Succession Tolentino Notes
Succession – Arturo Tolentino Notes General Principles By succession, the transmissible property, rights and obligations of a person pass, upon his death, to his heirs and other successors mortis causa. Succession only refers to the inheritance or universality of the property of the deceased transmitted to his successors mortis causa. It has no reference to the corpse or mortal remains of the deceased, which cannot be considered as forming part of the inheritance in as much as it is not property. Although a person cannot dispose of his corpse by act inter vivos or mortis causa as property, he may provide for the manner by which it shall be disposed of. According to R.A. 349, a person may give authorization to use parts of his corpse for medical, surgical and scientific purposes. Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n) Succession refers to the legal mode by which this inheritance is transmitted to the persons entitled to it surviving the deceased. Inheritance refers to the objective element of succession, meaning the mass or totality of the patrimony of the deceased. Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n) Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659) In general, rights arising from public law, or whose duration is limited by law to the lifetime of the owner or which require the intervention of the owner for their exercise are intransmissible. The following general rules can be laid down: 1. Purely personal rights are intransmissible. 2. Property rights are not extinguished by death except those expressly provided by law or by the will of the testator. 3. Rights of obligation are by nature transmissible except (1) those where personal qualifications and circumstances are taken into account, (2) those that are intransmissible by agreement or will and (3) those that are intransmissible by express provision of law.
The heirs of the deceased are no longer liable for the debts he may leave at the time of his death. Such debts are chargeable against the property or assets left by the deceased. Only what remains after all debts have been paid will be subject to the distribution among the heirs. Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) There are two things to consider. One is that from which originates the existence of the right, which may be the will of the testator or the provisions of the law; and the other is that which makes the right effective, which is the death of the person whose succession is in question. It is immaterial whether a short or long period of time elapses between the death of the predecessor and the entry in the possession of the properties of the inheritance, because the right is always deemed to retroact to the moment of death. Unless there is a pending special proceeding for the settlement of the estate of the deceased, the legal heirs may commence an ordinary action arising out of the right belonging to the deceased without the necessity of a previous and separate judicial declaration of their status as such. While a deceased’s heirs or legatees acquire the ownership of the property given them in the will and may take possession of their respective portions upon death of the predecessor, yet upon appointment of an administrator, the latter by virtue of his appointment acquires a right to the possession of the property of the estate, subject to the orders of the court unless he consents to the heirs continuing in possession thereof. Nevertheless to the heir passes not only the right of ownership but also the right of possession, as of the moment of death of the predecessor. Death is not the sole factor effecting the transmission of rights. The following are the requisites of transmission of successional rights: 1. Express will of the testator within the limits prescribed by the law, calling certain persons to succeed him or in the absence of a will, the provision of the law prescribing the presumed will of the decedent 2. Death of the person whose succession is in question 3. Acceptance of the inheritance by the person called to succession. Death includes presumed death. After an absence of ten years a person shall be presumed dead for the purpose of opening his succession; but if he disappeared after the age of 75 a absence of 5 years will be sufficient. The death is considered to have taken place on the last day of the period of absence required by law. The following are presumed dead for all purposes:
A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years. 1.
In this instance the presumptive date of death is fixed on the very day of the occurrence of the event which may have occasioned death. Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. (n) Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n) Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) The will of a testator, expressed in the form required by law and exercised within legal limits, must be recognized as the supreme law in succession. However the provisions of law on intestate succession will take effect, even in the presence of a will, if such will does not validly dispose of all the property of the deceased. No contract may be entered into upon future inheritance, except in cases expressly authorized by law. An exceptional case is a marriage settlement stipulating conditions for the conjugal partnership with respect to present and future property. It constitutes not only an exception to Art. 1347 but a real case of contractual succession. Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n) Since ownership is vested in the heir from the moment of the death of the predecessor, necessarily all accessions subsequent to that moment must belong to such heir.
Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n) The term heir includes all relatives who succeed by virtue of the laws of intestate succession as well as all persons whether relatives or not who take what might be called the residuary estate under a will. In a sense he is the continuation of the personality of the deceased. A legatee is one who is given a gift or personal property by will and a devisee is one to whom real property is given by will. Compulsory heirs cannot be deprived by the testator except by a valid disinheritance. Voluntary or testamentary heirs are those who are instituted by the testator in his will to succeed to the inheritance or the portion thereof of which the testator can freely dispose. Legal or intestate heirs are those who succeed to the estate of a decedent who dies without a valid will, or to portion of the estate not disposed of by will. CHAPTER 2 TESTAMENTARY SUCCESSION SECTION 1. - Wills SUBSECTION 1. - Wills in General Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) The present civil code seems to limit the concept of a will to a disposition of property to take effect upon and after death. It is only when the will disposes of property either directly or indirectly that it has to be probated. When there is no disposition of property, it is submitted that although the instrument may be considered as a will, it does not have to be probated; its disposition which are provided by law such as acknowledgement of a natural child or order that the patria potestas of the widow shall continue after her remarriage, can be given effect even without probating the will. The law permits a testator to disinherit a compulsory heir for any causes p0rovided by law, and the disinheritance is expressly required to be made in a will. A valid disinheritance is in effect a disposition of the property of the testator in favor of those
who would succeed in the absence of the disinherited heir. Unless the will is probated, the disinheritance cannot be given effect. The characteristics of a will are: 1. 2. 3. 4. 5. 6. 7. 8.
It is a purely personal act. It is a free act without violence, fraud or deceit It disposes of property It is essentially revocable. It is formally executed. The testator has testamentary capacity It is a unilateral act It is an act mortis causa.
A will is not necessarily an act of liberality or generosity. The inheritance may be so burdened with legacies that all benefit to the heir is nullified. Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) The testator cannot substitute the mind or the will of another for his own. However the mere mechanical act of writing may be done by a third person. Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) The testator has expressed his will by leaving specific property or sums of mo9ney in general to specified classes or causes. The third person entrusted to make the distribution to the extent of choosing the persons or institutions to which the property or money will be given or applied does not make any disposition but simply carries out the details in the execution of the testamentary disposition made by the testator himself in the will. Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.(671a)
Art. 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) 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) The intention of the testator is the controlling factor in the juridical relations arising from the will. The presumption is that the testator intended a lawful rather than an unlawful thing. 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) There are two kinds of ambiguities in a will: (1) patent or extrinsic ambiguity and 92) latent or intrinsic ambiguity. A patent or extrinsic ambiguity is one which appears upon the face of the instrument. A latent or intrinsic ambiguity is one which cannot be seen from a mere perusal or reading of the will, but which appears only upon consideration of extrinsic circumstances. Our code however does not distinguish between both in so far as admissibility of parol or extrinsic evidence is concerned to aid testamentary interpretation. Under our code, therefore, extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of the making of the will, for the purpose of explaining or resolving a patent ambiguity. The extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator; by implication, written declarations made by the testator outside the will are admissible. 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)
A distinction in interpretation is often made between a will drafted by skilled testamentary draftsmen, such as lawyers, and a will prepared by persons who have no knowledge of the law. Words found in the first are to be construed with some strictness on their accepted technical meaning while words in the second kind of wills are to be interpreted liberally with reference to their popular meaning. Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) Where a will has been executed, the reasonable and natural presumption is that the testator intends to dispose of all his property. 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) 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) This article states a principle that is contrary to principles expressed in other provisions of this Code. The institution should entitle Mr. X to all the transmissible property of the testator at the time of his death, not at the time of the making of the will. The most that can be done to save the law from being inconsistent is to construe the present article as referring only to devises and legacies. However even in this light the article conflicts with Art. 930. 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) When the testator does not state the extent of the interest that he gives to the legatee or devcisee in the property transmitted, it is understood that his whole interest passes, no more no less. 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) If the will or any gift in it was invalid when the testator died, no subsequent statute can cure the defect. If the will was valid or any gift in it took effect on the death, the rights of
the devisee and legatee cannot be divested by any law passed afterwards, changing the requirements for wills or gifts. Before death of the testator, the validity of the execution of the will is controlled by the statute in force at the time of execution, and a statute enacted subsequent to the execution and prior to the death of the testator changing the rules respecting the form of the instrument, the capacity of the testator and the like has no retrospective effect. Succession shall be regulated by the national law of the person whose succession is under consideration whatever may be the nature of the property and regardless of the country wherein said property may be found. The law may be changed after the will has already been made. The provisions of the will may be intrinsically valid under the law when it was executed; but it may be contrary to the law at the time of the testator’s death. In such a case the law at the time of the testator’s death will apply. It is the law at the time when the succession opens which must determine the intrinsic validity of the provisions of the will because it is at this time that the rights are transmitted. SUBSECTION 2. - Testamentary Capacity and Intent Art. 796. All persons who are not expressly prohibited by law may make a will. (662) The law presumes capacity to make a will. Persons means only natural persons. Even when a spendthrift or a prodigal is under guardianship, he can make a will, there being no disqualification provided by law. A person under civil interdiction can make a will; he is disqualified for dispositions inter vivos only not mortis causa. Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) The last day of the required year should have passed before the person can be considered as having the requisite age for making a will. The required age is reached at the commencement if the day preceding the anniversary of the birthday, that is, it is sufficient that the last day of the eighteenth year shall have commenced, The law does not recognize fractions of a day. 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)
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) The decisive question is whether the instrument propounded is the spontaneous act of the person understanding its nature and consequences. Mere weakness of the mind or partial imbecility from disease of body or from age by itself does not render a person incapable of making a will. The elements of testamentary capacity are: 1. The testator must have the mental capacity to understand nature and effect of the act 2. He must have sufficient recollection of his properties 3. He must be able to remember the natural objects of his bounty 4. He must have sufficient mental ability to make a disposition of his property among the objects of his bounty according to some plan which he as formed in his mind. Objects of testator’s bounty means near relations of the testator, those who are the natural objects of his bounty. Cousins of second and third degree of propinquity are not included in the term. Sufficient recollection does not mean that he must have such information in his mind at one time. To constitute senile dementia, there must be such failure of the mind as to deprive the testator of intelligent action. While senile dementia or imbecility from old age does not necessarily exclude possibility of testamentary capacity, and although it begins gradually, yet it is well-nigh stripped of its functions. To amount to insane delusions, they must be beliefs such as no rational man placing himself in the position of the testator, either would or could entertain and this cannot be said of any belief which connects itself of the fact however flimsy the connection may be. Not every insane delusion will render one incapable of making a will. A testator may have delusions regarding matters which do not affect or concern his testamentary act and which have no influence upon the disposition he makes. But the testamentary disposition will be void when the delusion touches the subject matter of the will, when it pertains to the property, the beneficiaries or those who would succeed to the property if the will were not made. A belief in spiritualism, Christian Science, or any other unusual religious doctrine is not proof of insanity unless his mind is so controlled by his peculiar views as to prevent the exercise of a rational judgment relative to the disposition of property. The modern rule is that neither blindness, nor deafness and dumbness nor all of them combined, will alone incapacitate a person to perform a testamentary act. The existence of strong passions and prejudices on the part of the testator is not inconsistent with testamentary
capacity. But where the prejudice borders upon an insane delusion or the testator at the time of the making of the will labprs under extraordinary excitement or stress, he may be rendered devoid of the powers to realize the natural objects of his bounty, the extent of his property and the nature of the business at hand, under which he would be incapacitated to make a will. A person through a superabundance of alcohol or drugs may become so mentally obscured that he is for the time being comparable to a madman. In such a condition he cannot make a valid will. However so long as there has not been a destruction of that mentality which the law requires for the making of a will, it cannot be said that the fact of addiction to alcohol or drugs incapacitates him from making a will. The soundness of mind of the testator must be determined as of the time of the execution of the will. Such will cannot be validated by lapse of time or by ratification although it may be republished by the testator after he has recovered reason. Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n) If the proof of insanity consists in the decree or judgment of a competent court declaring him non compos mentis and placing him under guardianship, the presumption is and continuous until there be a decree or judgment by a competent court declaring his restoration that he is incompetent to make a valid will. But the presumption may be rebutted by proof showing his sanity although the guardianship be unrepealed. The presumption of insanity however does not arise when the malady under which the testator labored was in its nature either accidental or temporary, nor is it raised by sole fact that the testator committed suicide after making the will. The opinion of nonprofessional witnesses as ti sanity or insanity is generally permitted to be given whether the witnesses attested to the will or not. Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community
property. (n) SUBSECTION 3. - Forms of Wills Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Our law permits the execution of two kinds of wills: (1) the ordinary or attested will and (2) the holographic or handwritten will. Our law does not recognize nuncupative wills which is one that is not written but orally declared by the testator in his last illness in contemplation of death and before a sufficient number of witnesses. It is immaterial who performs the mechanical act of writing the will so long as the testator signs it or somebody signs his name in his presence. The ordinary will may be written, printed engraved or lithographed. When a will is executed in a certain province or locality in the dialect currently used in such locality, there arises a presumption that the testator knew the dialect so used in the absence of contrary evidence. The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator. It is not part of the testamentary disposition. The language used in the attestation clause does not even have to be known to the witnesses; however it should be translated to them. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) Ordinary or attested wills must comply with the following requirements: 1. It must be signed at the end thereof by the testator himself or by the testator’s name written by another person in his presence and by his express direction. 2. It must be attested and subscribed by three or more credible witnesses in the presence of the testator and each other. 3. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. 4. Each and every page must be signed by the testator or the person requested by him to write his name, and by the instrumental witnesses in the presence of each other on the left margin. 5. It must contain an attestation clause. 6. It must be acknowledged before a notary public by the testator and the witnesses. The will that is not signed by the testator or by some person in his presence and at his direction cannot be allowed to probate. The material thing is that the testator made the mark to authenticate the writing as his will and whatever he puts on it for that purpose will suffice. Even when the name written by the testator is that of another or a fictitious person instead of his own, it will be sufficient. The law expressly requires the will to be subscribed at the end thereof by the testator or by his name written by another person in his presence and by his express direction. An instrument in the form of a will cannot be probated if it is not assigned at the end. Where the signature is followed by dispositive provisions, even the portion of the instrument preceding the signature cannot be probated because the instrument must be considered as a whole. The signature is considered to be at the end of the will when it appears below the disposing provisions even if it is in the testimonium clause, and there are some nondispositive writings below or following it. However non-dispositive provisions intervening between the dispositive clauses and the signature do not affect the validity of the instrument. But the will cannot be considered as signed at the end, where the dispositive clauses, intended to be part of the will follow the signature. In the absence of evidence that the testator requested the third person to sign the will for the former, the signing of the third person invalidates the will. Mere knowledge by the testator that another is signing and acquiescing it there being no previous express direction is not enough, and if the previous direction be given by gestures, they must be as unambiguous as words. However, when the evidence does not show that the signature was made at his express request, the subsequent acknowledgement of the
testament of the will as to his own will be sufficient signing and it will be presumed to have been made at his direction. But if the testator directs another person to sign for him and he intends to affix his mark in completion of the signature, the will is not properly signed until such mark has been made. The fact that a third person was directed to sign the name of the testator need not appear in the will itself but may be established by extrinsic evidence. Such fact however should appear in the attestation clause which is required to state the fact that the testator signed the will and every page thereof or caused some other person to write his name under his express direction. The law does not require that the name of the person who writes the testator’s name should appear on the will, it is enough that the testator’s name has been written. On the other hand if the name of the testator is not written as a signature to the will the testament is invalid notwithstanding the fact that the third person’s name appears on the will with the authorization of the testator. The third person should write the testator’s name somewhere between the dispositive provisions of the will and the attestation clause. If the name appears only in the attestation clause, and not before it, the will is not considered signed with the testator’s name. But if it is written just after the dispositive portions and before the signature of the witnesses and the attestation clause, it is sufficient although not written as a distinct signature but merely a part of recital. While the first paragraph of the article does not expressly require that the testator sign the will in the presence of the witnesses, the third paragraph does require the fact to appear in the attestation clause, and it has always been held that such required signing by the testator in the presence of the witnesses is essential to the due execution of the will. Our law thus expressly requires signing in the presence of the witnesses, but does not authorize mere acknowledgement of the signature. However a liberal interpretation should be allowed when he merely produces to them the will already signed and acknowledges before them that the signature appearing thereon is his. Attestation is the act of the senses, subscription is the act of the hand; one is mental, the other mechanical. The attesting witnesses may sign at the left hand margin of the pages of a will instead of at the end of the will. Attestation and subscription has a three-fold purpose: 1. Identification of the instrument 2. The protection of the testator from fraud or deception so that he may freely and voluntarily express his testamentary intent 3. The ascertainment of the testamentary capacity of the testator.
It is now well settled that the witnesses need not know the contents of the will, unless the statute expressly requires it to be read in the hearing of the witnesses. It is presumed that a witness has the qualifications prescribed by law unless the contrary is established. But if the required number of attesting witnesses are competent, the fact that an additional witness who was incompetent also attested the will, cannot impair its validity. The same witnesses who sign on the left margin of each page of the will presented by the testator to them as his will must be the very ones who should sign the attestation clause. Publication is the declaration of the testator to the witnesses that the instrument is his will. Publication is not necessary however the witnesses cannot attest to the signing of an instrument as a will unless they know that it is one. The statue is satisfied by the witness making marks or writing his initials or even a description of himself. Our law expressly requires as a qualification to be a witness to a will that a person must be able to read and write. But so long as the witness is able to write, he does not have to sign in his full name; he may sign by mark or symbol. The general rule has been that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the attesting witnesses, and that if the signatures of the latter precede the signing by the testator there is no proper attestation, and the will is void, for until the testator has signed there is no will and nothing to attest. In the absence of proof it is presumed that the testator signed first. The witnesses are required to sign in the presence of the testator and each other. It is not sufficient if he is physically present, but he must know what is being done. The act of signing must take place within the testator’s range of vision so that he may readily see what they are doing. If the signature is not made in the same room occupied by the testator the presumption is that the will was not signed in his presence. Nevertheless seeing the actual signature being made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to do so, may see the signatures placed upon the will. A blind man may know the presence of another through the sense of touch and hearing If the mind of the blind man is unaffected and he is sensible of what is being done, when witnesses subscribe his will in the same room or within reasonable close proximity and within his hearing, they subscribe in his presence. The law expressly refers to “page” and not a sheet, leaf or folio. A sheet has two pages the front and reverse. Every page used in the will should be signed on the left margin. The signature of the testator alone on all pages will not be enough. The law expressly requires also the signatures of the witnesses. However as liberally applied by the Court,
where the will consisted only of two pages the first page containing all the testamentary dispositions signed at the bottom by the testatrix and the three witnesses, and the second page containing only the attestation clause signed by the witnesses without signature of the testatrix. Neither page was signed by the testatrix and the witnesses on the left margin yet the Court admitted it. It said that it a signature on the bottom and a signature on the left margin would be redundant. If every page has been signed by the testator and the witnesses, it is immaterial on what part of the page the signatures have been placed. The pages of the will must be numbered correlatively in letters. The purpose of this is to afford a means of determining whether any sheet or page of the will has been removed. Lack of paging on the attestation sheet does not take anything from the validity of the will, provided that the true number of pages is made clear in the attestation clause. Any other form of writing correlative is sufficient provided the numbering used indicates the succession of pages. An attestation clause is a memorandum of facts attending the execution of the will and is that part of the instrument wherein the witnesses certify that the instrument has been executed before them and the manner of its execution. It need be signed only by the witnesses and not by the testator. Where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation stating the facts required by law to be set forth in an attestation clause, and the penultimate paragraph of the will stated the number of pages used, it was held that there was a sufficient attestation clause, even if such attestation was in the first person and signed by the testator if it was likewise signed by the three instrumental witnesses. The attestation clause must state: 1. The number of pages used. 2. That the testator signed the will and every page thereof or caused some other person to write his name under his express direction and in his presence 3. That the signing by the testator or by the person designated by him was in the presence of the witnesses 4. That the witnesses signed the will and all the pages thereof in the presence of the testator and of each other. It is not required that the attestation clause must state the names of the attesting witnesses. If such number of pages or sheets while not stated in the attestation clause itself appears at the end of the will proper, so that no proof aliunde of the number of pages or sheets of the will is necessary, then there can be no doubt that it complies with the intention of the law. The fact that the testator signed the will in the presence of instrumental witnesses must appear in the attestation clause itself. It is not sufficient that the testator
at the end of the will and before his signature, states that he signs the will in the presence of the witnesses. This defect is not cured by proof aliunde or even a judicial finding. If the testator did not personally sign the will but requested another person to write his name thereon, the attestation clause must state this fact. The omission of this statement in the attestation clause will invalidate the will. In Sano it was held that the attestation clause must contain the statement that the witnesses signed in the presence of each other. Non-compliance annuls the will. There is no liberal interpretation. However in the later cases the trend has been towards liberal interpretation where the court allowed a clause omitting that the witnesses signed in the presence of each other. Except when the testator is blind, deaf or deaf-mute, the law does not require that the will be read by him or to him. It is indispensable however that he should know its contents at the time of execution. The fact that the will was read to the testator does not have to appear I the attestation clause. It can be proved by extrinsic evidence. Date is not an essential part. 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) This applies only to ordinary and not attested wills. Failure to affix a documentary stamp tax is not a fatal defect. The signing of the will by the testator and the witnesses and the acknowledgement by the notary do not have to be a single act. It is important however that testamentary capacity must exist at the time of acknowledgment. Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) 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) This should also be applied to an illiterate testator. 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) Where it appears from the context of an attestation clause that certain words have been inadvertently omitted, the court may supply the omission. It is sufficient if from the
language employed it can be reasonably deduced that the attestation clause fulfills what the law expects it to be. The whole language of the clause must be taken together. Omissions which can be supplied by an examination of the will itself without resorting to extrinsic evidence will not be fatal. Omissions which cannot be supplied except by presenting evidence aliunde will invalidate the attestation clause. The rule of substantial compliance has been applied to the extent that the attestation clause need not be an independent portion of the will. It may be contained in the body of the will expressed in the first person as recital of the testator provided that it’s also signed by three witnesses. 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) Advantages are (1) simple and easy (2) induces foreigners to set down their last wishes (3) secrecy. Disadvantages are (1) no guaranty of capacity (2) no protection against violence or fraud (3) prone to faulty expressions (4) easily falsified (5) easily concealed. There being no prohibition in the law, a blind person can make such a will if he has the testamentary capacity. They may be in any form but the intent to dispose mortis causa must appear clearly in the context. A letter which is not for the sole purpose of manifesting the last will cannot be considered a holographic will. What if there are words written by another? If insertion was made after the execution of the will but without the consent of the testator, such insertion is considered not written. If insertion was made after the execution of the will but with the consent of the testator, such insertion becomes part of the will and becomes void. If insertion was made by a third person contemporaneously, it is void. The day and month may be indicated by implication so long as the designation leaves no room of doubt as to the exact date. A simply involuntary mistake as to the correct date when there are other statements in the will which will fix the date with certainty does not invalidate the will. The intentional statement of a false date is equivalent to the inexistence of a date and nullifies the will. The proof of falsity however must be intrinsic and never by facts outside the document. A date written subsequent to the writing of the will which is the date on which the will was actually written is not a false date. It only indicates that the testator wanted to deliberate further before consolidating the will. One making a holographic will, incomplete for want of date, may subsequently complete it by dating it properly. The signature is his signature written in a usual and habitual manner. It is not necessary that the full name be written as long as the habitual signature does not contain the full
name. However it cannot be replaced by a symbol or a seal. The signature must be at the end of the will. There must be a correlation between the signing and the date. The date must indicate the day on which the will was perfected and a date placed long after the signing must be considered as a false date. 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) The holographic will may not be proved by mere testimony, it must be presented. Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n) If there are insertions, cancellations and alterations which are not authenticated by signature, they are considered not made but the will is not invalidated. Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)
These only refer to the formal validity of the will. National law of the deceased still governs the intrinsic validity. 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) It is prohibited because (1) will is purely personal and unilateral (2) contrary to revocable character (3) exposure to undue influence. Civil code does not prohibit mutual or reciprocal wills provided that they are not conjointly made. The law does not invalidate two distinct wills independent of each other which are written on the same sheet of paper but on different sides or are separated by a line. 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) SUBSECTION 4. - Witnesses to Wills 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) This refers only to ordinary wills. Holographic wills need not be witnessed. 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) Domicile in the Philippines is only required for wills executed in the Philippines. No particular citizenship is required. Credibility means one who is qualified to testify in court and not disqualified by natural, moral or legal cause. The notary public acknowledging the will cannot be an instrumental witness. 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) This article does not disqualify a devisee or legatee or the spouse, parent or child of the devisee or legatee from becoming a witness to the will. If he is credible and not disqualified, he is a competent witness but the devise or legacy in his favor or his spouse, parent or child will be void. Even an instituted heir, or his spouse, parent or child is disqualified. 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) SUBSECTION 5. - 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) If the subsequent instrument explains the original will or alters or adds to it, then it is a codicil. If the later instrument makes dispositions independent of those in the original will, then it is a new will not a codicil. 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) Three things must appear on the face of the will: 1. Distinct reference to such writing so explicit as to identify it beyond doubt 2. Reference must indicate that writing has already been made 3. To give it effect must be the wish of the testator on the face of the will Two things must be shown by extrinsic proof: 1. It is the very writing referred to in the will 2. It was in fact made before the will was executed.
SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions 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) Revocation is by the act of the testator while nullity proceeds from law. Revocation presupposes a valid act while nullity is inherent in the testament be it an intrinsic or extrinsic defect. Revocation takes place during the lifetime of the testator while nullity is invoked after his death by his heirs. The testator cannot renounce the right to revoke while nullity can be disregarded by the heirs through voluntary compliance. Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n) Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n) The following are some cases of revocation by implication of law: 1. Acts of unworthiness by an heir, devisee or legatee. 2. Transformation, alienation or loss of the thing given as a devise or legacy subsequent to the execution of the will. 3. Judicial demand by the testator of a credit which has been given as a legacy 4. Sale of property given as devise or legacy for payment of testator’s death. A subsequent will containing a clause revoking a previous will should possess all the requisites of a will whether it be ordinary or holographic and should be probated in order that the revocatory clause may produce the effect of revoking the previous will. Revocation may be made conditional upon a future event. When several wills wholly inconsistent or containing express revocation clauses are offered for probate, parol evidence is competent to show which was in fact last executed whether they are dated or not. But if of the same date or not dated, and there is nothing to show which was last, all fail for uncertainty.
The testator must at the time of performing it be in possession of his faculties and capable of making a will. Important to note that the mental process or intent to revoke must concur with the physical fact or actual destruction of the will. However when it is the devisee or legatee who prevents the revocation of the will by use of threats, fraud or violence, the will is revoked as to him by implication on the ground of unworthiness. The change of the testator’s mind before completing the act of destruction prevents the revocation of the will. If the complete destruction of the will is prevented due to the interference of some other person and not to a change of intention on the part of the testator, the will is revoked. The act of destruction is considered complete and the intention to revoke carried out, if the will bears on its face any evidence of the act. But a slight destruction in itself is not sufficient to work revocation unless there is other evidence to show intention to revoke. In short there must always be evidence of intention to revoke. A line drawn over the testator’s signature is a sufficient cancellation of the whole will. The cancellation need not render the will illegibile. Cancellation leaves the words legible while obliteration renders them illegible. However both of these are synonymous. Unless by statute a different rule is required, a will may be revoked in part by cancelling or obliterating a portion thereof leaving the unobliterated parts in force. If that which is essential to the validity of the whole is cancelled or obliterated animo revocandi, the whole will is revoked. If only a single clause is so cancelled and obliterated, then that clause only is revoked. Tolentino says that unauthorized destruction might be ratified. A carbon copy of the original will should have the same effects as the first copy since they’re duplicate originals. In absence of proof to contrary, mutilations, obliterations and interlineations are presumed to have been made after the execution of the will and for the purpose of revoking it. When a will cannot be found by proper and diligent search after the death of the testator, there arises a presumption that he destroyed it for the purpose of revoking it rather than that it has been lost or destroyed by another. However if the will be shown not to have been in the hands of the testator, the presumption that it was destroyed by him does not arise and the burden of proof is upon the party asserting the revocation. Art. 831. 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. (n) The revocation of one will by another may be express or implied, partial or total. But a will is not revoked by a subsequent instrument which neither revokes it in express terms nor by implication and in such case the wills not inconsistent with each other must be construed together, and all of their provisions carried into effect. Art. 832. 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 renunciation. (740a)
If for any reason the new will intended to be made a substitute is inoperative, the revocation fails and the original will remain in full force. This is the doctrine of defendant relative revocation. The present article contemplated a case where a subsequent will revokes a prior one and the validity of the later will is established but the provisions cannot be carried out because of the incapacity of or renunciation by the beneficiaries. The revocation is effective because of the clear intent of the testator to revoke contained in a valid will. The validity of the new will prevents the operation of the principle of dependent relative revocation even if the new dispositions cannot be carried out. Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) If the act of revocation is induced by a belief which turns out to be false, there is no revocation. The mistaken fact must however appear upon the face of the instrument. Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714) SUBSECTION 7. - Republication and Revival of Wills Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n) Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) The two above paragraphs actually conflict. In order to reconcile them, Art. 836 must be considered as the general rule and Art. 835 must be regarded as the exception. Reproduction of the codicil is required only when the original will is void as to its form. In all other cases, reference to the original will suffice to republish it through the codicil. Art. 837. 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. (739a) When there is merely inconsistency between two wills, but no revoking clause, it has been held in common law that upon destruction of the second will the first was revived automatically regardless of the intention of the testator provided the first was undestroyed. The article only applies not express revocation and not implied revocation. SUBSECTION 8. - Allowance and Disallowance of Wills
Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n) Probate is a civil proceeding to establish the validity of a will. During the probate the ownership of property cannot be discussed. Revocation may be partial but disallowance is always total. There are two kinds of probate proceedings, ante mortem probate made during the lifetime of the testator and probate made after the death of the testator. The reason for the ante mortem probate us to lessen the number of contests and an opportunity for the testator to correct the mistakes. A CFI acquires jurisdiction to probate a will when: 1. Person has executed a will 2. If a Philippine resident, that he died or resides in the province of the court. 3. If not a resident that he has estate in the province of the court 4. The court is in possession of the will. Resides means actual or physical place of abode of the deceased as distinguished from legal residence or domicile. However this is not a purpose of jurisdiction only of venue. A petition for the allowance or probate of a will must show: 1. Fact of death with time and place 2. Existence of a will and a copy 3. Will executed according to law 4. Executor consents to such or renounces becoming an executor 5. Name, age and residences of heirs, devisees and legatees. 6. Value and character of the estate 7. Name of person appointed as executor 8. If will not delivered to court, the name of the custodian. There’s a publication requirement in a newspaper of general circulation or the official gazette. Only persons interested in the allowance of the will should be allowed to intervene in the probate. The following must be proved at the hearing of the probate of the will 1. Fact of death
2. Publication of notice of hearing 3. Execution of will with formalities of law. No will shall be proved as a lot or destroyed will unless the execution and validity of the same be established and the will is proved to have been in existence at the time of the death of the testator or is shown to have been fraudulently or accidentally destroyed in his lifetime of the testator without his knowledge nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions must be distinctly stated and certified by the judge. If the will is uncontested the court may grant the will on the testimony of one of the subscribing witnesses only testifying that the will was executed as required by law/ If it is contested, all subscribing witnesses present in the Philippine snot insane must be produced and examined, and the death, absence, insanity or any of them must be satisfactorily shown to the court. However the validity of the will is no wise depends upon the united support of the will by all the witnesses. A will may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do not unite with the others. It is sufficient if the court is satisfied from all the proof that the will was executed and attested in the manner required by law. The rule requiring the production of the attesting witnesses is not absolute. Exceptions include death, cannot be summoned, reputation for truth has been questioned, or hostility. In such a case the will may e probated without the testimony of the witnesses based on other proofs to show that it was duly executed. The matter of due execution of the will and capacity of the testator are res judicata. It is one in rem. Remember that the fact of the will being executed with formalities of law and tge condition of the testator is the only purpose of the probate proceedings. The probate does not look into the intrinsic validity. However the trial court may pass upon the will’s instrinsic validity even before its formal validity has been established. The status and rights of the heirs are not within the scope of the proceedings, however if the issue raised is related to the probate, it may validly resolve the issue of heirship with finality in the absence of appeal. Title to property cannot be litigated in the probate court. However it may resolve whether property should be included in the inventory in a provisional character. The probate of a will is not a bar to the presentation and probate of a codicil. Failure to oppose the will does not prevent one from opposing a codicil. The probate of a will is not a bar to the probate of a will subsequently discovered provided that the latter is posterior to the probated one, or if it is earlier that the two wills can stand together. A grant of letters of administration in intestate proceedings is not conclusive adjudication of intestacy so as to bar the probate of a will subsequently discovered. A will void as to its form and therefore not probated does not transmit property but it can give rise to natural obligations.
Undue influence has been defined as 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. It must destroy the free agency of the testator and his independent discretion. Mere general and reasonable influence is not sufficient to invalidate a will. If undue influence affects the whole will it is void. But if it affects only a part of it the remainder must be allowed. A wil procured by undue influence does not become valid upon subsequent approval by the testator. The converse is also true. In the law of contracts, fraud merely makes the contract voidable but in the law of wills fraud renders the will void ab initio. There is no implied confirmation or ratification of void wills. 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) SECTION 2. - Institution of Heir 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) An heir is now in the same position as the legatee in the succession. Hence the provisions referring to institution on heirs should also be applicable to the designation of legatees and devisees. Remember it cannot affect the portion known as the legitime. 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 person can die partly testate and partly intestate and a will is not invalidated by the mere omission of an heir. 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) Compulsory heirs are those who succeed by force of law to a certain portion of the estate irrespective of the will of the testator except in those cases expressly provided by law. According to the Public Land Act, when the applicant shall die before the issuance of the patent or grant of the land, or during the life of the lease, or while the applicant still has pending obligations with the government, the rights and obligations shall pass to the heirs of law. Hence, the applicant or grantees do not have the right to dispose of the property. 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) The evidence of the intention of the testator is not limited by law to the contents of the will itself. Evidence aliunde may be presented to show the error and prove with certainty the intention of the testator. The phrase in any other manner is broad enough to cover all kinds of evidence. Extrinsic evidence that the testator had more affection for one than the other is inadmissible. 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) It is the absolute uncertainty of the identity of the heir that nullifies the disposition. This provision rests upon the assumption that such person actually exists and have the capacity to succeed. As long as the identity of the heir is determined, even if he is not known to the testator the institution will be valid. The determinate event or circumstance, sufficient to indicate with certainty the person whom the testator wants to favor, must appear in the will itself. It cannot be show by extrinsic evidence either oral or documentary. The person may be determined not only by past or present events and conditions or circumstances but also by future ones. All that is necessary is that the
event or circumstance appear in the will itself and the person must exist and have capacity to succeed at the time of the death of the testator. . Where the determination of the heir is delegated by the testator to another, it is void under Art. 785. The institution will be void if the instituted heir does not have the capacity to succeed at the time of the death of the testator. Art. 1025 requires that in order to be capacitated to inherit the heir, devisee or legatee must be living when succession opens. When the testator institutes a definite class or group of persons he may entrust to a third person the distribution of the property or oney he leaves to such class and also the designation of the persons within the class or group to whom the property is to be given. Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) This article should be understood as referring to heirs who are of the same class or juridical condition and to the portion of inheritance of which the testator can freely dispose. For as between two heirs one of whom is a compulsory heit and the other a voluntary heir without designation of shares it is not legally possible to give them erqual shares in the entire inheritance. The legitime of the former must first be separated and allotted to him, the remainder of the free portion shall be divided equally between the two. Cases may arise when there is no designation of shares but the testator provided specific things be given to each heir and such things form only a portion of the estate. A institutes X and Y as his sole heirs. Then in a separate clause he states that his house valued at 10,000 goes to X and his land valued at 20,000 goes to Y. There are other properties. The institution must be considered as without designation of shares and the heirs divide the estate equally, the value of the specific things assigned to each being included in the amount that should pertain to each. 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) 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) It must be understood that the rule stated in this article cannot prevail as against a contrary intention of the testator.
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) Before the institution of heirs may be annulled by reasonof a false cause the following requisites must concur (1) the cause for the institution must be stated in the will 92) the cause must be shown to be false (3) it must appear from the face of the will that the testator would have not made such institution if he had known the falsity of the cause. What is the effect of the statement of a cause contrary to law? Is it valid or void? A mere statement of cause contrary to law does not invalidate the institution so long as it does not appear in the will that such illeghal cause is the only motivation factor of the institution. 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) This article is inaccurate because even if the institution is limited to an aliquot part of the estate the remainder will not always pass in accordance with the law of intestacy, such as when the balance is disposed by way of legacies or devises. 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) 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)
Preterition means the total omission of a compulsory heir from the inheritance. It consists of the silence of the testator regarding a compulsory heir without expressly disinheriting him. In inheritance there is some legal cause but in preterition the law presumes that there has been merely an oversight or mistake. Incase of valid disinheritance the compulsory heir is totally excluded from inheritance and if disinheritance is not lawfully made the compulsory heir is merely restored to his legatine. But in preterition in the direct line the omitted heir gets not only his legitime but also the share in the free portion not disposed of by way of legacies and devises. The requisites are (1) that there is a total omission (2) person omitted is a compulsory heir in direct line (3) compulsory heir omitted survived the testator. Most writers hold that if the heir has received anything from the testat6or even by way of donation inter vivos there is no priterition but a case of incomplete legitime under Art. 906. It will be inferred that the omission of heirs born between the execution of the will and the moment of testator’s death will also constitute preterion if such heirs be living in the latter moment. “Heirs of Direct Line” include illegitimate parents and illegitimate children whether natural or otherwise. If the compulsory heir who has been preterited dies before the testator it is the same as if there has been no preterition. The right of representation however should not be lost sight of. If the preterited heir has legitimate children and descendants entitled to represent him, and they have also left been out in the will the institution shall be annulled just the same even if the preterited heir died before the testator. If the testator disposes of the free portion only and leaves the legitimes untouched by the will the act is vaid and there is no preterition even if the compulsory heirs are not mentioned. But if the testator institutes an heir to the estate including the legitime of a compulsory heir at rthe same time omitting the compulsory heir, then there is preterition but he effect will depend upon the character of the compulsory heir omitted. If he is in the direct line the institution is totally annulled saving only legacies and devisees which are not inofficious. If he iis not in the direct line nly his legitime is given to him and the institution is annulled only to that extent. The effects of preterition theredore are different from ineffective disinheritance. I n the latter tyje institution of heirs is annulled only to the extent that it prejudices the legitime of the compulsory heir improperly disinherited while in the former the institution is annulled in its entirety including the affected free part unless this has been disposed of as devises and legacies. The surviving spouse is not a compulsory heir in the direct line hence the article does not apply. However the legitime of the spouse is protected under Art. 842. Hence the omission of a spouse does not entirely annul the institution of heir. It only results in the reduction of the rights of the instituted heir to the extent necessary to the spouse’ legitime.