine. (Dela Cerna v. Potot) The joint will being prohibited by law, its validity, in so far as the estate of the wife is concerned, must be reexamine and adjudicated de novo. The undivided interest of the wife should pass upon her death to her intestate heirs and not to the testamentary heir. Thus as to the disposition of the wife, the will cannot be given effect. A decree of probate decree is conclusive on the due execution and the formal validity of the will subject to such probate.

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Roberts v. Leonidas (1984) 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 in 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. (Nepomuceno v. CA and Reyes v. CA) 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 (Nuguid v. Nuguid) (Dorotheo v. CA) Intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions thereof cannot be give effect. (Camaya v. Patulandong) It is well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that said court could do as regards said properties is to determine whether they should not be included in the inventory. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for final determination of the conflicting claims of title because the probate court cannot do so. Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. The probate court exceeded its jurisdiction when it declared the deed of sale and the titles of the Camayas as null and void, it having had the effect of depriving them possession and ownership of the property. (In Re: Will of Palaganas) Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not yet been probated and allowed in the countries of their execution.

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2

b. Grounds for Disallowance – F I F U M 1. Formalities not complied with 2. Insane or mentally incapable of making a will, at the time of its execution; 3. Force or under duress, or the influence of fear, or threats; 4. Fraud signature 5. Undue and improper pressure and influence, on the part of the beneficiary or of some other person; 6. Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (839) Denial of Probate – a will should not be disallowed on dubious grounds (Alsua-Betts v. CA) Between the highest degree of soundness of mind and memory which unquestionably carries with it full

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testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." The mere fact that the testator was in advanced age doesn’t mean he didn’t have the capacity or his consent was vitiated; such should be proven by competent evidence.

B. Institution of Heirs Art. 356 Kind of Heir COMPULSORY VOLUNTARY LEGAL

Predecease 1. Transmit nothing 2. Representation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. Representation

Incapacity SAME SAME SAME

1. In General Art. 840. 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. (n) Art. 841. 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. (764) a. Extent of grant Art. 842. 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. 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. (763a)

Renunciation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. NO Representation

Disinheritance 1. Transmit nothing 2. Representation 1. Transmit nothing 2. Representation 1. Transmit nothing 2. Representation

Art. 856. 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. (766a) c. Compulsory Heirs Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287.

b. Effects of predecease of heir

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Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a) d. Voluntary Heirs 2. Identification of Heirs, Manner of Institution Art. 843. 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. (772) Art. 844. 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. 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. (773a) Art. 845. 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. (750a) Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) Art. 847. 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. (769a) Art. 848. 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. (770a)

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Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771) Art. 851. 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. (n) Art. 852. 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. (n) Art. 853. 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. (n) 3. Cause Art. 850. 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. (767a) 4. Preterition 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. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) a. Concept b. Distinguished from Inheritance c. Who are covered d. Effects

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