WILLS AND SUCCESSION

1. What is the nature of a persons future inheritance? Following Article 777, in relation to Article 1347 of the Civil Code, pending the condition upon which an heir is transmitted his rights, the inheritance vested upon him is merely an expectancy; an inchoate right. Hence, a sale of such future inheritance would be void for lack of an object in the contract. Conversely, from the moment of the decedents death, the heirs right to the succession loses its identity as future inheritance, and thus can now be subject to disposition. 2. What law governs the intrinsic and extrinsic validity of wills? The intrinsic validity of a will, along with the order of succession and the amount of successional rights are governed by the national law of a decedent, following Article 15 of the Civil Code. On the other hand, the same Code provides that the extrinsic validity of the will depends upon the observance of the law in force at the time it was made, following Article 795 in relation to Articles 815-819. 3. May an heir accept or repudiate his share in the inheritance without restriction? Following Article 6, in relation to Article 1052 of the Civil Code, a heir who repudiates his share to the prejudice of his own creditors shall give the latter the right to petition to the court that they accept the inheritance in the name of the heir, to the extent sufficient to cover their credit. This is so because Article 6 provides that a right cannot be waived if the same shall prejudice the interest of a third person with a right recognized by the law. 4. Suppose that after the death of the testator, the only copy of his holographic will which can be found is a photostatic or xerox copy, or a mimeographic or carbon copy, may the will be admitted to probate? Yes, the will may still be admitted to probate. The Supreme Court ruled that a photostatic or xerox copy of the lost or destroyed holographic will may be admitted to probate because

then the authenticity of the handwriting of the deceased can be determined or compared by the probate court with the standard writings of the testator (Rodelas vs. Aranza, 119 SCRA 16). In an earlier case, the Court was of the opinion that Perhaps it may be proved by a photographic or photostatic copy, or even a mimeographed or carbon copy; or other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court (Gan vs. Yap, 104 Phil. 509). 5. During the probate proceedings of the will of J, it was proved that while the testator, J, and two of the instrumental witnesses, P and L, were signing the will and all of the pages thereof in the sala of Js house, the third witness, D, was resting in an adjoining room which was separated from the sala by a curtain. It is now contended by the oppositiors of the will that since J, P and L did not sign the will and all of the pages thereof in the presence of D, the will cannot be admitted to probate. How will decide the case? Reasons. The will of J cannot be admitted to probate. The Supreme Court, in several cases, held that the true test of presence of the testator and the witness in the execution of wills is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position in relation to each other at the moment of inscription of each signature (Jaboneta vs Fustilo, 5 Phil 541). It is clear that the curtain separating the adjoining room from the sala impeded the line of vision of D; consequently, it would not have been possible for D to see the actual signing of the will by the others had he chosen to do so. Hence, J, P, and L did not sign the will and all of the pages thereof in the presence of D. There is, therefore, non-compliance with the mandatory requirement of the law.
(Nera vs. Rimando, 18 Phil 450)

6. E executed a 2-page notarial will, leaving all properties to her nephew F. The witnesses to the all signed the left-hand margin of both pages will, but failed to sign at the bottom of

her will the the

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attestation clause. Further, the attestation clause failed to state the number of pages of Es will, and was signed by a notary public. F submitted the will to probate after Es death. This was opposed by G, representing herself as attorney-in-fact for 12 legitimate heirs of E. The probate court admitted the will to probate, stating that the presence of an attestation clause and the left-hand margin signatures on both pages of the will is substantial compliance with the requirements of law. Was the trial court correct in admitting the will to probate? The will must not be admitted to probate. The Supreme Court held, "Failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Substantial compliance with this requirement is present only if the will states elsewhere in it how many pages it is comprised of. The mere signature or subscription of a notary public cannot be considered as an acknowledgement. It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. (Azuela v. CA, G.R. No. 122880,
4/12/2006)

The Supreme Court, in the case of Cruz v. Villasor (G.R. No. L32213, November 26, 1973) that a will, witnessed and attested to by a notary public, who acknowledges the same instrument does not comply with the 3 witness requirement of Article 805 because: (a) the notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will; and (b) the function of a notary public is, among others, to guard against any illegal or immoral arrangement. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud, would be thwarted. However, the witness requirement in Article 805 would be achieved if, in addition to the witness/notary public, 3 more competent witnesses were present to attest to the will.

8. A executed 2 wills; the first on August 17, 1918,

while the second was executed on June 20, 1939. The second will contained an express revocation of the first will, but was, however, denied probate for not being executed in accordance with the formalities prescribed by law. In both instances, only the wife was designated as the sole beneficiary. Since the second will was not admitted to probate, As widow presented the first will for probate in the same court. The presentation was opposed by As nephews and nieces on the grounds that the second will expressly revoked the first, and granting arguendo that the second will did not revoke the first, A still executed a second will with intent to revoke the first. Decide with reasons.

7. May a notary public who acknowledged the will also act as a witness to the same?

The first will made on August 17, 1918 should be admitted to probate. Following the doctrine of dependent relative revocation, a testator who revokes his will, with the present intention of making a new one immediately and as a substitute, with the new one not being made, or failing to take effect for any reason whatsoever, it will be presumed that the testator preferred the old will to intestacy. The revocation, in this case is subject to a suspensive condition; that the testator make a valid new will. Otherwise, revocation will not take place. In this

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case, since the will executed in 1939 was disallowed by the probate court, in the same vein, the revocatory clause in the said will is also void. The will made in 1918, therefore, was never revoked (Vda. De Molo v. Molo, 90 Phil. 37). 9. When can a probate court inquire into the intrinsic validity of the will? If practical considerations demand that the intrinsic validity of the will be passed upon, the probate court may do so before passing upon the extrinsic or formal validity of the will. (Cayetano vs. Leonidas, 129 SCRA 522.) Thus, when the will is on its face appears to be intrinsically void as when there is preterition (Nuguid vs Nuguid, 17 SCRA 449) or illegal dispositions such as those in favor of a concubine (Nepomuceno vs. CA, 139 SCRA 206) or when the parties so agreed (Reyes vs. CA, GR. No. 124099, 10/30/97), the probate court could pass on its intrinsic validity; in such situations, the probate of the will would be an idle ceremony. If the will on its face is intrinsically void, the court should outright meet the issue (Balanay vs. Martinez, 64 SCRA 452).

12. What are some distinctions in the way a surviving spouse inherits by testate and intestate succession? Following testate succession, a surviving spouse inherits:

ESTATE 1/2, as legitime 1/3, as legitime

1/4, as legitime

10.

When is an absolute prohibition to contract marriage deemed an unwritten conditional testamentary disposition?

Following Article 874, a condition to contract a first marriage is considered as not imposed. As to a subsequent marriage, although generally considered as not imposed, if made by (a) spouse; (b) spouses ascendants or (c) spouses descendants, the imposition is valid.

1/8, as legitime
In intestate succession:

Survives with: Alone as a class, unless marriage is in articulo mortis; a. Survives alone and the marriage is in articulo mortis; b. Survives with illegitimate children; a. Survives with 1 legitimate child; b. Survives with legitimate parent/s of testator; c. Survives with illegitimate parents; d. Survives with 1 adopted child; Survives with illegitimate children and legitimate parents. Survives with: Alone as a class; a. Survives with legitimate parents; b. Survives with illegitimate children; c. Survives with siblings of testator; d. Survives with 1 legitimate child;

11. What is a modal institution? Following Rabadilla v. Rabadilla (G.R. No. 113725, June 29, 2000), a modal institution, is where the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.

ESTATE Entire Estate 1/2

WILLS AND SUCCESSION

1/4

e. Survives with 1 adopted child Survives with legitimate ascendants and illegitimate children;

15. What are the requisites for accretion to take place in succession? Article 1015 provides the following requisites: a) Two or more heirs, devisees or legatees called to the same inheritance, devise or legacy, without designation as to parts; b) One of the heirs, devisees or legatees die, repudiate or is incapacitated to accept the inheritance; c) The effect of which is that the share not received shall be incorporated to the share of the co-heir, co-devisee or colegatee. 16. What are the 3 different concepts of collation as used in the Civil Code? a. A fictitious mathematical process of adding the value of the thing donated to the net value of the hereditary estate (Art. 908) b. An act of charging or imputing value of the donation against the legitime of the compulsory heirs to whom the thing was donated (Art. 1081) c. The actual act of restoring to the hereditary estate that part of the donation which is inofficious in order not to impair the legitime of compulsory heirs.

13. X, As paternal great-grandfather, donates a piece of land to A worth P100, 000. Subsequently, Y, As brother dies and leaves another piece of land worth P100,000 to A in his (Ys) will. A died and his mother, M, inherited both properties through intestacy. A. Is there reserva troncal? Yes. The properties were acquired by A from an ascendant and his brother by gratuitous title; one parcel from X, his greatgrandfather, by donation, the other from Y, his brother, by testamentary succession. Since A died with no legitimate issue, M, As ascendant, inherited the properties by operation of law (1/2 by legitime, by intestacy) Therefore, if any relative within the third civil degree survives M, the mother, the properties will be transmitted to such heir. B. Can M, in her lifetime, sell the properties to Z, a stranger? Yes, M can sell the properties to Z but subject to a resolutory condition, i.e. the existence of reservatarios at the time of Ms death. 14. Distinguish the order of intestate succession between a legitimate and an illegitimate person.
LEGITIMATE Legitimate Children and Descendants Legitimate Parents and Ascendants Illegitimate Children Surviving Spouse Brothers and Sisters, Nephews and Nieces Other Collateral Relatives within the 5th degree The State ILLEGITIMATE Legitimate Children and Descendants Illegitimate Children Illegitimate Parents Surviving Spouse Other Collateral Relatives within the 5th degree The State