1

SUCCESSION

and the other part is the free portion which he can

give to anybody

INTRODUCTION

IV. As to the extent of right and obligations involved:

a.
Universal succession or succession by an
Succession is the transmission of rights and properties
heir is the succession to the universality or the
from one person to another. It may be inter vivos or
aliquot portion of the estate of the decedent
mortis cause, depending on whether the transfer is
b.
Particular succession which is succession to the
effective during the lifetime (inter vivos) of the giver, or
specific portion of the property of the decedent
after his death (mortis causa). In its technical
c.
Contractual succession happens when future
signification, succession is restricted to succession mortis
husbands and wives give to each other in their
causa. It denotes transfer of title to property under the
marriage settlement future property, which shall
laws of descent and distribution, taking place as it does,
be effective upon their death
only on the death of a person.
d.
Freak succession is where there is still
succession even without the intervening effect of
Bases of Succession
succession. This happens when in a decree of
1. Natural Law provide for those he would leave behind
annulment or separation or nullity of the marriage,
2. Socio-economic postulate prevents wealth from being
the spouses are ordered to deliver to their children
stagnant
their presumptive legitime.
3. Attribute of ownership

I.

Kinds of Succession
As to effectivity:
a.
Inter vivos (donation) effective during lifetime
b.
Mortis causa (succession) effective upon death
Note: If a deed is a donation, there are certain formalities
that must be observed. If a deed is succession, the
formalities will be different. If it is a will, the person
intended it to be a succession and the formalities shall
comply with the formalities of a will.
2 Types of Will:
i.
Notarial Will
ii.
Holographic Will
3 distinguishing characteristics of a donation
mortis causa:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or what amounts to
the same thing: the transferor should retain
ownership (full or naked) and control of the property
2. Before his death, the transfer should be revocable by
the transferor at will, ad nutum but revocability may
be provided for indirectly by means of a reserved
power in the donor to dispose of the properties
conveyed
3. The transfer should be void if the transferor should
survive the transferee
If these 3 characteristics are present, the document is not
a deed of donation but rather, it is a will. It must comply
with the formalities of a will.

II. As to whether or not there is a will:

a.
Testamentary or Testate Succession if a
person leaves a will
b.
Intestate or Legal Succession if a person dies
without leaving a will
III. As to the transferee or the recipient of the
property
a.
Compulsory succession or succession to the
legitime Part of property which cannot be
disposed of to anybody because that portion is
reserved to his compulsory heirs. Compulsory
heirs are the persons who cannot be deprived of
their inheritance regardless of the will of their
decedent.
b.
Voluntary succession or the succession to
the free portion If a person dies, his estate
shall be divided into 2 parts. One part is the
legitime which is reserved for his compulsory heirs

V. Special Kind: Contractual succession that kind

where a future husband and a future wife give to each
other future property, effective mortis causa, by
means of a marriage settlement.
USON vs. DEL ROSARIO
Facts: Uson was the lawful wife of Nebreda who, upon his
death in 1945, left lands. Nebreda left no other heir
except Uson. Uson claims that when Nebreda died in
1945, his common-law wife del Rosario took possession
illegally of said lands. Del Rosario argued that Uson and
her husband executed a public document whereby they
agreed to separate and, in consideration of their
separation, Uson was given a parcel of land and in return
she renounced her right to inherit any other property that
may be left by her husband upon his death.
Held: At the moment of the death of the Nebreda, the
rights of inheritance of Uson over the lands in question
became vested. Del Rosario's claim that Uson had
relinquished her right over the lands in question because
she expressly renounced to inherit any future property,
cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it
be renounced. Likewise, the new right recognized by the
new Civil Code in favor of the illegitimate children of the
deceased cannot be asserted to the impairment of the
vested right of Uson over the lands in dispute. The right of
ownership of Uson over the lands became vested in 1945.
ALMEIDA vs. CARRILLO
Facts: Macario died in 1931 leaving as next of kin, his
widow, Almeida, and his 3 children by his first marriage.
Later on, the intestate proceedings were commenced and
in the project of partition submitted by all the co-heirs,
and approved by the court, said co-heirs agreed that
Almeida would undertake to pay the cost of the care of
the tomb. Almeida built a mausoleum in Bian for the
remains of her late husband. Thereafter, the co-heirs
secured the consent of the Almeida to have the remains
of the deceased transferred to the Ermita Church. As she
was made to understand that such transfer would only be
temporary, Almeida gave her consent, which she later
withdrew.
Held: Almeida has a better right than the co-heirs to
disinter the remains of the deceased. The parties agreed
in the partition approved by the court that the widow, out
of love for her late husband, would undertake the care of

2
his tomb. The co-heirs allege that Almeida consented to
the transfer of the remains to Ermita Church. However, it
appears that Almeida erroneously gave her consent, for
she was made to believe that the transfer of the remains
would only be temporary, and that her consent thereto
would facilitate the subsequent transfer to the
mausoleum in Bian.

Article 776. The inheritance includes all the

property, rights and obligations of a person which
are not extinguished by his death.
Inheritance vs. Succession Inheritance is the
property or right acquired, while succession is a mode of
acquisition, by virtue of which the property, rights and
obligations are transmitted.

Article 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.
1.
Art. 774 speaks of succession mortis causa.

Property, as defined by law, may be subject of succession

except the following:
Those which are outside the commerce of men or which
are not owned by men (res nullus)
2. Those which are owned by everyone (res communes)
3. Those which are prohibited by law
4. Any property which is not capable of appropriation

Elements:
(a) mode of acquisition (or ownership)
(b) transfer of property, rights, and obligations to the
extent of the value of the inheritance of a person
(called grantor or transferor, decedent, testator, or
intestate)
1.
(c) transmission thru death (not during life)
(d) transmission to
another
(called grantee, or
transferee, heir, legatee, or devisee)
(e) by will or by operation of law (testamentary or legal
succession)
CORONEL vs. CA
Facts: Petitioners executed a document in favor of
respondent Ramona for the sale of their inherited house
and lot for P1.24M. Concepcion, mother of Ramona, paid
the down payment. The property was transferred in
respondents names. Subsequently, petitioners sold the
property to Mabanag for P1.58M. For this reason,
petitioners canceled and rescinded the contract with
Ramona, and executed a deed of absolute sale over the2.
property in favor of Mabanag.
3.
Held: There was already a perfected contract between
petitioners and Ramona. The argument that there was no
perfected contract because they were then not yet the
absolute owners of the inherited property cannot be
sustained. Petitioners, being the sons and daughters of
the decedent, are compulsory heirs who were called to
succession by operation of law. At the time of death,
petitioners stepped into his shoes insofar as the subject
property is concerned, such that any rights or obligations
pertaining thereto became binding and enforceable upon
them. Having represented themselves as the true owners
of the subject property at the time of sale, petitioners
cannot claim now that they were not yet the absolute
owners thereof at that time.
Article 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.

PROPERTY

RIGHTS
Rights Extinguished by Death
Purely Personal Rights
GENERAL RULE: It is not transmissible since it is
extinguished by death
EXCEPTION: It is transmissible: Article 173 Family
Code The action to claim legitimacy may be brought by
the child during his lifetime and shall be transmitted to
the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period
of five years within which to institute the action.
Examples: right to parental authority; marital rights; right
of a Chinese merchant;
right to vote.
Examples: right to parental authority; marital rights; right
to vote
Right to claim acknowledgement or recognition as a
natural child.
Right to hold public or private office or job.
Rights Not Extinguished by Death
Patrimonial rights these are rights which refer to
property
GENERAL RULE: Transmissible
1. Right to bring action for forcible entry/unlawful
detainer
2. Right to bring action to recover property
3. Right to compel the execution of a document
necessary for convenience.
4. Right to enforce civil liability arising from crime
5. Right to continue a lease contract either as lessor or
lessee.
6. Property right in an insurance policy vested interest
EXCEPTIONS: Extinguished by death as provided by law
or agreement by the parties (ex. agency, commodatum,
contract of lease)

1. Agency (Art 1919 NCC)

The decedent is the person whose estate is to be2. Right to be a partner (Art 1830-5 NCC)
distributed.
3. Commodatum (Art 1959 NCC)
4. Right to claim annuity (Art 2027 NCC)
The testator is the person who died who left a will.
5. Right to Guardianship either by property/ward
The intestate is the person who died who left no will.
6. Right to revoke donation
7. Right to Tenancy
INHERITANCE

OBLIGATIONS not extinguished by death

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GENERAL RULE: Transmissible
EXCEPTIONS:
1.
Purely personal
2.
Non-transferable by law
3.
Non-transferable by contract or agreement
between the parties.
Examples of obligations extinguished by death:
1.
Obligation to pay taxes
2.
Criminal liability
3.
Right to give support
Debts (2 views)
1.
Not transmissible since it is actually the estate
of the deceased which pays the debts and the
remainder is just distributed among the heirs.
2.
Transmissible because the shares of the heirs
are reduced by the payment of the debts
(preferred view)
Example: If a father leaves P100M as assets and P20M as
debts, the heir really collects only P80M. Upon the other
hand, if the debt was P120M, the heir is not required to
pay the balance of P20M.
CONDE vs. ABAYA
Facts: Casiano, unmarried, died on 1899. Conde, as the
mother of the natural children Jose and Teopista, whom
she states she had by Casiano, moved for the settlement
of the said intestate succession. Both Jose and Teopista
were unacknowledged natural children of Casiano. Conde
claimed succession to the hereditary rights of her children
with respect to the inheritance of their deceased father.
Roman Abaya, brother of Casiano, opposed the claim of
Paula contending that as being the nearest relative of the
deceased, he should be declared as the sole heir.
Held: Conde cannot bring an action for acknowledgement
of the natural filiation of Jose and Teopista. The right of
action that devolves upon the child to claim his legitimacy
lasts during his whole life, while the right to claim the
acknowledgment of a natural child lasts only during the
life of his presumed parents. The right of action pertaining
to the child to claim his legitimacy is in all respects
superior to that of the child who claims acknowledgment
as a natural child. And it is evident that the right of action
to claim his legitimacy is not one of those rights which the
legitimate child may transmit by inheritance to his heirs;
it forms no part of the component rights of his
inheritance. In order that it may constitute a portion of
the childs inheritance, it is necessary that the conditions
and the terms in Article 118 shall be present, since
without them, the right that the child held during his
lifetime, being personal and exclusive, and as a general
rule, not susceptible of transmission, would and should
have been extinguished by his death.
LEDESMA vs. MCLACHLIN
Facts: Socorro lived maritally with Lorenzo while the
latter was still single. They had a daughter Ana. The
relation between Socorro and Lorenzo came to an end,
but the latter executed a deed acknowledging Ana as his
natural daughter. Lorenzo issued in favor of Socorro a
promissory
note.
Subsequently,
Lorenzo
married
McLachlin, with whom he had four children. Lorenzo died
and later, his father Eusebio also died. In Eusebio's
intestate proceedings, Socorro presented the promissory
note for payment.

Held: The properties inherited by McLachlin and her

children
from
their
deceased
grandfather
by
representation are not subject to the payment of debts
and obligations of their deceased father to Socorro.
Neither Eusebio's estate nor the heirs are liable, for
neither contracted the debt, nor may it be said that the
heirs are inheriting from Lorenzo for the truth is, the
heirs are inheriting only from Eusebio. The heirs only
answer with the properties received from their
predecessor.
LIMJOCO vs. INTESTATE OF PEDRO FRAGRANTE
Facts: Fragante applied for a certificate of public
convenience to operate an ice plant. But he died pending
the application. The Public Service Commission issued a
certificate of public convenience to the Intestate Estate of
the deceased Fragante. Petitioner opposed contending
that the substitution of legal representative of the estate
of Fragante as party applicant is said to be in
contravention of law.
Held: Fragantes legal representative may continue the
application. Unless otherwise expressly provided by law,
any action affecting the property or rights of a deceased
person which may be brought by or against him if he were
alive, may likewise be instituted and prosecuted by or
against the administrator. Further, the estate of Pedro
Fragrante should be given an artificial or juridical person
for the purposes of the settlement and distribution of his
estate which, of course, include the exercise during the
judicial administration thereof of those rights and the
fulfillment of those obligations of his which survived after
his death. One of those rights was the one involved in his
pending application before the Public Service Commission
in the instant case, consisting in the prosecution of said
application to its final conclusion.
RABADILLA vs. CA
Facts: In a Codicil of testatrix Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny
Rabadilla, was instituted as a devisee of a parcel of land,
with the obligation to deliver 100 piculs of sugar to Maria
every year. The codicil provides that the obligation is
imposed not only on the instituted heir but also to his
successors-in-interest and that in case of failure to
deliver, Maria shall seize the property and turn it over to
the testatrix's "near descendants." Dr. Rabadilla died.
Maria alleged failure of the heirs to comply with their
obligation under the Codicil.
Held: Whatever rights Dr. Rabadilla had by virtue of the
Codicil were transmitted to his forced heirs, herein
petitioners, at the time of his death. And since obligations
not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Rabadilla, were likewise
transmitted to his compulsory heirs upon his death. Thus,
petitioners, as compulsory heirs of the instituted heir, Dr.
Rabadilla, also assumed the decedent's obligation to
deliver 100 piculs of sugar to Maria.
SPEED DISTRIBUTING CORP. vs. CA
Facts: Pastor married Rufina. Pastor and Rufina did not
have a child. They decided to "adopt" Leonard and
petitioner Lita. Pastor and Rufina jointly filed a Petition for
voluntary dissolution of conjugal properties. As their
differences worsened, Rufina filed a petition for legal

4
separation. Thereafter, Speed Distributing was registered
with SEC with Pastor as an incorporator. Leslim Corp. was
also registered with SEC. Subsequently, Leslim executed a
deed of absolute sale in favor of Speed over a parcel of
lot. Pastor died intestate and was survived by his wife,
Rufina. Rufina filed a complaint against Speed for the
nullification of the sale executed by Leslim in favor of
Speed over the lot.
Held: Rufina is one of the heirs of Pastor, who died
intestate. She was, in fact, the surviving spouse of the
deceased, a compulsory heir by operation of law.
Although Rufina was appointed as special administratrix,
she had the right, apart from her being a special
administratrix, to file the complaint against the
petitioners. From the very moment of Pastor's death, his
rights were transmitted to his heirs. Whatever claims and
rights Pastor had against the petitioners were transmitted
to Rufina by operation of law. Thus, she can commence
any action originally pertaining to the decedent.
Article 777. The rights to the succession are
transmitted from the moment of the death of the
decedent.

becomes the owner and possessor of the property,

beginning July 5, 2002. This is because it is not delivery
that transfers ownership here, but succession. Moreover,
the effects of an acceptance (of the inheritance) retroact
to the moment of death If, upon the other hand, instead
of acceptance, there is repudiation, it is as if the heir
never owned, never possessed the property, also because
of the retroactive effect of a repudiation. In the last case,
in the absence of any other heir, the State inherits the
property, and the same will be considered patrimonial.
Presumed Death
Under ordinary circumstances (Art. 390), absentee is
presumed dead at the end of 10 years; if he
disappears after the age of 75, 5 years. In these

instances, the moment of death is reckoned after

the end of the 5 or 10-year period, whichever is
applicable.
Under extraordinary circumstances (Art. 391),
absentee is presumed dead at the end of 4 years In
this instance, the moment of death is reckoned from
the moment of disappearance.

Article 391 (New Civil Code). The following shall be

presumed dead for all purposes, including the division of
Death is a condition for the transmission of a right by
the estate among the heirs:
succession.
While your parents are still alive, their (1) A person on board a vessel lost during a sea voyage, or
properties are still owned by them. What you have is
an aeroplane which is missing, who has not been
merely an inchoate right or expectancy. It is not an
heard of for four years since the loss of the vessel or
absolute right.
aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
Note: Though the law says are transmitted, the proper
words should be are made effective, for otherwise, we (3) A person who has been in danger of death under other
circumstances and his existence has not been known
may be led to believe that the decedents right to
for four years.
succeed are what are transmitted, and not the rights to
the inheritance.
Q: What if the father and his son died in the same
accident and you do not know which of the two died first?
Conditions for the transmission of a successional right:
A: Article 43 (New Civil Code). If there is a doubt, as
1. There should be death (actual or presumed) of the
between two or more persons who are called to succeed
transferor
each other, as to which of them died first, whoever
2. The rights or properties are transmissible
3. The transferee is alive, willing, and capacitated
alleges the death of one prior to the other, shall prove the
same; in the absence of proof, it is presumed that they
Q: Prior to the decedents death, can the future heirs
died at the same time and there shall be no transmission
claim anything from the property of the decedent? Can
of rights from one to the other.
you claim the properties of your parents while your
parents are still alive?
If there are circumstances which point to the time of the
actual death of the person, then, that time wherein
A: No. While your parents are still alive, their properties
there is proof should be followed and not the
are owned by them. What you have over the properties is
presumptions.
merely an INCHOATE RIGHT or an EXPECTANCY. So, it is
not an absolute right, but merely an expectancy. You
Q: If a father who is 77 years old and a son who is 5 years
expect to receive these properties if your parents die
old go together on a trip and afterwards they were not
ahead of you.
seen anymore, after 12 years still no news about them.
Who died first?
Efficient Cause for Transmission of Successional
A: The son is presumed to have died later and the father
Rights If there is a will, then it is the will which is the
is presumed to have died first. Because the father was
efficient cause of succession. It is the cause why you
over 75 years old when he disappeared and the son was
succeed the will. However, if the person dies without a
below 75 years old. In Articles 390 and 391, theres
will, then it is the presumed will of the decedent which is
merely absence. There is no proof of death. So in that
the efficient cause of succession. It is a presumed will
case, you can presume that after 5 years, the father died
because there is no will. But the law presumes that if the
and the son died after 10 years. Note that Art. 391
decedent had a will, then he would have disposed off the
provides for certain circumstances by which you will
properties in the manner which the State provides for.
conclude whether or not a person dies already. But Art.
Thus, for example, the State assumes that the decedent
391 provides only for presumptions. If there are
had a will, then he would really provide for his children
circumstances which point to the time of the actual death
and wife/husband.
of the person, then that time wherein there is proof
should be followed and not the presumptions. Articles 390
Actual death If a decedent dies on July 5, 2002, and
and 391, being presumptions, are rebuttable by
the property is actually delivered to the heir only on Aug.
presentation of evidence to the contrary.
4, 2002 the heir, unless otherwise disqualified,

5
Effect of absentees return or appearance He shall
recover his property in the condition in which it may be
found, and the price of any property that may have been
alienated or the property acquired therewith; but he
cannot claim either fruits or rent. The recovery may not
be made anymore, however, if the heir, devisee, or
legatee has acquired the property through prescription.
Q: Suppose the heir had already spent the money (for
food, for example), is there an obligation to reimburse its
value?
A: It is submitted that there is no obligation to reimburse,
inasmuch as the consumption had been made in good
faith.
Q: Can the heirs immediately dispose of their properties
when the testator/decedent dies?
A: In theory, they can. Because as provided under Art.
777, the rights to succession are transmitted from the
moment of death of the decedent. But in reality, you
cannot. Why? For example, the decedent dies with a will,
his will has to be probated first. After the court declares
that the will has been validly and duly executed, then the
estate will pay estate taxes. Afterwards, you go to the
Register of Deeds where you secure proof of payment of
estate taxes and later on you can have the title cancelled
and a new title issued.
Q: What if the decedent dies without a will?
A: If you are the only/sole heir, all you have to do is to
execute an Affidavit of Self Adjudication and afterwards
follow the procedure. If there are many heirs, the heirs
may execute an Extrajudicial settlement among
themselves and again follow the process. If the heirs do
not agree among themselves to Extra-judicially settle the
properties, the heirs may file an action before the courts
an Action for Partition. Then the court will decide the
respective shares of the heirs and go to the same
process.
Note: However, an heir may dispose of the property even
if, in the meantime, the property is under administration.
There is no doubt that an heir can sell whatever right,
interest, or participation he may have in the property
under administration. A declaration of heirs may be made
even BEFORE all debts, expenses, and taxes have been
paid. What is prohibited prior to such payment is the
assignment or distribution of the residue of the
deceaseds estate. Pending liquidation of the estate, the
heirs are entitled to certain allowances for their support
and these, in the proper cases, are chargeable against the
estate. While it is true that future inheritance cannot be
sold, it is valid for an heir, after the testators death, to
sell his share in the estate even pending its liquidation,
for here the inheritance is present, no longer future.
Transitional Provisions Under the old Civil Code,
spurious children were not entitled to inherit even if their
filiation had been judicially decreed or declared. Under
the new Civil Code, said children if recognized voluntarily
or by judicial decree are entitled to inherit.
Q: If a spurious child was born in 1938, but his father died
in 1951, will said child inherit?
A: Yes, he will inherit so long as he can prove his filiation
because the rights to the succession are transmitted or
effected only from the moment of death 1951. Thus,
since it is the fathers death that gave rise to the
succession, and since the death occurred when the new
Civil Code was already effective, it is certain that the

spurious child should inherit, despite his being born under

the old Code there being no vested right of the
legitimate children that would be prejudiced.
Had the father died before Aug. 30, 1950, the spurious
child would not have been entitled since this time, vested
rights of the legitimate children would be prejudiced. This
is true even if there are settlement proceedings in court,
resulting in the delivery of the property to the heirs only
after the new Civil Code had become effective. After all,
the transfer of ownership takes place not after delivery
but from the moment of death, succession being by itself
(and without the necessity of delivery) a mode of
acquiring ownership.
Effect of Fraudulent Intestate Proceedings If heirs
conceal the existence of other heirs and as a result of
such concealment, the intestate proceedings should
award them with the property, the prejudiced heirs can
still file an action to recover their shares, notwithstanding
the termination of the settlement proceedings. This is
because ownership of their shares accrued to them
automatically upon the decedents death.
JAKOSALEM vs. RAFOLS
Facts: Susana, daughter of the deceased Juan, sold the
land with the right of repurchase to Pedro Cui, subject to
the stipulation that during the period for the repurchase,
she would continue in possession of the land as lessee of
the purchaser. The partition of the estate left by the
deceased Juan was made, and the land was adjudicated
to Susana. In 1921, she conveyed, in payment of
professional fees, 1/2 of the land in favor of the Nicolasa
Rafols. Pedro Cui brought an action to recover said half of
the land from Nicolas, and while that case was pending,
Pedro Cui donated the whole land in question to
Generosa, petitioner.
Held: The sale made by Susana of her share in the
inheritance to Pedro Cui, subject to the result of a pending
administration, is valid. That the land could not ordinarily
be levied upon while in custodia legis, does not mean that
one of the heirs may not sell the right, interest or
participation which he has or might have in the lands
under administration. The sale was valid but it would be
effective only as to the portion to be adjudicated to
Susana upon partition. And upon the partition, as the land
in question was adjudicated to Susana, the sale of the
whole land which the latter made in favor of Pedro Cui
was entirely confirmed. Thus, the conveyance to Nicolasa
could no longer be done.
IBARLE vs. PO
Facts: Leonard and Catalina were husband and wife.
Leonard died, leaving a parcel of land to the heirs, the
surviving spouse and children. Catalina sold the entire
parcel of land to the spouses Canoy, who later sold the
same parcel to Ibarle. Catalina, after appointment as
guardian of her children by the court, sold 1/2 of the land
to Esperanza Po.
Held: The sale to Esperanza Po was valid. The moment of
death is the determining factor when the heirs acquire a
definite right to the inheritance, whether such right be
pure or contingent. When Catalina sold the entire parcel
to the Canoy spouses, 1/2 of it already belonged to her
children. No formal or judicial declaration being needed to
confirm the children's title, it follows that the first sale

6
was null and void in so far as it included the children's
share. On the other hand, the sale to Esperanza Po having
been made by authority of the competent court was
undeniably legal and effective.
LORENZO vs. POSADAS
Facts: Hanley died leaving a will, providing that his
money and property be given to his nephew, Matthew.
The property will only be given ten years after Hanleys
death. Lorenzo was appointed as trustee of the estate.
Posadas, CIR, assessed inheritance tax against the estate
computed at Ts death. Lorenzo, on the other hand,
claimed that the inheritance tax should have been
assessed after 10 years.
Held: The inheritance tax against the estate must be
computed at Ts death, not ten years later. The accrual of
the inheritance tax is distinct from the obligation to pay
the same. The tax is upon transmission or the transfer or
devolution of property of a decedent, made effective by
his death. In other words, the heirs succeed immediately
to all of the property of the deceased ancestor. Thus, the
tax should be measured by the value of the estate as it
stood at the time of the decedents death, regardless of
any subsequent contingency affecting value or any
subsequent increase or decrease in value.
MACASAET vs. MACASAET
Facts: Petitioners Ismael and Teresita and Respondents
Vicente and Rosario are first-degree relatives. Ismael is
the son of respondents, and Teresita is his wife. The
parents filed an ejectment suit against the children.
Respondents alleged that they were the owners of two
parcels of land and by way of a verbal lease agreement,
petitioners occupied these lots. Petitioners contended that
the lot had been allotted to Ismael as advance
inheritance, while the other lot was allegedly given to
petitioners as payment for construction materials used in
the renovation of respondents house.

upon his death to his heirs, which includes his widow

Narcisa, who is entitled to the same share as that of each
of the six children. His six children and Narcisa inherited
the same at 1/7 each. Inasmuch as Narcisa inherited 1/7
of her husband's conjugal share in the said property and
is the owner of 1/2 thereof as her conjugal share, she
owns a total of 9/14 of the property. Hence, Narcisa could
validly convey her total undivided share in the entire
property to Tomas. While Narcisa could validly sell 1/2 of
the property, she could not have particularly conveyed
the northern portion thereof before the partition, the
terms of which was still to be determined by the parties
before the court.
SUAREZ vs. CA
Facts: Petitioners are brothers and sisters. Their father
died and since then his estate has not been partitioned.
Petitioners widowed mother and Rizal Realty lost in a
case, and were ordered to pay, jointly and severally,
herein respondents. The judgment having become final
and executory, five parcels of land were levied and sold
on execution. Before the expiration of the redemption
period, petitioners filed an action to annul the auction
sale and recover the property, alleging that being
strangers to the case decided against their mother, they
cannot be held liable and that parcels of land, of which
they are co-owners, can neither be levied nor sold on
execution.
Held: Only 1/2 of the 5 parcels of land should have been
the subject of the auction sale. The legitime of the
surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and
auctioned property is different from and adverse to that of
their mother. Petitioners became co-owners of the
property not because of their mother but through their
own right as children of their deceased father. Therefore,
petitioners are not barred from instituting the action to
annul the auction sale to protect their own interest.
DELA MERCED vs. DELA MERCED

Held: The right of petitioners to inherit from their parents

is merely inchoate and is vested only upon the latters
demise. Indisputably, rights of succession are transmitted
only from the moment of death of the decedent.
Assuming that there was an "allotment" of inheritance,
ownership nonetheless remained with respondents.
Moreover, an intention to confer title to certain persons in
the future is not inconsistent with the owners taking back
possession in the meantime for any reason deemed
sufficient.
FLORA vs. PRADO
Facts: Narcisa Prado, wife of the deceased, subsequently
married Bonifacio. Narcisa agreed to sell to her brother-inlaw, Tomas, the northern half portion of the property
under litigation. Tomas daughter, Flordeliza Flora, built a
duplex on the northern half of the property. Respondents,
who occupied the southern half, did not object.
Respondents filed a complaint for nullity of sale against
petitioners.
Held: The sale of the undivided 1/2 portion thereof by
Narcisa in favor of Tomas is valid. The property being
conjugal, upon the death of Patricio, 1/2 of the subject
property was automatically reserved to the surviving
spouse, Narcisa, as her share in the conjugal partnership.
Patricios rights to the other half, in turn, were transmitted

Facts: Evarista died intestate. At the time of her death,

Evarista was survived by three sets of heirs, one is
Francisco, her legitimate brother. Subsequently, Francisco
died. He was survived by his wife and their 3 children. The
three sets of heirs executed an extrajudicial settlement.
Private respondent Joselito, illegitimate son of the late
Francisco, filed a petition for annulment of the
extrajudicial settlement, alleging that he was fraudulently
omitted from the said settlement made by petitioners.
Held: Evarista died first. Naturally upon her death, her
properties were transmitted to her son Francisco. When
Francisco died his properties were transmitted to his
children. His children will inherit from him whether
legitimate or illegitimate because there is no bar in the
civil code between illegitimate children inheriting from
their illegitimate parents. Art. 992 will not apply in this
case. According to Art. 992, if Francisco died ahead of
Evarista, Joselito cannot inherit from Evarista because
there is a bar in the NCC between the legitimate and
illegitimate. In this case, Joselito does not claim to be an
heir of Evarista by right of representation, but participates
in his own right, as an heir of the late Francisco, in the
latter's share in the estate of Evarista.
RIOFERIO vs. CA

7
Facts: Alfonso died without a will He also left a widow,
respondent Esperanza and 7 children. The demise of the
decedent left in mourning his paramour, petitioner
Teodora, and their children. Respondents discovered that
Teodora and her children executed an extrajudicial
settlement of Alfonso's estate, and executed a real estate
mortgage over the properties subject of the extra-judicial
settlement. One of the respondents prayed that letters of
administration be issued to him. The petitioners
interposed the defense that the properties belong to the
parents of Teodora and were inherited by her.
Held: Pending the filing of administration proceedings,
petitioners have legal personality to bring suit in behalf of
the estate of the decedent. Even if administration
proceedings have already been commenced, the heirs
may still bring the suit if an administrator has not yet
been appointed. The heirs cannot be expected to wait for
the appointment of an administrator, and in the
meantime do nothing while the rights and the properties
of the decedent are violated. Jurisprudence recognizes
three exceptions: (1) if there is an appointed
administrator, if the executor (testate) or administrator
(intestate) is unwilling or refuses to bring suit; and (2)
when the administrator is alleged to have participated in
the act complained of and he is made a party defendant;
and (3) when there is no appointed administrator.
PALICTE vs. RAMOLETE
Facts: A sale at public auction was held pursuant to a writ
of execution by respondent judge. Seven properties
belong to the late Don Filemon Sotto and administered by
respondent Marcelo Sotto. The properties were awarded
to Teves. Within the period for redemption, petitioner
Palicte, as one of the heirs of the late Don Filemon,
redeemed from purchaser Teves, four lots. Palicte filed a
motion with respondent judge for the transfer to her
name the four parcels of land. This motion was opposed
on the ground that Palicte is not one of those authorized
to redeem under the Rules of Court. The judge ruled that
Palicte is not a successor-in-interest who may redeem the
real properties sold.
Held: Palicte is a successor-in-interest who may be able
to redeem the said properties sold. The heirs may dispose
of the property even while the property is under
administration. If the heirs may dispose of their shares in
the decedent's property even while it is under
administration, with more reason should the heirs be
allowed to redeem redeemable properties despite the
presence of an administrator.
Article. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Mixed decedent may have died partly testate and
partly intestate.
Aside from the three kinds of succession enumerated in
the law, there are two more, namely:
(a) Compulsory (or necessary or forced) succession
or succession to the legitime. [NOTE: It is
1.
compulsory for the testator to give his compulsory
heirs their legitimes; but it is not compulsory for the
heirs to receive or accept said legitimes, for no one is
compelled to accept an economic advantage or benefi
t from another.]

(b) Contractual succession This happens when a

future husband and future wife give to each other in
their marriage settlement as much of their future
property, in the event of death, as they may validly
dispose of in a will. Contractual succession, it must be
noted, does not need the formalities of a will; a
marriage settlement [which must comply with the
Statute of Frauds as to form, i.e., in writing] is
sufficient.
Article 779. Testamentary succession is that which
results from the designation of an heir, made in a
will executed in the form prescribed by law.
Conditions for Testamentary succession
1. There MUST be a will;
2. There should be a designation of heir;
3. There must be observance of the formalities
required by law.
There should be a will in testamentary succession (a.k.a
voluntary succession), and it must be executed in
accordance with law.
The will or codicil may be:
(1) notarial (ordinary, attested, or acknowledged)
(2) holographic (handwritten by the testator from
beginning to end, complete with date and signature)
PRINCIPLES IN TESTAMENTARY SUCCESSION
1. TESTAMENTARY SUCCESSION IS PREFERRED
OVER INTESTATE SUCCESSION When there is a
will, the will has to undergo probate. Probate is a
proceeding wherein you determine whether or not the
will was validly executed and whether or not the will
was executed by person who has testamentary
capacity.
There is no prescriptive period in the
probate of will as long as there is a will.
2. DOUBTS MUST BE RESOLVED IN FAVOR OF
TESTACY If there is doubt whether or not the will is
valid, the interpretation being you give effect to the
will and the second interpretation is you may not be
able to give effect to the will, the first interpretation
wherein the will is given effect should be preferred.
Two instances where legal or intestate succession
occurs:
1. There is no will
2. The will is not valid at all
The moment that a copy of the will is delivered to the
court, the court already acquired jurisdiction. So even if
no one really files formally a petition for testate
proceedings, no payment of docket fees, no filing of
petition, no bidding, if only a will is delivered to the court,
the court automatically acquires jurisdiction That illustrate
how important it is to give effect to the wishes of the
testator.
Article 780. Mixed succession is that effected partly
by will and partly by operation of law.
When mixed succession occurs:
When the testator fails to dispose all of his
properties in a will
Example 1: A testator has 10 hectares of land but in his
will, he merely provides, I hereby give 6 hectares to my
heirs. So what happens to the 4 hectares? The 6

8
hectares will be disposed in accordance with the will and
the 4 hectares will be disposed in accordance with the
provision of the law.
So in effect there is mixed
succession.
Example 2: The testator has 3 children and 1 wife and 1
concubine, still the testator has 10 hectares but in his will
he merely provides, I hereby give my wife 2 hectares,
my 3 children 2 hectares each, and my concubine 2
hectares. Under the law, a disposition in favor of a
concubine is VOID. So what happens to the 2 hectares
disposed in favor of the concubine? The 2 hectares
should not be given effect. So the 2 hectares given to the
concubine should be disposed not in accordance with the
will of the testator even if it is his express wishes. The 2
hectares will be disposed in accordance with intestate or
legal succession, not testate. So if that is the provision in
the will, then the 2 hectares should be divided equally
between the 1 wife and the 3 children.
2. When the will does not validly dispose of all the
property of the testator
Example: The 2 hectares are given to the concubine then
that is not a valid disposition. That portion should be
disposed of by operation of law, by intestacy and only
those valid dispositions in the will should be effected.
Article 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.
After-acquired properties those acquired from the
moment of death onwards will belong to the devisee,
legatee or the heir to whom the property was given.
What does the inheritance include?
1. The property, the transmissible rights and the
transmissible obligations of the decedent to the
extent of the value of the inheritance; and
2. Those properties, or rights or obligations, if any, which
have accrued since the opening of the succession.
ILLUSTRATION:
1982------------- 1985 ------------ 1990 ------------ 1995
------------ 1998
A bought a
A executed
A rent out
A died
settlement of Building of B
will in favor
the bldg
the estate
In 1982, A bought a building. In 1985, A executed a will
wherein he disposed of the building in favor of B, I
hereby devised my building to B. In 1990, A decided to
rent out the building for an amount of P10T monthly. In
1995, A died. In 1995, the building goes to B because the
building was given to B by virtue of the will. However, the
settlement of the estate of A was not immediately settled.
It was settled in 1998. From the moment of death of A in
1995 up to 1998, there were income derived from the
rent of the building. From 1990 up to 1995, there were
also unpaid rents of P100,000.
Under Article 781, the properties which in this case the
building is transmitted to B from the moment of death of
A in 1995. How about the rents from 1995 to 1998?
Those income/properties which have accrued thereto
since the opening of the succession, so in this case the

succession opens in 1995. So all income, or accessions,

fruits of the property accruing from the moment of death
will ALL pertain to the person to whom the property has
been given. What is the reason for this? When A died in
1995, B became the owner and in your Property subject,
the accessions, fruits or income of the property pertains
to the owner. How about from 1990 to 1995 who will own
the P100T? The estate of A, but upon As death, it would
be the compulsory heirs of A. If B happens to be a
compulsory heir then he could participate in the P100T. If
he is not then he has the right to participate in the P100T.
Art 781 speaks only of properties from 1995 to 1998.
Article 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.
Heirs Those who succeed to the universality of the
rights, properties and obligations of the decedent; they
are not given specific portions of the property but aliquot
shares; heirs may be compulsory (if entitled to the
legitime) or voluntary (like a friend).
Legatee Those who succeed to personal properties.
Devisee Those who succeed to real properties or
immovable properties of the decedent.
Kinds of Heirs
1. Compulsory or forced heirs are persons who are
not deprived of their inheritance unless there are
causes to disinherit them and the causes are provided
by law. LEGITIME is that portion of the property, rights
and obligations of the decedent which you cannot just
dispose of because the law reserved it for the
compulsory heirs.
2. Legal or intestate heirs are heirs who inherit by
operation of law. The person dies without a will.
3. Voluntary, testamentary or testate heirs are
heirs who will inherit because of the will of the
decedent; they can be compulsory or forced heirs.
What is the importance of distinguishing heirs from
legatees and devisees?
1. There is what we call Preterition (Art. 854). When
there is preterition, the instituted voluntary heirs do
not get anything. But the legatees/devisees, they
retain the properties given to them as long as the
legitime is not impaired.
2. When there is invalid disinheritance, again the
instituted voluntary heir gets nothing while the one
who received properties by way of legatee or devise
retain the property given to them as long as the
legitimes of the compulsory heirs are not impaired.
PRETERITION happens when a direct line or a
compulsory heir is omitted from the will. The effect is the
will cannot be given effect. So, there shall be intestacy
wherein the will is disregarded and as if the person died
without a will. But for the legatees/devisees, they retain
the properties given to them as long as the legitime is not
impaired.
Heirs vs. Legatees/Devisees

9
1. Heirs succeed by general right or universal title to all
or fraction or aliquot part of the properties, while
devisee/legatee succeeds by special or particular title.
2. Heir exists in both testamentary succession and
intestate succession, while in legacy or devise the
term devisee/legatee exits only in testamentary
succession.
3. The heir, if compulsory, succeeds to the inheritance
regardless of the will of the decedent. So even if the
decedent does not want to give anything to that
particular heir but that heir is a compulsory heir and
there is no ground to disinherit him then that
compulsory heir can get the properties which should
pertain to him/her. Legatees/devises, on the other
hand, acquire only the property by reason of the will
of the testator. If the testator has no will, then
legatees/devisees do not get anything. For example, if
you have a friend, you can institute him as a
legatee/devisee, but if you do not like him then you
can omit him because he is not a compulsory heir. He
succeeds only if you provide something in your will.
4. With respect to the heirs, the properties that are given
to them cannot be determined until after the
liquidation of the properties of the estate of the
decedent. This is because they succeed by universal
title to all the properties, rights and obligations. With
respect to legatees/devisees, they can be determined
because legacy is given as personal property.
5. Heir represents the juridical personality of the
deceased because the heir acquires the properties,
his rights and his obligation. Juridical personality is the
continuation of the personality of the deceased; while
the legatee/devisee does not succeed to the juridical
personality of the decedent because they only
succeed to particular properties of the decedent.
6. Heir succeeds to the remaining properties of the
decedent if there are remaining properties. After all
the properties have been distributed to the persons
entitled thereto, if there are still properties, the heirs
may participate in the remaining properties; whereas
the legatees/devisees cannot participate in the
remaining properties because again they succeed to
particular properties. They only get what are
specifically given to them. As to the remainder, they
have no right anymore to participate.
Note: All compulsory heirs are legal heirs. But not all
legal heirs are compulsory heirs. Why? Because when a
person dies without a will then compulsory heirs succeeds
by operation of law. Or, if there is a will but the will is not
valid then compulsory heirs succeed by operation of law,
the will is disregarded.
How about legal heirs or intestate heirs? They succeed by
operation of law. But some of them cannot impose upon
the testator to provide something for them in the will.
Examples of legal heirs who are not compulsory heirs are
the brothers/sisters. When a person dies without a will,
they may participate in the estate of the deceased
person. But if a person provides for a will, they cannot
impose upon the person to give them something in the
will.

TESTAMENTARY SUCCESSION
WILLS
Article 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 his

estate, to take effect after his death.
A will has been defined as species of conveyance whereby
a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his
estate after his death.
Elements of a Will:
1. The making of a will is a statutory (not a
natural) right.
If the country does not provide for the right to make a
will, then the person who dies in that country cannot
validly make a will. This is because the right to make a
will is provided for by law. It is not an inherent right like
the right to life, liberty, and property.
With the formalities prescribed by law, to control to a
certain degree, so his right to make a will is not absolute
because there are limitations imposed by law. You cannot
just dispose your properties to any person you like. You
have to follow the rules provided for by law.
2. It is a unilateral act.
It is the sole act of the testator unlike a donation or sale
or any other contract, a will needs only the sole wishes of
the testator. It does need the acceptance of the person to
whom the will is given. It does not require the consent of
the other party.
3. It is a solemn or formal act.
There are certain requirements that have to be complied
with when making a will. So you have to observe those
formalities and requirements in order for the will to be
valid. Otherwise, the will is defective and it would not be
given effect.
4. There must be animus testandi (intent to make
a will)
For example, A and B were playing, A addressing to B,
Ok, I will give to you all my properties. Is there an
intent to make a will? No, because they were just playing.
So later on, B cannot enforce the will made by A while
they were playing. There was no intent to make a will.
5. The testator must be capacitated to make a will.
The testator must be of sound mind and he should know
the nature of what he was doing. An insane person cannot
make a will. If an insane person gives you everything that
he has and even if it turns out that that insane person is a
millionaire, still, you cannot get his properties by virtue of
the will which he executed in your favor because the
insane person does not know what he was doing.
6. It is strictly a personal act in all matters that
are essential.
Since the will expresses the manner in which a person
intends how his properties be disposed, the wishes and
desires of the testator must be strictly followed. Thus, a
will cannot be the subject of a compromise agreement
which would defeat the very purpose of making a will.
7. It is essentially revocable and ambulatory.

10
Again, it is the sole act of the testator and it is connected
to the other requisites that the will is essentially
revocable and ambulatory because the will is his OWN
act, OWN desires and OWN wishes. You cannot impose
upon a person to make a will for you. The initiative must
come from the testator himself to provide for you.

holographic will must be in the own handwriting of the

testator.
Article 785. The duration or efficacy of the
designation of the 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.

8. It is effective mortis causa.

What matters cannot be delegated under art 785?
The will takes effect only upon death. Like we have
discuss, when the person is still alive then you cannot get
anything from him because your right is merely an
inchoate right, merely an expectancy.
You cannot
demand that he gives his properties to you or that the will
be enforced while he is still alive.

(1) The duration of the designation of the heirs, devisees

or legatees;

It must be voluntary on the part of the testator, it cannot

be imposed. It is a personal act.

EXAMPLE: I hereby give my car to B and C and they will

use the car alternately but the duration of the use of each
shall be subject to the will of X. So X determines the
duration of the designation of B and C as heirs. This
cannot be delegated because when that happens, it is not
actually the will of the testator that is being followed. It is
already the will of X.

10. It is an individual act as distinguished from a

joint act.

(2) The efficacy of the designation of the heirs, devisees

or legatees;

The making of the will must be the SOLE ACT of one

person. You cannot make a joint will. Only one person
one will.

EXAMPLE: I hereby institute B as heir to all my properties

but this shall be subject to the approval of Y. So Y will
actually decide whether or not the efficacy of the
designation shall be valid. Again, this is not allowed
because what is being followed here is not the will of the
testator but the will of the person who determines
whether or not the designation or efficacy shall be valid

9. It is free from vitiated consent.

11. It disposes of the testators

accordance with his wishes.

estate

in

It must be wishes of the testator and not according to

wishes of anyone.
A will is not only an act. It is also an instrument because a
will has to be in writing. There is no such thing as an Oral
will. The will must be embodied in the document, it must
be in writing.
Difference
between
a
Last
Will
and
a
Testament Will disposes of real properties, while last
testament disposes of personal properties.
Article 784. The making of a will is a strictly
personal act; it cannot be left in whole or in part to
the discretion of a third person, or accomplished
through the instrumentality of an agent or
attorney.
Will-Making Is a Strictly Personal Act The
mechanical act of drafting may be entrusted to another,
as long as the disposition itself expresses the testators
desires, and all the formalities of the law are complied
with, such as the signing by the testator and the
witnesses (in the case of a notarial will), or the copying by
the testator in his own handwriting (in the case of the
holographic will).
Q: Can the testator entrust the drafting of his will to any
other person?
A: Yes, he can entrust the mechanical of drafting the will
to other persons. For example, you engage the services 1.
of a lawyer to draft your will. But the contents of the will 2.
must be the wishes of the testator. The lawyer cannot3.

(3) the determination of the portions which the heir, or

legatee or devisee shall take, when referred to by
name.
EXAMPLE: I leave my properties to X, Y and Z and A will
determine how much will be the share of each. So the
recipient are named X, Y and Z. A will determine how
much will be the respective share of each. Again, this is
not valid, this cannot be delegated. As I said, will-making
is strictly a personal act and any act which prefers to
negate the fact that it should be the testator himself who
should his will then that act will not be considered to be
as valid.
Article 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 of money are to be given or
applied.
This Article does not really contradict the preceding one,
for in Art. 786 the particular names are not designated
whereas in Art. 785, the names of particular persons are
given. Moreover, in Art. 786, a class or a cause is what is
specified.

Requisites:
The testator entrust to a third person;
The distribution of specific property or sums of money;
These specific property or sums of money are left in
general to specific classes or causes;
dictate the testator to whom the properties of the testator
4. There is the designation of the persons, institutions or
are to be given. That is only true when you talk about
establishments to whom such property or sums of
notarial will. In a holographic will, the mechanical act of
money are to be given or applied.
drafting the will cannot be left to a third person because a
Art. 786

Art. 785

11
There is NO such heir,
legatee or devisee that is
named
There is specific property
or sums of money.
There is a determination of
the
persons,
establishments
or
institution or to whom the
specific property or sums
of money is to be given or
applied.

The heirs, legatees

devisees are named.

or

There is NO specific
property
or
sums
of
money.
What is delegated is the
determination
of
the
portion which shall go to
the named heir, legatee or
devisee.

Article 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.
Article 787 is similar to Article 785. But strictly speaking,
there is a very little difference between the 2 articles.
Article 785 refers more to the institution of the heirs. For
example, "I hereby institute B as heir to all my properties
but this institution shall be subject to the approval of Y."
Article 787, on the other hand, refers more on the
designation or disposition of the properties. For example,
"I hereby leave my house in Ma-a to Y but Z shall
determine if this is valid because Z can also provide that
a car instead shall be given." So, this is not valid because
the disposition is subject to the will of a third person.
Whether or not a disposition shall be valid cannot be left
to the will of a third person.
Even if there are specific designations or dispositions
which are void, the will itself in its entirety is valid. Only
the specific dispositions or designations are not
considered as unwritten.

the will valid and the other one will make the will invalid,
that disposition which shall make the will valid shall be
given effect and shall be preferred. You have to remember
that in interpretation of wills, THE WISHES OF THE
TESTATOR IS THE FIRST AND PRINCIPAL LAW.
As long as the will is capable of reasonable interpretation,
then the will should be given effect. For example, I
hereby give to B, my illegitimate child, my house and lot
in Claveria. However, it turns out that B is not an
illegitimate child. So should the house and lot be given to
B since B is not an illegitimate child? Yes. The word
illegitimate is not considered as a condition for B to
receive the properties. The testator merely intended the
word illegitimate as a description, not a condition.
Article 788 applies only in case of doubt, that is, when the
terms of the will are not clear and are ambiguous. But
when there are no doubts or when the provisions in the
will are clear, then there is no room for interpretation.
You have to dispose of the will according to the wishes of
the testator as provided therein .In the same manner that
if the provisions in a will are clearly illegal, do not
interpret it in such a manner as to give it any semblance
of legality.
Article789. 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 unto his intention;
and when an uncertainty arises upon the face of
the will, as to the application of any of its
provisions, the testators 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.

Q: In summary, what matters cannot be delegated?

A: Under article 785:
Two Kinds of Ambiguity:
(1) The duration of the designation of the heirs, devisees(1) LATENT OR INTRINSIC AMBIGUITY (1st clause) does
or legatees;
not appear on the face of the will. By examining the
(2) The efficacy of the designation of the heirs, devisees
will alone, you do not see that there is some
or legatees;
ambiguity or imperfections in the will.
(3) the determination of the portions which the heir, or
legatee or devisee shall take, when referred to by
What are these latent or intrinsic ambiguities?
name; and
(4) The determination of whether or not the disposition
1. Imperfect description of the heirs, legatees or
shall be operative. (Art. 787)
devisees.
To determine whether or not the delegation is valid, none
of the things mentioned in Article 785 and 787 must
occur. And all of the things mentioned in article 786 must
be present.
With respect to the determination of portion, the fact that
the determination is given or delegated to a third person
is not per se invalid. What makes it invalid is when there
is no determination of the specific cause or specific class
and there is no specific property or sums of money. But if
it is accompanied by the determination of specific
property or sums of money and there is a class or cause,
then that becomes valid under article 786.
Article 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.
The will must be construed in favor of its validity. When
there are two dispositions in a will, one of which will make

EXAMPLE: B provides in his will, I hereby give my

television to John Doe. - By just looking at the will you
do not know that there is something wrong. There is
nothing wrong with giving the television to John Doe. But
it turns out that B actually does not know anybody named
John Doe, friends or family, but actually he has a friend
named Jane Doe. So there occurs the latent or intrinsic
ambiguity because you are not sure to whom the
television is to be given whether to John Doe or Jane Doe.
2. Imperfection description of the property to be
given.
EXAMPLE: B provided in his will, I hereby give my colored
television to Z. There seems to be nothing wrong in that
disposition. However, it turns out that B does not have
any colored TV, she only has a black and white TV. So
here lies the ambiguity. What kind of television is being
given, is it a colored TV or just a black and white TV?

12
3. When two
description.

or

more

persons

meets

the

EXCEPTION: If there is an intention to give it another

meaning.

EXAMPLE: Kristine Mosa provided in her will, I hereby

give to Diet Po my television. There seems to be nothing
wrong with that provision, Kristine giving to Diet Po the
television. The problem is if it turns out that Kristine
actually has many boyfriends and out of these many
boyfriends, 2 are named Diet Po. One is in Davao City and
the other in General Santos City. So here lies the latent or
intrinsic ambiguity, is it Diet Po in Davao City or that one
in General Santos City.

For example, during his lifetime a testator has a long

antique table but he never really used that a table
instead, he used it as a bed. In his will he provided, I
hereby give to Z my bed. Now, the testator does not
really have a bed but he has a table used as a bed. So
what is his intention, is it the bed and give the same to Z,
or is it the table? It is very clear by Extrinsic evidence that
the testator intended that word bed to be the table which
he used as a bed. Although the word bed is an ordinary
word it is interpreted as table because the intention was
really to give the table which has always been used by
the testator as a bed. This is a case where an ordinary
term is given another meaning because of the intention of
the testator.

4. When two or more things/properties meets the

description.
EXAMPLE: GMA provided in her will, I hereby give my
land in Calinan to FPJ. There is nothing wrong here.
When it turns out that GMA has 2 lands in Calinan, so
there lies the ambiguity. You do not know which of the 2
lands is being given.
(2) PATENT OR EXTRINSIC AMBIGUITY (2nd clause)
appears on the face of the will itself. By just looking
at the will you know that there is an imperfection, or
mistakes or an ambiguity.
EXAMPLES:
1. I hereby give to A some of my properties. What
are those properties being given? By just looking at
the will, you know that there is something wrong with
this disposition.
2. I hereby give to some of my friends my house and lot
in Ma-a. There is an ambiguity because, although
the property is specified, the recipient is not
designated.
How do you cure this ambiguity?
1. Intrinsic Evidence You cure the ambiguity by
examining the will. You examine the words used in
the will. In the example given, John Doe but actually
it refers to Jane Doe, a female.
2. Extrinsic Evidence evidence which you get when you
go beyond the will, you investigate, and look for
documents or for persons.
Q: How about Oral/Parole Evidence? Is it allowed to clear
up ambiguity?
A: No, because this will open the door to fraud. Anybody
would just appear and say that the property was really
intended to him or her. You are not sure if this person is
telling the truth. It is very easy to fabricate statement
because the testator is no longer alive to dispute the
claim.
Article 790. The words of the 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 the will was drawn
solely by the testator, and that he was
unacquainted with such technical sense.

Technical Term
GENERAL RULE: Give it a technical meaning.
EXCEPTIONS:
(1) If the testator himself made the will and it is very
clear that he is unacquainted or unfamiliar with the
term Wills drafted by experts like lawyers are
construed more strictly than those made by ordinary
laymen.
(2) If it is really the intention of the testator to give the
technical word an ordinary meaning. (contrary
intention)
If after using all the legally feasible means of
interpretation, the rules of interpretation, the rules on
construction, but still you cannot determine, what really is
the intention of the testator with respect to his doubtful or
ambiguous provision. What do you do? In that case, then
you have to discard the provision. Do not give it effect. It
is invalidated by reason of its ambiguity which can never
be interpreted reasonably. That provision which is
ambiguous is void.
Article 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 presented which
will prevent intestacy
Two parts: (1) the will must be interpreted as a whole; and
(2) testacy is favored over intestacy (this is true only if
the will has been validly made)
Note: If in the course of intestate proceedings, it is found
that the decedent left a will, proceedings for the probate
of the will should replace the intestate proceedings (in the
same court), even if at that stage, an administrator had
already been appointed, the latter being required to
render his final accounts and to turn over the estate to
the executor subsequently named. This is without
prejudice to the fact that if, the will be disallowed, the
intestate proceedings should be resumed.

Ordinary Term

Article 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
dispositions had not been made.

GENERAL RULE: give it an ordinary or literal meaning.

Effect of Invalid Dispositions

13
(a) Even if one disposition or provision is invalid, it does
not necessarily follow that all the others are also
invalid.
(b) The exception occurs when the various dispositions
are indivisible in intent or nature.
If one provision of the will is invalid, that does not mean
that the entire will itself becomes invalid. If there are valid
provisions, then those valid provisions or dispositions
must be given effect, as long as the valid and invalid
dispositions in a will can exist separately or independently
of each other. However, there is an exception: if the
various dispositions in a will CANNOT BE SEPARATED BY
INTENT OR NATURE. If one provision is invalid, then the
whole dispositions in a will are invalid because the several
dispositions in a will are not separable by intent or by
nature.
Article 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.
Properties acquired after the time that the will is made
but before the moment of death of the testator.
GENERAL RULE: Only those properties owned by the
testator at the time of the execution of the will are
included. So those acquired after the execution of the will
are excluded.
EXCEPTIONS:
1. If the testator expressly provides in his will that
properties acquired AFTER the execution of the will
are included
Example:
1980 ------------- 1985 -------------- 1987 -------------1995
Bldg. in Jacinto
executed
bldg in
A died
will in favor of X
Ponciano
In 1980, A acquired a building in Jacinto. In 1985, A
executed a will leaving to X the building in Jacinto. In
1987, A again acquired another building in Ponciano. In
1995, A died.
Q: Upon As death in 1995, what property of A was given
to X?
A: Under Art. 793, all properties acquired at the time of
the execution of the will or before, NOT AFTER. In this
case, X only had a right over the building in Jacinto which
was given to him in 1980, but not the building in Ponciano
which was given to him in 1987 because this building in
Ponciano was acquired after the execution of the will in
1985.
1980 ----------1985 ----------1987 ----------1995 ----------1998
Bldg. in
executed a
leased bldg to
A died
settlement
Jacinto
will in favor several persons
proceeding
of X
P50T/month
In 1980, A acquired a building in Jacinto. In 1985, A
executed a will leaving to X the building in Jacinto. In
1987, A begun leasing the building in Jacinto to several
persons P50T a month. In 1995, A died.

Q: What will X get upon the death of A?

A: X will get the building in Jacinto because of article 793.
Q: How about the rent from 1987 to 1995? Can X get the
proceeds?
A: No, again under article 793 because this rental income
is acquired after the execution of the will. Another thing,
from the time A gave the building in favor of X in 1985 by
virtue of a will, X still does not have any right over the
building because A was still alive. So whatever rights he
has over the rent is purely inchoate.
But after 1995 during the settlement of the estate of A, X
gets the monthly rental UNDER ART 781 of the NCC. From
the moment of death of A, the building becomes owned
by X. So the right of X to the building has ripened and as
owner of the building, all the income, the accessories and
accessions over the building accrued in favor of X who is
now the owner.
2. If the will is republished or modified by a subsequent
will or codicil (in which case, the properties owned at
the time of such republication or modification shall be
given). (Art. 836).
3. If at the time the testator made the will he
erroneously thought that he owned certain properties,
the gift of said properties will not be valid, unless after
making the will, said properties will belong to him.
(Art. 930).
4. Legacies of credit or remission are effective only as
regards that part of the credit or debt existing at the
time of the death of the testator. (Art. 935, par. 1).
Q: Does this article apply only to heirs, to legatees or
devisees, or to all?
A: The article does not make any distinction. However,
this would seem to destroy the testators intent. For
example, in 1985, A executed a will stating, I hereby give
all my properties to my heir X. In 1987, A acquired some
other properties. In 1995, A died. So what properties
belong to X, only the properties before the execution of
the will or also those properties after the execution of the
will? Heirs succeed to ALL the rights, properties and
obligations of the testator. Therefore, if X is an heir and A
acquires properties after the execution of the will still
upon As death, X as heir will get all the properties of A
because A said, I hereby give all my properties to X. As
heir, there is no distinction whether before or after the
execution of the will. It would seem wise, therefore, to
apply the Article only to legatees and devisees.
Article 794. Every devise or legacy shall convey all
the interest which the testator could devise or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest.
This article this will also apply to heirs even if the law
speaks only of the legatee or devisee.
GENERAL RULE: All of the testators rights in a property
are transmitted. Because it is presumed that the testator
intended to dispose his whole interest in the property.
EXCEPTIONS:
(a) He can convey a lesser interest if such intent clearly
appears in the will. (Art. 794).
(b) He can convey a greater interest, thus, the law
provides If the testator owns only a part of, or an
interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest,

14
UNLESS the testator expressly declares that he gives
the thing in its entirety. (Art. 929).
(c) He can even convey property which he very well know
does not belong to him (See Arts. 930 and 931),
provided that it also does not belong to the legatee or
devisee. (Art. 937).
Note: If the testator thought the property was his,
although it is not really his, the legacy or devise is
void, unless the property subsequently becomes his.
Article 795. The validity of a will as to its form
depends upon the observations of the law in force
at the time it is made.
Kinds of Validity With Respect to Wills
1. Extrinsic validity refers to the forms and solemnities
and the formalities that have to be conformed and
complied with in the execution of the will. (Ex: whether
notarial
or
holographic;
number
of
witnesses;
qualifications of witnesses; attestation in the will;
signature of the testator; capacity of the testator, age
etc.)

which was the Civil Code of 1889. When the testator dies
during the effectivity of the Civil Code, that means the
intrinsic validity of his will shall be governed by the Civil
Code.
Example: The testator had an illegitimate child named Y
with X. So this child was born when the testator had an
existing marriage with Z. In 1940, when the Civil Code
was not yet effective, the testator made a will instituting
his wife Z as the sole heir of all his estate. The testator
died without children.
Q: If the testator died before the effectivity of the Civil
Code, will the provision in his will instituting the wife as
the sole heir and omitting the illegitimate child to the
inheritance valid? Is the will intrinsically valid?

Example: In 1805 only two witnesses are required in the

execution of the will but now it is at least three. Even if
the testator dies now, that will, with respect to its
extrinsic validity will still be regarded as valid because
compliance is measured in 1805 at the time when he
made his will, not in year 2004.

A: Under the old Civil Code 1889, illegitimate children

who are not natural, meaning they were born when their
parents had legal impediments to marry each other, are
not entitled to inherit. Y here is an illegitimate child. When
his father, the testator, died before the effectivity of the
Civil Code, the law that should govern the intrinsic validity
of the will of the testator instituting his wife as the sole
heir would be the law at the time when the New Civil
Code was not effective. Inasmuch as before the effectivity
of the Civil Code, the illegitimate child who is not natural
has no right to inherit, the will of the testator becomes
intrinsically valid. But if the testator died after the
effectivity of the Civil Code, let us say 1960, the will
would not be intrinsically valid because the Civil Code
provides for certain rights of illegitimate children even if
they are not natural children. They are entitled to succeed
to one-half of the share of the legitimate children.

Note: The legislature cannot validate a void will because

the extrinsic validity of wills is measured at the time of
the execution of the will. No amount of amendment of the
law can cure the defect.

b. From the viewpoint of PLACE or COUNTRY the

national law of the decedent, that is, the law of his
country or nationality (Art. 16) regardless of the
place of execution or the place of death.

b. From the viewpoint of PLACE or COUNTRY

what law must be observed depends:
i.
If the testator is a Filipino, he can observe
Philippine laws (Arts. 804-814); or those in the
country where he may be (Art. 815); or those in
the country where he executes the will (Art. 17)
(lex loci celebrationis or locus regit actum).
ii.
If the testator is an alien who is abroad, he can
follow the law of his domicile, or his nationality or
Philippine laws (Art. 816) or where he executes the
will. (Art. 17).
iii.
If the testator is an alien who executed a will in the
Philippines, he can follow the law of his nationality
(Art. 817) or the laws of the Philippines, since he
executes the will here. (Art. 17).

Under Article 16, intestate and testamentary successions,

both with respect to the (1) order of succession; (2) to the
amount of successional rights; and (3) to the intrinsic
validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is under
consideration. So the intrinsic validity of testamentary
provision should be governed by the national law of the
person whose succession is under consideration.

a. From the viewpoint of TIME what must be

observed is the law in force at the time the will is
MADE (executed). (Art. 795).

2. Intrinsic validity refers to the legalities of the

provisions of wills. (Ex: Example: whether or not the
disposition in favor of the concubine is valid; whether
or not there is preterition; whether there is invalid
disinheritance; whether there has been payment of
the legitime; whether there is omission of compulsory
heirs; etc.)
a. From the viewpoint of TIME successional rights
are governed by the law in force at the time of the
decedents death. (Art. 2263).
When the testator dies prior to the effectivity of the Civil
Code, then his rights to the succession over his estate
shall be governed by the laws enforced at that time,

Q: Article 16 talks about the national law of the person

whose succession is under consideration. What do you
mean here by National law? In certain countries like the
Philippines, we have what we call internal law and conflict
law. Under our internal law, the Civil Code for example in
succession is basically the internal law governing
succession. But Article 16 of the Civil Code is our Conflict
Law. We know what laws govern in the Philippines but we
do not know what laws govern abroad. So what is national
law, is it internal law or the conflict law?
A: If the deceased was a citizen of California but was
domiciled in the Philippines at the time of death, we
ordinarily should apply California law; but since California
conflict rules provide that the successional rights shall be
governed by the law of the place of domicile i.e., the
Philippines we should apply our internal law on wills
and succession to avoid international football. In effect,
we would be accepting the RENVOI (the return or the
referring back to us of the problem).
Pagadto sa

15
California, Conflict law. Pagbalik sa Philippines, internal
law.
BONA vs. BRIONES
Facts: Bona, the widow by the second marriage of the
deceased Francisco Briones who died on August 14, 1913,
applied for the probate of the will which said deceased
husband on September 16, 1911, executed during his
lifetime. The legitimate children by the first marriage of
the testator opposed the probate of the will.
Held: The will in question was executed by Francisco on
September 16, 1911 and the order denying probate was
rendered on March 27, 1915, both dated being prior to
that of Act No. 2645, which amended section 618 of Act
No. 190, and took effect only on July 1, 1916. The
requisites established by Act No. 2645 cannot be required
in the probate of the will, inasmuch as this document was
executed in September, 1911, five years before said
amendatory law began to take effect (July 1, 1916), while
the testator died on August 14, 1913, two years and some
months before the enforcement of said law. The only law
applicable to the case is section 618 of Act No. 190. In
accordance with the provisions of this section, the said
will should be probated; for it has been presented to the
court many months before the amendatory act went into
effect.
IN RE: WILL OF RIOSA
Facts: Riosa died on April 17, 1917 and left a will made in
the month of January, 1908. The will was duly executed in
accordance with the law then in force, section 618 of Act
No. 190. The will was not executed in accordance with Act
No. 2645, prescribing certain additional formalities for the
signing and attestation of wills, in force on July 1, 1916.
Held: The law existing on the date of the execution of a
will controls, that is section 618 of Act No. 190. All
statutes are to be construed as having only a prospective
operation unless the purpose and intention of the
Legislature to give them a retrospective effect is
expressly declared or is necessarily implied from the
language used. In every case of doubt, the doubt must be
resolved against the restrospective effect. The language
of Act No. 2645 gives no indication of retrospective effect.
Distinguish the two cases: In BONA vs. BRIONES, the
death of the testator and the execution of the will was
both prior to the enactment of Act No. 2645. The law
applicable is section 618 of Act No. 190. While in IN RE:
WILL OF RIOSA, the will was executed prior to the
enactment of Act No. 2645 and the death occurred after
the enactment of said law. The law existing on the date of
the execution, which is section 618 of Act No. 190, shall
govern.

TESTAMENTARY CAPACITY AND INTENT

1. Testamentary capacity the capacity of the person
to make a will provided certain conditions are
complied with; namely that the testator is not
prohibited by law to make a will (Art. 796); that the
testator is at least 18 years of age (Art. 797); and that
the testator be of sound mind at the time of the
execution of the will (Art. 798), soundness of mind
being present when the testator knows the nature of
the estate to be disposed of, the proper objects of his

bounty, and the character of the testamentary (Art.

799).
Testamentary power is the statutory right to
dispose of property by acts effective mortis causa (a
right given usually as a consequence of ownership
and respect for family relations).
2. Active testamentary capacity (testamentary
power) capacity to make a will or codicil
Passive testamentary capacity (testamentary
capacity) capacity to receive by virtue of a will
3. Testamentary capacity the ability of one to make
a will.
Testamentary power the privilege granted by the
law to someone to make a will.
Article 796. All persons who are not expressly
prohibited by law may make a will.
General Rule is capacity, exception is incapacity.
Two general qualifications:
(1) 18 years old or over;
(2) soundness of mind at the time the will is made.
A convict under civil interdiction is allowed to make a will.
This is because civil interdiction prohibits a disposition of
property inter vivos, not mortis causa.
Spendthrifts or prodigals, even if under guardianship, can
make a will provided they are at least 18 years old and
are of sound mind.
Article 797. Persons of either sex under eighteen
years of age cannot make a will.
1. Spanish law a person should have passed his 18th
birthday before he can make a will. (we follow Spanish
concept)
2. American law a person can make a will on the day
just before his 18th birthday, on the ground that by
that time, 18 years shall have passed.
Note: An individual, though a minor (less than 21), may
still make a will and the consent of his parents is not
required. But if he is less than 18, his will is VOID whether
or not parental consent had been obtained.
Article 798. In order to make a will it is essential
that the testator be of sound mind at the time of
its execution.
It should be observed that the soundness of mind must
exist at the time of the execution of the will, not before or
after.
Article 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.
Testamentary capacity is the capacity to comprehend
the nature of the transaction which the testator is
engaged at the time, to recollect the property to be

16
disposed of and the person who would naturally be
supposed to have claims upon the testator, and to
comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.
The first paragraph gives the negative definition of
soundness of mind. Just because a person has paralysis
and loss of speech, cholera, insomnia, diabetes, sleeping
sickness or Addisons disease, cerebral hemorrhage
affecting half of the body, deafness, blindness, poor
memory, it does not follow that he was of an unsound
mind at the time he executed the will.
BAGTAS vs. PAGUIO paralysis
Facts: The will was propounded by Bagtas, widow of
decedent, and the opponents are a son and several
grandchildren by a former marriage. The basis of the
opposition is that that the testator was not in the full of
enjoyment and use of his mental faculties and was
without the mental capacity necessary to execute a valid
will. The testator suffered from a paralysis of the left side
of his body. He retained the use of his right hand,
however, and was able to write fairly well.
Held: Paguio was of sound mind when he executed his
will. The presumption of mental soundness is well
established, and the testator in the case at bar, never
having been adjudged insane by a court of competent
jurisdiction, this presumption continues. The law does not
require that a person shall continue in the full enjoyment
and use of his pristine physical and mental powers in
order to execute a valid will. Perfect soundness of mind is
not essential to testamentary capacity. A testator may be
afflicted with a variety of mental weaknesses, disorders,
or peculiarities and still be capable in law of executing a
valid will. To constitute a sound and disposing mind, it is
not necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or otherwise, or
that the testator should be in the full possession of his
reasoning faculties. Neither age, nor sickness, nor
extreme distress, nor debility of body will affect the
capacity to make a will, if sufficient intelligence remains.
Even the failure of memory is not sufficient to create the
incapacity, unless it be total, or extend to his immediate
family or property.
The second paragraph gives the affirmative definition.
Soundness of mind requires:
(a) that testator knows the nature of the estate to be
disposed of (character, ownership of what he is
giving) he must have sufficient recollection of his
property, and know what properties she owned at that
time or what properties she does not own.
(b) that testator knows the proper objects of his bounty
(by persons who for some reason expect to inherit
something from him like his children) he must
know who are the persons by virtue of law who may
he is oblige to provide for, like his children or his
spouse.
(c) that testator knows the character of the testamentary
act (that it is really a will, that it is a disposition mortis
causa, that it is essentially revocable)
Testamentary Incapacity
General Rule: Testamentary Incapacity invalidates the
whole will.
Exception: If the incapacity proceeds from a delusion on
a particular subject and the product of such delusion
might be declared invalid without affecting other portions

of the will. For example, Lancelot believes that Arthur is

Jesus Christ. By reason of that belief, Lancelot gives to
Arthur all of his land so that Arthur may give his land to
the poor. This belief that Arthur is Jesus Christ is a
RELIGIOUS DELUSION and the disposition in favor of
Arthur by reason of this delusion becomes invalid. If
there are other disposition in the will in favor of the
children or the wife, that will not be affected. Only the
portion which arises out of the belief that Arthur is Jesus
Christ.
BUGNAO vs. UBAG
Facts: Catalina applied for the probate of the last will and
testament of her deceased husband, Domingo. The
probate was contested by the brothers and sisters of the
deceased, who would be entitled to share in the
distribution of his estate, if probate were denied. They
contend that Domingo was not of sound mind and
memory, and was physically and mentally incapable of
making a will. Two of the subscribing witnesses testified in
support of the will.
Held: Domingo was mentally capable of making the will
as established by the testimony of the subscribing
witnesses. Mere weakness of mind, or partial imbecility
from the disease of body, or from age, will not render a
person incapable of making a will; a weak or feeble
minded person may make a valid will, provided he has
understanding memory sufficient to enable him to know
what he is about, and how or to whom he is disposing of
his
property.
Testamentary
incapacity
does
not
necessarily require that a person shall actually be insane
or of an unsound mind. Weakness of intellect, whether it
arises from extreme old age from disease, or great bodily
infirmities or suffering, or from all these combined, may
render the testator incapable of making a valid will,
providing such weakness really disqualifies her from
knowing or appreciating the nature, effects, or
consequences of his acts.
GALVEZ vs. GALVEZ cholera
Facts: Canuta Galvez, the testator's daughter, alleged
that her father, owing to his very serious sickness with
cholera, lacked the intellectual capacity and clear
judgment requisite for making a will.
Galvez had capacity to execute his will. Although the
testator was ill with cholera, since he demonstrated that
he had sufficient energy and clear intelligence to execute
his last will in accordance with the requirements of the
law, his case must been an exception the general rule
that cholera patients, in majority of cases, become
incapacitated.
LOPEZ vs. TORRES senile dementia
Facts: Opposition was entered by Margarita Lopez, the
first cousin of the deceased Tomas Rodriguez. One of the
grounds was that the testator lacked mental capacity
because at the time of execution, the testator was
diagnosed of senile dementia and was under
guardianship.
Held: The mental capacity of the testator is determined
as of the date of the execution of his will. There is one
particular test relative to the capacity to make a will
which is of some practical utility. This rule concerns the
nature and rationality of the will. In the case at bar, the

17
will was short. It could easily be understood by a person
in physical distress. While for some months prior to the
making of the will, he had not managed his property, he
seemed to have retained a distinct recollection of what it
consisted and of his income. The testator may have been
of advanced years, may have been physically decrepit,
may have been weak in intellect, may have suffered a
loss of memory, may have had a guardian and may have
a been extremely eccentric, but he still possessed the
spark of reason and of life, that strength of mind to form a
fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary
capacity."

Held: At the time of the making of the will, deceased

Pascual de la Cruz was blind and had been for a number
of years, and was incompetent to make the will in
question. The deceased was of sound mind when he
executed the will. There is absolutely no proof to show
that the deceased was incapacitated at the time he
executed his will. No presumption of incapacity can arise
from the mere fact that he was blind. The only
requirement of the law as to the capacity to make a will is
that the person shall be of age and of sound mind and
memory.

celebral

Article 800. The law presumes that every person is

of sound mind, in the absence of proof to the
contrary.

Held: The testatrix did not have the testamentary

capacity to execute the will. The supposed testatrix, at
the time the will was executed, was not in a condition
such as to enable her to have participated in the act, she
being in fact at that time suffering from paralysis to
celebral hemorrhage in such degree as completely to
discapacitate her for intelligent participation in the act of
making a will.

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.

LIM vs. CHINCO apoplexy, incident to cerebral

hemorrhage / coma

The presumption is that the testator is of sound mind.

Because there is a presumption that the testator is of
sound mind, the burden of proving otherwise, rests upon
the person who opposes the probate of the will.

ABQUILAN vs.
hemorrhage

ABQUILAN

paralysis

to

Facts: The deceased was about 80 years of age at the

time of her death. She was stricken with apoplexy,
incident to cerebral hemorrhage, and was taken in an
unconscious condition, seated in a chair, to her room.
Upon examining the patient, the physician found her
insensible and incapable of talking or controlling her
movements. She was taken to the hospital, where she
died. The purported will was prepared by Perfecto Gabriel,
a practicing attorney, whose wife appears to be related to
the chief beneficiaries named in the will.
Held: The testatrix had no testamentary capacity at the
time the will was executed. The deceased was in a
comatose condition and incapable of performing any
conscious and valid act. The patient was in a continuous
state of coma during the entire period subsequent to the
attack, and that she did not have sufficient command of
her faculties to enable her to do any valid act when she
was in the hospital.
HERNAEZ vs. HERNAEZ old age
Facts: Testatrix Doa Juana Espinosa was over 80 years
of age and was so ill that three days before she had
received the sacraments and extreme unction, and that
two days afterwards, she died. Prior thereto she walked in
a stooping attitude, and gave contradictory orders, as a
result of her senile debility.
Held: The testatrix was mentally capacitated to make the
will. The fact that on old woman gives contradictory
orders, that she walks in a stooping position, that she has
fainting fits, that she received the sacraments some days
before making her will, are circumstances which even if
fully demonstrated by proof could no lead the court to
establish a conclusion contrary to the mental soundness
of a person who is to be presumed to be in the full
enjoyment of the mental faculties until the contrary is
conclusively proven.
AVELINO vs. DELA CRUZ blind

Two Instances when the testator is presumed insane:

(a) If the testator, one month or less before making the
will was publicly known to be insane (here, the person
proponent who maintains the wills validity must
prove that the will was made during a lucid interval).
(Art. 800, par. 2)
(b) If the testator made the will after he had been
judicially declared insane, and before such judicial
order had been set aside.
(c) When the testator has Insanity of a general or
permanent nature shown to have existed at one time.
How do you establish evidence of soundness of
mind?
1. You may use the testimony of the notary public.
In notarial wills, notary public intervenes in the
acknowledgement of the will. So as a general rule, the
testimony of the notary public is entitled to great
weight. An exception is where the statements of the
notary public is far from satisfactory, vague, evasive
and tend to beg the very issue.
2. The testimony of the attesting witnesses. In
notarial wills, there are at least 3 attesting witnesses.
They attest the testators signing the will and they
attest that the testator was of sound mind at the time
of executing the will. So if the attesting witnesses
testify that the testator is of sound mind, then this
testimony is entitled to great weight. But it is just
required that this testimony must be reasonable and
unbiased, and this testimony may be overcome by
other competent evidence.
3. The testimony of the attending physician. This
testimony should be given the highest regard but
subject to the condition that the physician was
present at the time of the execution of the will. The
testimony of the physician who is absent at that time
of the execution may be overcome by the testimony
of the attesting/subscribing witnesses.

18
Article 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
Q: When insane, T made a will. Later, he became well, but
he did not change the will. Is the will valid?
A: No, because his becoming capacitated later on is not
important. What is important is that his mind was not
sound at the time he executed the will.

provisions on the law on wills consists in the liberalization

of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator.

WILL MUST BE IN WIRITING

Note: If you are publicly known to be insane one month or
less before the execution, you are presumed to be insane.
But if you are actually sane or actually in your lucid
interval during that time, the execution of the will is valid
even though there is a presumption of insanity.
Article 802. A married woman may make will
without the consent of her husband, and without
the authority of the court.
Article 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.
What can the married woman or man disposed of in a
will?
1. He/she may dispose of his/her separate property; or
2. He/she may dispose of his/her share in the
conjugal/community property.
Q: The law says that the wife can dispose of her share of
the conjugal property. Suppose she disposes of, say, the
conjugal house, how will this affect the inheritance?
A: It depends. Ordinarily, the heir gets only half of the
house, but if in the liquidation proceedings the house is
awarded entirely to the wifes estate (the husband
receiving some other property, like cash), the heir gets
the whole house.
Q: What happens if either spouse disposes of the entire
community property? Is the disposition valid?
A: The disposition is only valid with respect to the portion
pertaining to the share of the spouse who is the testator.
The remaining portion becomes invalid. But if the spouse
knows that he or she has no right to dispose of the share
or his or her spouse but still he or she provides in the will
that such portion or the entire portion be given to a
certain person, it is valid. What is to be done is for the
estate to acquire the other portion. But the spouse should
know that the other half is not owned by her/him and
despite such knowledge, he or she still gives the property
to the person in its entirety.

FORMS OF WILLS
Kind of Wills
(a) Ordinary or notarial will that which requires,
among other things, an attestation clause, and
acknowledgment before a notary public. This will is
ordinarily executed with the aid of a lawyer. There are
witnesses and an attestation clause.
(b) Holograph or holographic will the most
important feature of which is its being written entirely,
from the date to the signature, in the handwriting of
the testator. Here, neither an attestation clause nor an
acknowledgment before a notary public is needed.
Liberalization in the formalities required the
underlying and fundamental objective permeating the

Article 804. Every will must be in writing and

executed in a language or dialect known to the
testator.
Q: Who should write the will or who should do the
mechanical act of writing the will?
A: Ideally, it should be the testator himself. But in
notarial wills, the mechanical act of writing the will may
be delegated to a 3rd person or to a lawyer as long as the
will is signed by the testator himself or by some other
person under his express direction and in the presence of
the testator. If the testator is going to execute a
holographic will, the mechanical act of writing the will
cannot be delegated to any other person. It must be the
testator himself who should write his own will.
The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has
acted or been charged, and has, thus, acquired
knowledge of the handwriting of such person.
Handwriting experts are usually helpful in the
examination of forged documents, but resort to these
experts is not mandatory or indispensable to the
examination or the comparison of handwriting, and
because the judge must conduct an independent
examination of the questioned signature in order to arrive
at a reasonable conclusion as to its authenticity. The
opinions of handwriting experts, although helpful in the
examination of forged documents because of the
technical procedure involved in the analysis, are not
binding upon the courts. Resort to these experts is not
mandatory or indispensable to the examination or the
comparison of handwriting.
Q: It is evident in Article 804 that Oral Wills are not
allowed. But what is a Nuncupative wills?
A: Nuncupative Wills are wills orally made by testator in
contemplation of death and before competent witnesses.
Because Article 804 provides that wills should be in
writing, then nuncupative wills are not recognized in the
Philippines.
Q: In what language should the testator execute his will?
A: Again under article 804, it must be in am language or
dialect known to the testator. The will itself may contain
several languages, as long as all of the languages/dialect
are known and understood by the testator.
So the
testator need not be proficient in the language used. He
need not know the correct grammar as long as he
understands the language.
The presumption is that the testator knew the language
used in writing the will. This presumption may be rebutted
by contrary evidence. Because of this presumption:

19
1. There is no statutory requirement that the will should
allege that the language used therein is understood
by the testator;
2. No need to state in the Attestation clause that the will is
in the language or dialect known to the testator;
3. That the will is in a language known to the testator can be
proved by extrinsic evidence or even by parol or oral
evidence. Take note that ambiguities cannot be
proven by oral evidence but here, knowledge of the
language can be proved by parol or oral evidence.
4. If the will is executed in the locality where the testator
lives, it is presumed that indeed the testator during
his lifetime knew or understood the language or
dialect in that locality.
Q: What if the testator did not know the language or
dialect in which the will was written but it was
subsequently interpreted or explained to him? Will it cure
the lack of previous knowledge or understanding of the
language or dialect as written on the will?
A: Interpretation or explanation will not cure the defect.
The testator must know the language or dialect. No
amount of interpretation or explanation will cure the
defect.
Q: How about with respect to the attesting witnesses,
because notarial will are attested by at least 3 witnesses.
Should these witnesses know the language or dialect in
which the will is written?
A: No. They are not required to know the language used
in the body.
Q: How about the attestation clause?
A: It is not required that these witnesses know or
understand the attestation clause because there is a
requirement that if they do not know the language or
dialect in the attestation clause, it shall be explained to
them. Primarily, they should know, but if they do not
know, it is enough that the language or dialect is
explained or interpreted to the witnesses. In the same
manner that the testator need not know the language in
the attestation clause because the attestation clause is
the declaration made by at least three witnesses. The
testator has no concern whatsoever with this attestation
clause.
Q: Is it important to place in the will the date of the
execution?
A: With respect to notarial or ordinary will, the date is not
an important requirement for as long as it is made during
the lifetime of the testator.
But the date becomes
material when there are 2 or more wills. So that you will
know which of the wills was executed ahead and which
was executed later because in the law on succession,
there is revocation. If there are two or more of wills and
each do not bear a date, the date may be established by
EXTRINSIC EVIDENCE or EVIDENCE ALIUNDE.
Q: How about holographic will?
A: In holographic will the date is very important because
holographic wills are written, dated and signed in the
hand of the testator. Any disposition after the date
becomes invalid unless the other dispositions bear
another date.
Q: How about electronic document? Are wills covered by
electronic evidence law?
A: No. First, the electronic evidence refers to contract
instruments. A will is not a contract. Second, wills must be
handwritten, for example in holographic wills. E-

documents are not handwritten, they are produced by

means of computers.
ACOP vs. PIRASO
Facts: Deceased Piraso executed a will in Baguio. Piraso
knew no other language than the Igorrote dialect, with a
smattering of Ilocano. But the will was drawn in English.
Evidence shows that Piraso knew how to speak the
Ilocano dialect, although imperfectly and could make
himself understood in that dialect.
Held: It has been proved that Piraso did not know English,
in which language the alleged will is drawn. Nor can the
presumption in favor of the will, that the testator is
presumed to know the dialect of the locality where he
resides, unless there is proof to the contrary, even he
invoked in support of the probate of said will, because, in
the instant case, not only is it not proven that English is
the language of the City of Baguio where the deceased
Piraso lived and where the will was drawn, but that the
record contains positive proof that said Piraso knew no
other language than the Igorrote dialect, with a
smattering of Ilocano; that is, he did not know the English
language in which the will is written.
TESTATE ESTATE OF THE LATE ALIPIO ABADA vs.
ABAJA
Facts: Abada and Toray died without legitimate children.
Alipio Abaja filed a petition for the probate of the last will
of Abada. Caponong opposed on the ground that Abada
left no will when he died. Alipio filed another petition for
the probate of the last will and testament of Toray.
Caponong filed a petition praying for the issuance in his
name of letters of administration of the intestate estate of
Abada and Toray.
Held: Caponong asserts that the will of Abada does not
indicate that it is written in a language or dialect known
to the testator. Caponong's argument, that the will must
be disallowed on the ground that nowhere in the will can
one discern that Abada knew the Spanish language, must
fail. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used
in the will.
Article 805. Every will, other than a holographic
will, must be subscribed at the end thereof by the
testator himself or by the testators 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 the pages

20
thereof in the presence of the testator and of one
another.

LOPEZ vs. LIBORO The fact that the testator knew the
wills language need not appear on the face of the will.
Extrinsic evidence is allowed to prove this.

If the attestation clause is in a language not known

3. The will must be subscribed (signed) at the end
to the witnesses, it shall be interpreted to them.
thereof by the testator himself or by the testators
name written by another person in his presence,
Q: How do you construe this article, liberally or strictly
and by his express direction.
construed?
A: The requirements stated in Article 805 are strictly
construed.
Q: What is the purpose of these strict requirements?
A: According to the Supreme Court, the purpose is to
close the door against fraud, to avoid substitution and to
insure the authenticity of wills. In Article 788 of the NCC,
it talks about liberal construction or interpretation. But
what is in question in Article 788 are doubts or
ambiguities in a will. These doubts must be liberally
construed in favor of the validity of wills. Testacy is
favored over intestacy. Article 805 talks about the
extrinsic validity of wills. It does not concern about the
dispositions
or
ambiguities,
but
all
about
formalities/solemnities. When you go to the extrinsic
validity of wills, these are strictly construed.
Requirements for a Notarial or Ordinary Will
1. The will must be in WRITING (handwritten, typed, or
printed; material on which it is written is immaterial).
Note that the validity of a will is not affected by its having
been written on poor stationery, or its non-preparation by
an attorney or the absence of copies.
2. The will must be executed in a language or dialect
known to the testator. If the testator resides in a
certain locality, it can be presumed that he knows the
language or dialect in said locality. Naturally, it is useless
to avail of this presumption if the will is not written in the
dialect of the locality. Moreover, the presumption is only
prima facie, and therefore, the contrary may be proved.
Thus, it may be shown, for example, by proof in court that
the testator was really ignorant of the language of the
community or locality, or of the language in which the will
had been written. The fact that the testator knew the
wills language need not appear on the face of the will.
Extrinsic evidence is allowed to prove this. Where the
formal requisites for the validity of the will have been
satisfactorily
established,
except
the
language
requirement, the parties should be afforded, in the
interest of justice, an opportunity to present evidence, if
they so desire, on this controverted issue.
ABANGAN vs. ABANGAN It is alleged the records do
not show that the testarix knew the dialect in which the
will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in
the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which
this will is written.
ACOP vs. PIRASO It can be presumed that the testator
knows the language or dialect in a locality where he lives.
But it is useless to avail of this presumption if the will is
not written in the dialect of the locality. Moreover, the
presumption is only prima facie, and therefore, the
contrary may be proved. Thus, it may be shown, for
example, by proof in court that the testator was really
ignorant of the language of the locality, or of the
language in which the will had been written.

Q: What do you mean by under the express direction of

the testator?
A: It means that the person who signs the will in behalf of
the testator must be EXPRESSLY authorized. Express not
implied. So by word of mouth or by action, the testator
merely indicates to the proxy a desire to have his name
signed to the instrument. The testators mere knowledge
or consent that his name was being signed for him or his
acquiescence in such an act or a mere implied assent to
the signing of another person is NOT sufficient to meet
the requirement of express direction.
Q: What is being signed or subscribed or affixed by the
testator or by the person signing in his behalf?
A: What should be signed is the customary signature or
the testator or any mark actually intended as a signature.
Any mark, thumbmark, a rubber stamp, or a mere cross is
allowed.
Q: What if the testators name is misspelled? A: Is it
valid? YES
Q: How about initials or abbreviations? A: Both are valid.
Q: How about assumed name? A: Valid if the testator
customarily used that assumed name in her transactions.
Q: What if the writing is illegible? A: It is valid as long as it
is the signature of the testator.
Q: How about E-signature under the E-Commerce Act?
A: E-signature is supposed to be attached to or logically
associated with the e-data message or e-document or any
methodology or signatures employed, adopted or
executed by such a person with the intention of
authenticating or approving an e-message or an edocument. So it is for the purpose of authenticating an edocument or an e-message (e-message is an information
sent or generated by means of computer or whatever
technology.)
Q: Can you consider a will an e-message or e-document?
A: A will cannot be considered an e-message or an edocument, thus, you cannot affix an e-signature in the
will. Under E-commerce Act, e-signatures are affixed or
stamped to transactions or contracts. A will is not a
transaction or contract. Moreover, if a will should be
signed by the testator, it must be handwritten, especially
if it is a holographic will. E-signature is not a handwritten
mark.
Q: How should the signature may be affixed? Should it be
the testator himself without any guide by anybody?
A: The testators hand may be guided or steadied in the
act of signing if the testator for example is suffering from
physical weakness, as long as it is the testators own
volition to affix his signature in the will.
GUISON vs. CONCEPCION The person signing for the
testator does not even have to put his own name. All the
law requires is that he puts the name of the testator. If he
puts down his name and omits that of the testator, this
would mean a substantial violation of the law and would
render the will invalid.

21
IN RE: WILL OF SIASON The will ended in this way: "At
the request of Seora Maria Siason." The will is still valid,
even if the testators signature formed part of the phrase
of the will. The name of the testatrix immediately follows
the testament itself, and precedes the names of the
witnesses.
MACAPINLAC vs. ALIMURONG The will stated: "At the
request of the testatrix, Da. Simplicia de los Santos, I
signed. For Simplicia de los Santos. Amando de Ocampo."
The posterior insertion of the words For Simplicia de los
Santos cannot affect the validity of the will. Such
signature for the testatrix is considered as if she signed
the will, and also the signature of the witness who, at her
request, wrote the name of the testatrix and signed for
her, affirming the truth of this fact, attested by the other
witnesses then present.
YAP TUA vs. YAP KA KUAN The one who makes a will
may sign the same by using a customary mark, the name
having been written by others. If the testatrix did not sign
her full name, but she did sign her given name without
the surname, that is sufficient.
SOLAR vs. DIANCIN The requirement of the statute
that the will shall be "signed" is satisfied not only by the
customary written signature but also by the testator's
thumbmark.
AMATA vs. TABLEJO Where the mind of the testator is
in perfectly sound condition, neither old age, nor ill
health, nor the fact that someone had to guide his hand in
order that he might sign, is sufficient to invalidate his will.
ABAYA vs. ZALAMERO The correct formula for a
signature is ought to be followed, but it does not mean to
exclude any other form substantially equivalent. A
testator can sign with a mere cross if he intends that to
be his signature. Even if the witness, whom the testator
requested to write his name and surname at the end of
his will, did not affix his own signature immediately below
the name and surname of the testator and the cross
placed by the latter with the words "by request of the
testator," the will is still valid because the reason why it
was not signed by the testator was clearly stated in the
will, and a repetition was not necessary.

may be signed in the following manner: "John Doe, by the

testator, Richard Roe;" or in this form: "By the testator,
John Doe, Richard Roe."
EX PARTE JUAN ONDEVILLA The testatrix could not
sign at the time she executed the will and requested one
named Fructuoso Llenaresa to sign on her behalf, which
the latter did by writing her name and signing at the foot
of the document as follows: For Pascuala Olaguer,
Fructuoso Llenaresa. The law does not prescribe the
specific form in which the name of the testator should be
affixed at the foot of the will when written at his request
by another person. The only thing required by law is that
the will shall bear the name of the testator.
BARUT vs. CABACUNGAN It is unimportant whether
the person who writes the name of the testatrix signs his
own or not. The important thing is that it clearly appears
that the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they
attested and subscribed it in her presence and in the
presence of each other.
BOLONAN vs. ABELLANA The law requires that the
testator himself sign the will, or if he cannot do so, the
testators name must be written by some other person in
his presence and by his express direction. It is
unimportant whether the person who writes the name of
the testatrix signs his own or not. The name of the
testatrix, Anacleta Abellana, does not appear written
under the will by said Abellana herself, or by Dr. Juan
Abello, the person requested to write testator's name.
There is, therefore, a failure to comply with the express
requirement in the law.
CALUYA vs. DOMINGO All the law requires is that the
person requested puts the name of the testator.
NEYRA vs. NEYRA The thumbmark placed by the
testatrix on the agreement and will in question is
equivalent to her signature.
FERNANDEZ vs. DE DIOS If the last page contains
only the attestation clause, the testator need not sign on
the margin.

4. The will must be attested and subscribed by three

or more credible witnesses in the presence of the
LEARIO vs. LEANO The placing of the cross opposite
testator and of one another.
the testators name at the conclusion of the instrument
was sufficient compliance with the requirements of the
ATTESTATION
SUBSCRIPTION
law, which prescribes that except where wills are signed
Consists
in
witnessing
the
The
signing
of
the
by some other person than the testator in the manner
testators
execution
of
the
witnesses
name
upon
the
and form therein indicated, a valid will must be signed by
will in order to see and same
paper
for
the
the testator. It is the right of a testator to sign by mark,
take
note
mentally
that
purpose
of
identification
of
executed anima testandi.
those things are done such paper as a will
which the statutes require executed by the testator.
GARCIA vs. LACUESTA When somebody else signs the
for the execution of the
testators name for him, the mere placing by the testator
will and that the signature
of a cross after his name, without there being in the will a
of the testator exist as a
statement that somebody has signed for the testator, is
fact.
not sufficient, and the will is considered void, not because
The mental act of the Mechanical act of the
of the cross, but because of the failure to state the
senses. You see, smell, hand.
signing of name by somebody else.
feel etc.
IN RE: WILL OF TAN DIUCO Somebody else may write
The purpose is to render The
purpose
is
the testators name for the latter, provided this is done in
available proof of the identification.
the latters presence and at the latters express direction.
authenticity of the will and
The person writing for the testator should not be one of
its due execution.
The act of the witnesses.
May be the act of the
the three witnesses. Of course, if there be more than
testator when the testator
three witnesses, one of them may sign for the testator.
signs the will or the
EX PARTE ARCENAS Where a testator does not know
witnesses if the witnesses
how, or is unable for any reason, to sign the will himself, it
affixed their signature in

22
To attest a will is to know
that it was published as
such and to certify the
fact required to constitute
an
actual
or
legal
publication.

the will.
To subscribe a paper
published as a will is only
to write on the same
paper then names of the
witnesses for the sole
purpose of identification.

JAVELLANA vs. JAVELLANA For the purpose of

determining the due execution of a will, it is not
necessary that the instrumental witnesses should give an
accurate and detailed account of the proceeding, such as
recalling the order of the signing of the document by the
said witnesses. It is sufficient that they have seen or at
least so situated at the moment that they could have
seen each other sign.
GABRIEL vs. MATEO As long as the signing is done
within the presence of one another, it really does not
matter much whether the witnesses signed ahead of or
after the testator as testator as long as the signing is
sufficiently contemporaneous, or whether or not they
signed with the same pen and ink. In either case, the will
is valid.
ANDALIS vs. PULGUERAS Six pages of the will were
signed on the margin by the testator and two of the
witnesses on January 4, 1931. On January 11, 1931, the
remaining three pages were signed by the testator and
the three attesting witnesses, and that the third attesting
witness then signed the first six pages. The execution of
the will was not in conformity with the law. The execution
is supposed to be one act and cannot be legally effective
if the various participants sign on various days and in
various combinations of those present.
5.
GILLESANIA vs. MENESALVAS There were six
witnesses. Five of the six witnesses signed the said will at
the request of the testator, in the presence of the testator
and in the presence of each other. One of the witnesses,
the first to sign the will, immediately left the room where
the will was executed, and did not see the other
witnesses sign the said will. When three of the witnesses
signed at the request of the testator and in his presence
and in the presence of each other, the requirements of
the law were thereby complied with. The mere fact that
there were six witnesses to the said will and that one of
them did not see the others sign is not sufficient to
invalidate the said will when the other requirements of
the law are satisfied.
JABONETA vs. GUSTILLO The fact that he was in the
act of leaving, and that his back was turned while a
portion of the name of the witness was being written, is of
no importance. It is sufficient if the witnesses are together
for the purpose of witnessing the execution of the will,
and in a position to actually see the testator write,
without any physical obstruction, if they choose to do so.
The true test of vision is not whether the testator actually
saw the witness sign, but whether the testator might have
seen the witness sign, considering his mental and
physical condition and position at the time of the
subscription. This principle and the tests of presence as
between the testator and the witnesses are equally
applicable in determining whether the witnesses signed
the instrument in the presence of each other.
NERA vs. RIMANDO If there is a curtain separating the
testator and some witnesses from the other witness
there would be a physical obstruction, and the will cannot
be valid. But the position of the parties with relation to

each other at the moment of the subscription of each

signature must be such that they may see each other sign
if they choose to do so. The question whether the testator
and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend
upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each
of them, but that at that moment, existing conditions and
their position with relation to each other were such that
by merely casting the eyes in the proper direction they
could have seen each other sign.
NEYRA vs. NEYRA It has been fully shown that said
witnesses were present, at the time of the signing and
execution of the agreement and will in question, in the
sala, where the testatrix was lying on her bed. The true
test is not whether they actually saw each other at the
time of the signing of the documents, but whether they
might have seen each other sign, had they chosen to do
so; and the attesting witnesses actually saw it all in this
case.
CUEVAS vs. ACHACOSO The fact that the three
instrumental witnesses have signed the will immediately
under the signature of the testator, shows that they have
in fact attested not only to the genuineness of his
signature but also to the due execution of the will as
embodied in the attestation clause.
CALDE vs. CA The signing of a will on separate
occasions makes the will invalid. The signatures of some
attesting witnesses were in blue ink, while the others
were in black.
The testator or the person requested by him to
write his name, and the instrumental witnesses of
the will shall sign each and every page thereof
except the last, on the left margin.
Q: What do we call witnesses who signed on the left hand
margin of each and every page?
A: They are called the marginal witnesses. But these
marginal witnesses are also the subscribing witnesses
because they sign the attestation clause and in addition,
they also sign the left hand margin of each and every
page of the will. These witnesses are also the credible
witnesses because they must have the qualifications
describe by law in order for them to be a witnesses in the
will. They are also called instrumental witnesses
because they are witnesses to the instrument. The
attesting witnesses must be the same person who should
sign the left hand margin. The attesting witnesses are the
subscribing, marginal, and instrumental witnesses.
Otherwise, if you have different witnesses for each
purpose, the will is void.
Note: The last page need not be signed on the margin,
since the signatures already appear at the end. (It is
wrong to say that the last page needs no signature at all.)
Q: What is the purpose of the signing the left-hand
margin of the will?
A: The purpose is identification of the pages used and to
prevent fraud.
Q: What do you mean by each and every page?
A: Meaning, the page itself. A paper has 2 pages, the
front page and the back page. So, if you have one sheet
of paper and it has dispositions in front and dispositions
at the back, each side must signed (front and back). The

23
law says page not sheet. A one sheet of paper has two
pages.

ICASIANO vs. ICASIANO The inadvertence of one of

the witnesses where he forgets to sign a page of a will
should not be taken against the testator where the
identity of the testament and its component pages is
sufficiently attained. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account
of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law
to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.

Q: What if there is no signature on the first page of the

will?
A: GENERAL RULE: absence of signature on the first page
of the Will, invalidates the will.
EXCEPTIONS:
1. If the will contains only one page, then logically that
one page already has the signature of the testator
because he is required to sign at the end of the
disposition and that also contains the signatures of
the witnesses in the attestation clause.
2. Inadvertent lifting pages.
6. All the pages shall be numbered correlatively in
letters placed on the upper part of each page.
ABANGAN vs. ABANGAN Each and every sheet of the
will should be signed on the left margin by the testator
What is the purpose of numbering the pages of the will?
and three witnesses in the presence of each other to
1) To guard against fraud;
guard against fraud, to avoid the substitution of any of
2) To forestall any attempt to suppress or substitute any
said sheets, and to know whether any sheet of the will
of the pages;
3) To afford means of detecting the loss of any of its
has been removed. But when these dispositions are
pages;
wholly written on only one sheet signed at the bottom by
4)
To prevent any increase or decrease in the pages.
the testator and three witnesses, their signatures on the
left margin would be completely purposeless.
IN RE: ESTATE OF SAGUINSIN It is not enough that
the signatures guaranteeing authenticity should appear
only on several pages of a will, the authenticity of all
should be guaranteed with the signature of the testator
and witnesses. A sheet has two pages, the front and
reverse side. If both are used, both must be paged. In the
case, this requirement is entirely lacking on the second
page that is, on the reverse side of the first. The three
signatures together with that of the alleged testatrix are
written on the left margin of the first page or folio and on
the third page or second folio, but not on the second page
or reverse side of the first page. This failure to comply
with the law vitiates the will and invalidates it, as the
second page is lacking in authenticity.
AVERA vs. GARCIA Whenever the marginal signatures
are required, although the law says left margin, the
purpose is served if they are on the right, top, or bottom
margin, for the only purpose is to identify the pages
used, and thus prevent fraud.
NAYVE vs. MOJAL As each and every page used of the
will bears the signatures of the testator and the
witnesses, the fact that said signatures do not all appear
on the left margin of each page does not invalidate the
will.
IN RE: WILL OF PRIETO The omission of the attesting
witnesses to sign with the testator at the left margin of
each page is fatal defect which invalidates a will and it is
not enough that the testator alone should sign at the left
margin of each page.

LOPEZ vs. LIBORO The will in question comprises two

pages, each of which is written on one side of a separate
sheet. The first sheet is not paged either in letters or in
Arabic numerals. The omission to put a page number on
the first sheet, if that be necessary, is supplied by other
forms of identification more trustworthy than the
conventional numerical words or characters. The
unnumbered page is clearly identified as the first page by
the internal sense of its contents considered in relation to
the contents of the second page.
NAYVE vs. MOJAL Paging with Arabic numerals and not
with letters is within the spirit of the law and is just as
valid as paging with letters. A, B, C, or Page 1,
Page 2, Page 3, would be sufficient.
FERNANDEZ vs. DE DIOS The document states "the
will consists of three sheets, BESIDES that of the clause
itself," which is in singular, it is clear that such a sheet of
the attestation clause is the fourth, and that the will,
including said sheet, has four sheets. This description
contained in the clause in question constitutes substantial
compliance with the requirements prescribed by the law
regarding the paging.
MARTIR vs. MARTIR In the absence of collusion or
fraud and there being no question regarding the
authenticity of the first page and genuineness of the
signatures appearing thereon, the mere fact that the first
sheet is unnumbered is not sufficient to justify the
invalidation of the will.
ALDABA vs. ROQUE Although the law requires that
each page of the will be paged in letters, that is, that the
words one, two, three, etc., be written on each page
to indicate its correlation, nevertheless the use of the
letters A,B,C, etc., to indicate paging is a sufficient
compliance with the law, if it shows the correlation of the
pages and the latter are signed by the testator and the
witnesses in the manner required by law.

ESTATE OF TAMPOY vs. ALBERASTINE The

requirement that the testator sign the will and each and
every page thereof in the presence of the witnesses, and
that the latter sign the will and each and every page
thereof in the presence of the testator and of each other
is MANDATORY in view of the well-settled rule that
Statutes prescribing the formalities to be observed in the
execution of wills shall be strictly construed. Hence, even 7. The attestation (attestation clause) shall provide:
1) the number of pages used upon which the
if the second page bears the signature or thumbmark of
will is written;
the testator, but absent on said first page, the will cannot
2) that the testator signed (or expressly
be admitted to probate.
caused another person to sign) the will and

24
every page thereof in the presence of the
instrumental witnesses;
3) that the instrumental witnesses witnessed
and signed the will and all the pages thereof
in the presence of the testator and of one
another.

part therein, as they saw the testator sign the will, or the
person requested by him to sign all the sheets of the will
and affirm that it was signed under his express direction
in the presence of said witnesses, and that all the sheets
thereof had also been signed by them in the presence of
said testator and of each of them.

Attestation Clause is that clause of an ordinary or notarial

will wherein the witnesses certify that the instrument has
been executed before them and the manner of the
execution of the same. It is a separate memorandum or
records of the facts surrounding the conduct of execution
and once signed by the witnesses it gives affirmation to
the fact that compliance with the essential formalities
required by law has been observed.

CALUYA vs. DOMINGO If the attestation clause is

defective, or even absent, the will is nevertheless valid
provided it is satisfactorily proved that it was in fact
signed and executed as provided by law.

The Attestation Clause is a declaration by the witnesses.

It is not a declaration of the testator. Because it is the
declaration of the witnesses, there is no requirement that
the signature of the testator should appear in the
attestation clause. It is the witnesses that should know
the recitals in the attestation clause. But it is not required
that the witnesses should know the recitals of the will.
Strictly speaking, the attestation clause is not part of the
will because the Attestation Clause contains no
dispositions.
Q: What is the purpose of Attestation Clause?
A: To preserve in permanent form a record of the fact
attending the execution of the will. So that in case of
death, absence, or failure of memory of the subscribing
witnesses or casualties, the due execution of the will may
still be proved.
What do the subscribing witnesses attest to?
1. They attest to the genuineness of the signature of
the testator because these witnesses should be
present when the testator signed the will;
2. They attest to the due execution of the will
meaning they know or see that when he testator
executed the will, the testator was of sound mind,
legal age etc.
Note: Attestation Clause is mandatory in notarial or
ordinary wills. The absence of Attestation Clauses in
notarial wills makes the will void. But in Holographic wills,
there is no requirement that it should contain an
Attestation Clause.
ABANGAN vs. ABANGAN In a will consisting of two
sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator
and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the
three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the
witnesses, or be paged.
IN RE: WILL OF TAN DIUCO In dealing with
attestation, the law does not say that instrumental
witnesses must be different from those who signed the
attestation clause, for under section 618, after speaking
of the signature of the testator or the person signing in
his place, it adds and attested and subscribed by three
or more credible witnesses in the presence of the testator
and of each other, from which it clearly follows that the
same witnesses who signed on the left margin of each
page of the document presented by the testator to them
as his will, must be the ones who should sign the
attestation clause, inasmuch as they alone can certify the
facts to be stated in said clause, for having taken a direct

NAYVE vs. MOJAL Even if the number of sheets or

pages composing the will is not stated in the attestation
clause, when it appears at the end of the will, then there
can be no doubt that it complies with the intention of the
law that the number of sheets of which the will is
composed be shown by the document itself, to prevent
the number of the sheets of the will from being unduly
increased or decreased.
FERNANDEZ vs. DE DIOS While the text of the
attestation clause must state compliance with the
requirements prescribed for the will, it does not mean
that to express it, same words used in the statute must
be employed for if the fact appears in any manner
intelligible from the attestation clause, the latter would be
sufficient and valid.
TESTATE ESTATE OF PILAPIL Even if the attestation
clause does not state the number of pages upon which
the will was written, the will is still valid if the number of
pages is stated in the will itself and on the same page
wherein the attestation clause appears written.
VILLAFLOR vs. TOBIAS The writing of the attestation
clause on a separate page will not invalidate the will if it
can be shown that if the clause had been written on the
last page, there would not have been sufficient space on
that last page for the signatures of the witnesses to the
clause.
IN RE NEUMARK There must be an attestation clause
and that it must express the material matters mentioned
in the foregoing quotation with substantial accuracy for a
will to be valid. The absence of the attestation clause is a
fatal defect.
IN RE: TESTATE OF CAGRO An unsigned attestation
clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom
thereof negatives their participation.
IN RE: ANDRADA The failure of the attestation clause
to state the number of pages is a fatal defect. However,
even if not in the attestation itself, if the number of pages
is put down somewhere else in the will, as long as no
evidence aliunde or extrinsic evidence is required, there is
deemed a substantial compliance with the law.
TESTATE ESTATE OF PAULA TORAY Without the
statement that the testator signed the will in the presence
of the witnesses, the attestation clause is fatally
defective; and it is signed by the witnesses, not the
testator. This defect is not cured by proof aliunde even if
there are witnesses who can testify in court as to this fact,
their testimony should be excluded or even by a judicial
finding based upon such proof that the testator did in fact
sign the will in the presence of the witnesses.

25
TABOADA vs. ROSAL Even if the attestation clause
failed to state the number of pages but the entire will is
discernible to have such number of pages two pages
(the first containing the provisions, and the second, both
the attestation clause and the acknowledgment), the will
is still valid. Attestation vs. Subscription: Attestation
consists in witnessing the testators execution of the will
in order to see and take note mentally that those things
are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact.
On the other hand, subscription is the signing of the
witnesses names upon the same paper for the purpose of
identifying such paper as the will which was executed by
the testator.
LEYNEZ vs. LEYNEZ The purpose of the attestation
clause is to preserve in permanent form a record of the
facts attending the execution of the will so that in case of
failure of the memory of the subscribing witnesses, or any
other casualty, they may still be proved.
UNSON vs. ABELLA The fact that the inventory is
referred to in the will as an integral part of it, such
documents or inventories do not need any attestation
clause, because the attestation clause of the will is
sufficient.
CANEDA vs. CA Omissions which can be supplied by an
examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and would
not invalidate the will. The defects in the attestation
clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textural
requirements were actually complied with in the
execution of the will. Further, the attestation clause of an
ordinary or attested will, which does not form part of the
testamentary disposition, need not be written in a
language or dialect known to the testator.
ECHAVEZ vs. DOZEN CONSTRUCTION An attestation
clause and an acknowledgment cannot be merged in one
statement. The requirements of attestation and
acknowledgment are embodied in two separate provisions
of the Civil Code (Articles 805 and 806, respectively),
which means that the law contemplates two distinct acts
that serve different purposes. An acknowledgment is
made by one executing a deed, declaring before a
competent officer or court that the deed or act is his own.
On the other hand, attestation of a will refers to the act of(1)
instrumental witnesses who certify to the execution of the
instrument before them and to the manner of its
execution.

coerces the testator and the instrumental witnesses to

declare before an officer of the law that they had
executed and subscribed to the will as their own free act
or deed.
Acknowledgment It is statement made by the notary
public that the testator and the witnesses have personally
come before him and that they affirm that the will or the
attestation clause is voluntarily signed by them and that
they understood what the will or the attestation clause is
all about. The acknowledgment is not signed by the
testator and the witnesses. It is only signed by the notary
public who signs the same. Because it is not required that
the acknowledgment is done in the presence of the
testator and of each and every witness then
acknowledgment need not be done in a single day like the
signing of the will. It could be on separate occasion.
Jurat that part of an affidavit whereby the notary
certifies that before him, the document was subscribed
and sworn by the executor.
Note: The notary public cannot one of the three
instrumental witnesses, referred to in the law. He is also
not required, not even allowed, to read the will, or to
know the contents of the will, unless the testator permits
him to do so. The only instance when the notary public is
required to read the will is in the case contemplated by
Art. 808 regarding a blind testator.
Q: What if the notary public is related to the testator or to
any of the 3 witnesses? Is the notary public qualified?
A: There is no such requirement under the law that you
should be related to any of the party under the Civil Code.
But under the new Notarial law which will take effect in
August 2004, you cannot be a party within the 4th civil
degree by affinity or consanguinity to document which
you are going to notarize.
Q: What if there is no acknowledgment in the notarial
will?
A: Because the acknowledgment is to safeguard against
fraud, its absence is a fatal defect and invalidates the will.
CRUZ vs. VILLASOR

Held: Atty. Teves, Jr. is one of the three instrumental

witnesses, and at the same time the Notary Public before
whom the will was supposed to have been acknowledged.
The last will and testament in question was not executed
in accordance with law since:
The notary cannot acknowledge before himself his having
signed the will. Consequently, if the third witness were
the notary public himself, he would have to avow
assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split
8. Acknowledgment before notary public. (Article
his personality into two; and
806)
(2) The function of a notary public is, among others, to guard
against any illegal or immoral arrangement. That
Article 806. Every will must be acknowledged
function would defeated if the notary public were one
before a notary public by the testator and the
of the attesting instrumental witnesses. For them he
witnesses. The notary public shall not be required
would be interested sustaining the validity of the will
to retain a copy of the will, or file another with the
as it directly involves him and the validity of his own
office of the Clerk of Court.
act. It would place him in inconsistent position and the
very purpose of acknowledgment, which is to
This article talks about the requirement of acknowledging
minimize fraud, would be thwarted.
the will by the testator and the attestation clause by the
witnesses before the notary public. Article 806, although
GANUELAS vs. CAWED
it states every will, it should be construed to be limited
only to notarial or ordinary wills because in holographic
Facts: Celestina executed a Deed of Donation covering
wills, there are no witnesses. The acknowledgment
parcels of land in favor Ursulina. A month later, Celestina

26
died without any surviving ascendants and siblings. After
Celestina's death, Ursulina had been sharing the produce
of the donated properties with Leocadia, et al., nieces of
Celestina. 24 years after the execution, Ursulina secured
tax declarations and refused to give private respondents
any share in the produce of the properties despite
repeated demands.
Held: Donation inter vivos is immediately operative even
if the actual execution may be deferred until the death of
the donor, while in donation mortis causa, nothing is
conveyed to or acquired by the donee until the death of
the donor. If mortis causa, the donation must be in the
form of a will, with all formalities for the validity of wills,
otherwise it is void and cannot transfer ownership. While
the deed contained an attestation clause and an
acknowledgment showing the intent of the donor to effect
a postmortem disposition, the acknowledgment was
defective as only the donor and donee acknowledged the
deed before the notary public. The attesting witnesses
failed to acknowledge before the notary public, thereby
rendering the entire document void.
ECHAVEZ vs. DOZEN CONSTRUCTION
Held: The attestation clause embodied in the
Acknowledgment does not contain the number of pages
on which the deed was written. Even granting that the
Acknowledgment embodies what the attestation clause
requires, an attestation clause and an acknowledgment
cannot be merged in one statement. The law
contemplates two distinct acts that serve different
purposes. An acknowledgment is made by one executing
a deed, declaring before a competent officer or court that
the deed or act is his own. On the other hand, the
attestation of a will refers to the act of the instrumental
witnesses themselves who certify to the execution of the
instrument before them and to the manner of its
execution. Although the witnesses in the case
acknowledged the execution of the Donation Mortis Causa
before the notary public, this is not the avowal the law
requires from the instrumental witnesses to the execution
of a will. In the absence of the required avowal by the
witnesses themselves, no attestation clause can be
deemed embodied in the Acknowledgement of the Deed
of Donation Mortis Causa.

to furnish a copy of the notarized will to the archives

division.
GUERRERO vs. BIHIS
Facts: The will was acknowledged by the testatrix and
the witnesses at the testatrixs home in Quezon City
before a notary public who was commissioned for and in
Caloocan City.
Held: The will is invalid. A notary publics commission is
the grant of authority in his favor to perform notarial acts.
It is issued within and for a particular territorial
jurisdiction and the notary publics authority is coextensive with it. In other words, a notary public is
authorized to perform notarial acts, including taking of
acknowledgments, within that jurisdiction only. Any
notarial act outside the limits of his jurisdiction has no
force and effect. In the case, the notary public was acting
outside the place of his commission, and this did not
satisfy Article 806.
TESTATE ESTATE OF THE LATE ALIPIO ABADA vs.
ABAJA
Held: Caponong maintains that the will is not
acknowledged before a notary public. This is embodied in
Articles 804 and 806 of the New Civil Code. Article 804 is
taken from Section 618 of the Code of Civil Procedure,
while Article 806 is taken from Article 685 of the Old Civil
Code. However, the Code of Civil Procedure repealed
Article 685 of the Old Civil Code. Under the Code of Civil
Procedure, the intervention of a notary is not necessary in
the execution of any will. Therefore, Abadas will does not
require acknowledgment before a notary public.
TESTATE ESTATE OF LEDESMA
Held: While testator and witnesses sign in the presence
of each other, all that is thereafter required is that "every
will must be acknowledged before a notary public by the
testator and the witnesses." The act of acknowledging
does not have to be contemporaneous. It does not even
have to be done in the presence of all of them, since the
law does not mention this as a requirement; neither does
the law require that acknowledgment of a will be made on
the same day.

LEE vs. TAMBAGO

Held: The will in question was attested by only two
witnesses. On this circumstance alone, the will must be
considered void. The Civil Code likewise requires that a
will must be acknowledged before a notary public by the
testator and the witnesses. A cursory examination of the
acknowledgment of the will in question shows that this
particular
requirement
was
neither
strictly
nor
substantially complied with. For one, there was the
conspicuous absence of a notation of the residence
certificates
of
the
notarial
witnesses
in
the
acknowledgment. Similarly, the notation of the testators
old residence certificate in the same acknowledgment
was a clear breach of the law. These omissions by
respondent invalidated the will. As the acknowledging
officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of
notarization. These formalities are mandatory and cannot
be disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents.
However, respondent was not under the legal obligation

Article 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 communicated to him, in some practicable
manner, the contents thereof.
If the testator is deaf or deaf-mute but he can read the
will, he is literate. But if the testator who is a deaf-mute
cannot read the will (illiterate), two persons must
communicate its contents to him. The two persons
designated need not be the attesting witnesses. It must
be proved in the probate proceedings that this Article has
been complied with. This is why it would seem wise to
state either in the notarial acknowledgment or in the
attestation clause itself that the Article has been complied
with. Yet, it is not essential to do so, as long as sufficient
proof (even extrinsic or parol evidence is enough) is
presented.
Article 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing

27
witnesses, and again, by the notary public before
whom the will is acknowledged.
The reading is twice
1) once by one of the subscribing witnesses; and
2) once by the notary public.
ALVARADO vs. GAVIOLA
Held: Article 808 applies not only to blind testators but
also to those who, for one reason or another, are
"incapable of reading their wills." Since Brigido was
incapable of reading the final drafts of his will on the
separate occasions of their execution due to "poor,"
"defective," or "blurred" vision, there can be no other
course but to conclude that Brigido comes within the
scope of the term "blind" used in Art. 808.
Article 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 not in fact executed and attested in
substantial compliance with all the requirements of
Article 805.
Substantial Compliance There is substantial
compliance when there has been an HONEST ATTEMPT on
the part of the testator to comply with the formal
requisites provided by law but the compliance is only
substantial and not literal but the purpose of the law is
substantially accomplished although not strictly followed.
What defects or imperfections are excused under article
809?
1. Defects/imperfections in the form of attestation clause;
2. Defects/imperfections in the language used in the
attestation clause.
Note: These 2 kinds of defects/imperfections are formal
defects. They are not defects of substance.
Requisites of Article 809:
1. The defects/imperfections refer to the form of the
attestation or the language used therein;
2. There is no bad faith, forgery or fraud, or undue or
improper pressure and influence;
3. The will was executed and attested in substantial
compliance with all the requirements; and
4. The fact of such execution and attestation is proved.
FERNANDEZ vs. DE DIOS

CANEDA vs. CA
Held: The phrase "and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each
and all of us" may, at first blush, appear to likewise signify
and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin." What is clearly lacking is
the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of
one another.
The absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in
the disallowance of the will that is here sought to be
admitted to probate. The aforestated defect in the
attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used
therein which would warrant the application of the
substantial compliance rule. The defect is not only in the
form or language of the attestation clause but the total
absence of a specific element required by Article 805 to
be specifically stated in the attestation clause of a will.
That is precisely the defect complained of in the present
case since there is no plausible way by which we can read
into the questioned attestation clause statement. The rule
on substantial compliance in Article 809 cannot be relied
on. Omissions which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal. However, those omissions
which cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation clause
and ultimately, of the will itself.

HOLOGRAPHIC WILLS
Article 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 witnesses.

Advantages of Holographic wills:

1.
easier to make; no need for a notary public to draft a
Held: The numbering of the sheet containing the
will for you.
attestation clause does not appear on the upper part of
2. easier to revise;
the sheet. However, it does appear with the words,
3. easier to keep secret because only you alone makes
"consisting of three sheets actually used, correlatively
your will.
enumerated, besides this sheet." If, as stated in this
clause, the foregoing document consists of three sheets,
Disadvantages:
besides that of the clause itself, which is in singular, it is
1. easier to forge;
clear that such a sheet of the attestation clause is the 2. easier to misunderstand; the testator may have
fourth and that the will, including said sheet, has four
difficulty expressing his wishes because if the testator
sheets. This description contained in the clause in
may be a layman, or grammatical errors.
question constitutes substantial compliance with the3. No guarantee that no fraud, no intimidation exerted upon
requirements prescribed by the law regarding the paging.
the testator or as to the soundness of mind of the
Furthermore, the law does not require that the sheet,
testator.
which contains nothing but the attestation clause, wholly
or in part, be numbered or paged. Consequently this lack
Requisites of Holographic Wills:
of paging on the attestation sheet does not take anything 1. The language must be known to the testator It is
from the validity of the will.
not sufficient that it be interpreted to him

28
2. It must be entirely written by the testator if it is
typewritten, printed, in a computer print-out, or
mimeographed, it is void. If the testator has no hands,
but can write with his foot, this would be all right,
since what the law requires is a personal
distinctiveness.
3. It must be dated in the hand writing of the testator
In case of a revision of the Will, that of later date
should be preferred as expressing truly the last will
and testament. If the date is not given, the will is null
and void. Although date should be the day, month and
the year, it can be determined by implication such as
Christmas day, which we know is Dec. 25, or
Valentines Day which is Feb. 14.
4. It must be signed in the hand writing of the
testator The full or customary signature is needed;
hence, the full name is not required.
5. It must be with animus testandi a will in the form of
a letter is all right, as long as the intent to leave a will
is clear, but a letter which incidentally contains
testamentary dispositions or probable property
dispositions cannot be considered a valid holographic
will.
6. It must be executed at the time that holographic
wills are allowed, not before, the time of death
being immaterial The extrinsic validity of a will
should be judged not by the law existing at the time
of the testators death nor the law at the time of
probate, but by the law existing at the time of the
execution of the instrument. This is because, although
the Will become operative only after the testators
death, still his wishes are given expression at the time
of execution.
Features of the Holographic Will:
(a) No witnesses are required.
(b) No marginal signatures on the pages are required.
(c) No acknowledgment is required.
(d) In case of any insertion, cancellation, erasure or
alteration, the testator must authenticate the same by
his full signature.
(e) May be made in or out of the Philippines, even by
Filipinos.
(f) May be made even by a blind testator, as long as he is
literate, at least 18, and possessed of a sound mind.
(g) Even the mechanical act of drafting a holographic will
may be left to someone other than the testator, as
long as the testator himself copies the draft in his own
handwriting, dates it, and signs it.

fraud, bad faith, undue influence and pressure and the

authenticity of the Will is established, probate of the
holographic Will should be allowed.
IN RE: LABRADOR vs. CA
Held: The first paragraph of the second page of the
holographic will states: And this is the day in which we
agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968,
and this decision and or instruction of mine is the matter
to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. The law
does not specify a particular location where the date
should be placed in the will. The only requirements are
that the date be in the will itself and executed in the hand
of the testator. These requirements are present in the
subject will.
SEANGIO vs. REYES
Held: Holographic wills, being usually prepared by one
who is not learned in the law, should be construed more
liberally than the ones drawn by an expert, taking into
account the circumstances surrounding the execution of
the instrument and the intention of the testator. The Court
is convinced that the document, even if captioned as
Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a
holographic will.
Article 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.
Probate The allowance of the will by the court after its
due execution is proved. In the probate of holographic
wills, the only issue here is the genuineness of the
signature of the testator, whether the will is in the hand
writing of the testator, or whether it is in the signature of
the testator.

The probate may be

Note: Thumbmark is not allowed in holographic wills 1) Uncontested If uncontested, at least one identifying
because it is not the writing of the testator. In a notarial
(not necessarily a subscribing) witness is required to
will, thumbmarks are allowed.
avoid the possibility of fraud. If no witness is available,
experts may be resorted to.
ROXAS vs. DE JESUS
2) Contested If contested, at least three such identifying
witnesses should be required. If none are available,
Facts: Opposition is interposed on the ground that the
experts may be called upon, otherwise the will of the
holographic will is fatally defective because of the date
testator may be frustrated thru no fault of his own. Upon
FEB/61 appearing on the holographic will.
the other hand, even if ordinary witnesses are available,
still if they are unconvincing, the court may still, and in
Held: The underlying and fundamental objective of the
fact should resort to handwriting experts. The duty of the
provisions of the law on the execution of holographic wills
Court, in fi ne, is to exhaust all available lines of inquiry,
consists in the liberalization of the manner of their
for the state is very much interested in carrying into
execution with the end in view of giving the testator more
effect the true intention of the testator.
freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of
Kinds of witnesses qualified to testify the hand writing of
fraud and the exercise of undue and improper pressure
the testator.
and influence upon the testator. This objective is in accord 1. A witness who has SEEN the testator write;
with the modem tendency with respect to the formalities2. Even if the witness has not seen the testator but that
in the execution of wills. As a general rule, the "date" in a
witness is FAMILIAR with the handwriting of the
holographic Will should include the day, month, and year
testator.
of its execution. However, when there is no appearance of

29
If there are no such witnesses because they are dead or
the witnesses presented are not so convincing, the court
may allow the presentation of expert witnesses (hand
writing expert). Expert testimonies are also allowed even
if the will is uncontested.
GENERAL RULE: The requirement of presenting an
expert witness is discretionary on the part of the court.
Especially when after the testimony of the witness who
knows the handwriting of the testator, the court is
convinced as to the authenticity of those wills. So there is
no requirement to present expert witnesses.
EXCEPTION: It is mandatory when, after the presenting
of witness who allegedly knows the hand writing of the
testator, the court is still not convinced as to the
authenticity and genuineness of the will. Thus, the court
should require expert testimony.
Note: If a holographic will has been lost or destroyed
without intent to revoke, and no other copy is available, it
can never be probated because the best and only
evidence therefor is the handwriting of the testator in said
will. Evidence of sample handwritten statements of the
testator cannot be admitted because there would be no
handwritten will with which to make a comparison. It is
believed however that a photostatic copy of the
holographic will may be allowed because here, there can
be a comparison. Evidently, the probate of a lost or
destroyed will referred to in the last paragraph of Art. 830
can only refer to a notarial, not a holographic will.
GAN vs. YAP
Facts: Felicidad died of heart failure. Gan initiated the
proceedings with a petition for the probate of a
holographic will allegedly executed by the deceased.
Opposing the petition, her surviving husband Ildefonso
asserted that the deceased had not left any will. The will
itself was not presented. Petitioner tried to establish its
due execution by the statements of witnesses.
Held: A holographic will cannot be probated based on the
testimony of witnesses who have allegedly seen it and
who declare that it was in the handwriting of the testator.
In holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no
witnesses. In probate of such wills, 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 witnesses shall be
required. In the absence of any witnesses, expert
testimony may be resorted to. The witnesses so
2.
presented do not need to have seen the execution of the
holographic will. However, when the will itself is not
submitted, these means of opposition and of assessing
the evidence are not available. This is not the same with
ordinary wills, which may be proven by testimonial
evidence when lost or destroyed. In holographic wills, the
only guarantee of authenticity is the handwriting itself;
3.
while in ordinary wills, theres the testimony of the
instrumental witnesses and of the notary. The loss of the
holographic will entails the loss of the only medium of
proof.
RODELAS vs. ARANZA

the holographic will has been lost or destroyed and no

other copy is available, the will cannot be probated
because the best and only evidence is the handwriting of
the testator in said will. A photostatic copy or xerox copy
of the holographic will may be allowed because
comparison can be made with the standard writings of the
testator.
CODOY vs. CALUGAY
Held: The word "shall" under Article 811 connotes a
mandatory order. This is to allow the court to determine
the authenticity and genuineness of the holographic wil,
and to prevent the possibility that some individual who for
their benefit will employ fraud just to defeat the wishes of
the testator. I the case, not all the witnesses presented
testified explicitly that they were familiar with the
handwriting of testator. There was also no opportunity for
an expert to compare the signature and the handwriting
of the deceased with other documents signed and
executed by her during her lifetime. A visual examination
of the holographic will convinced the Court that the
strokes are different when compared with other
documents written by the testator.
Article 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 disposition.
A testator may draft one part of a holographic will at one
time, and another part at another time. It may even
happen that the latter dispositions are made even after
the signature had been written. Only the dispositions
which do not contain a signature and date will be void,
the will itself will not be affected.
Article 813. When a number of dispositions
appearing in a holographic will are signed without
being dated, and the last disposition has a
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions.
1. If the last disposition is SIGNED and DATED
a) preceding dispositions which are SIGNED but NOT
DATED are validated.
b) preceding dispositions which are NOT SIGNED but
DATED are VOID. (This can be inferred from the
wording of the law.)
c) preceding dispositions which are NOT SIGNED and
NOT DATED are of course VOID, unless written on the
SAME date and occasion as the latter disposition.
If additional dispositions are written and signed by
another person without the consent of the testator
dispositions are VOID because they are not signed and
written by the testator. Only the additional dispositions
not written and signed by the testator are void but the
will itself is valid.
If written and signed by another person but with
the consent of the testator dispositions are still VOID
because as long as the testator does not affix his
signature and date, it is presumed that these dispositions
are not authenticated by the testator.

4. If these additional dispositions are written by

another person but signed and dated by the
Held: A holographic will which was lost or cannot be
testator Whole will is VOID because by affixing the
found can be proved by means of a photostatic copy. If
testators signature and the date, it is as if the additional

30
dispositions become part of
authentication by the testator.

the

will

due

to

the

Article 814. In case of any insertion, cancellation,

erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
Insertions,
cancellations,
erasures
or
alterations
mentioned in Article 814 are not per se prohibited as long
as they are authenticated by the full signature of the
testator. The purpose here is to forestall fraud because
the execution of the will is a personal act and so the
signature must be that of the testator and he alone can
authenticate whatever corrections that may be found in
the will.
Q: What happens if this insertions, erasure or cancellation
does not bear the signature of the testator?
GENERAL RULE: Only the erasure or insertion is void.
The entire will is still valid.
EXCEPTION: When this insertion, cancellation, erasure or
alteration is made in an essential part of the will. When
this insertion, cancellation, erasure or alteration will affect
the essence of the will, not only the insertion,
cancellation, erasure or alteration is void but the entire
will itself. If what was altered was the DATE or the
SIGNATURE, the alteration without the full signature
makes the whole will VOID.
KALAW vs. RELOVA
Facts: The holographic Will, as first written, named Rosa
Kalaw, a sister of the testatrix as her sole heir. Petitioner
Rosa opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full
signature of the testatrix Rosa's position was that the
holographic Will, as first written, should be given effect
and probated so that she could be the sole heir
thereunder.
Held: The original unaltered text should not be probated.
When there are erasures or alterations, the will is not
invalidated, but at most only as respects the particular
words erased, corrected or interlined. However, in this
case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting
the original heir with another, but which alteration did not
carry the requisite of full authentication by the full
signature of the testator. The entire Will should be voided
or revoked for the simple reason that nothing remains in
the Will after that which could remain valid. To state that
the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect
because she failed to authenticate it.
Article 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.
Example: A Filipino, if in California, can make a will there
in accordance with the forms (extrinsic validity) of:
(a) California
(b) Philippines (even if not recognized in California)
Q: If a will is probated abroad, does it have to be probated
again in the Philippines?

A: In one sense, there is no need of an ordinary or usual

probate here. What is required however is that there must
be a proceeding here to prove that indeed the will had
already been probated abroad. In other words, the rule is
the same as in proving the existence of a foreign
judgment. But if that will probated abroad contains
certain dispositions involving the properties found in the
Philippines, the will may be probated again in the
Philippines. That is called REPROBATE of will. Of course, if
the foreign will has not yet been probated abroad, a
probate must be had here, and this time proof must be
presented that indeed the will had been executed in
accordance with the law established in said foreign
country.
It should be observed that in the absence of contrary
proof, foreign laws on the formalities of a will are
presumed to be the same as those existing in the
Philippines. This is the Doctrine of Processual
Presumption. But if the will was already probated abroad
and it has again probated in the Philippines, you do not
only prove the existence of the foreign laws with respect
to the formalities of wills, but also you have to prove the
Procedural law on allowance and probate of wills of that
foreign country.
If the proponent of the will fails to prove the Procedural
Laws of that foreign country, the Doctrine of Processual
Presumption will not apply. The will should be denied
probate. You have to make a distinction between the
Extrinsic Law and the law of a foreign country as to its
procedure of probate.
Article 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.
Formalities for wills executed by aliens abroad An
alien abroad may make a will in accordance with the
formalities (extrinsic validity) prescribed by the law of:
(a) the place of his residence or domicile;
(b) his own country or nationality;
(c) the Philippines;
(d) the law of the place of execution.
Note: Article 816 speaks only of extrinsic validity. Intrinsic
validity is governed by Article 16. Article 17 should
supplement Article 816.
DE PEREZ vs. TOLETE
Facts: Dr. Jose Cunanan and his wife, Dr. Evelyn,
American citizens and residents of New York, each
executed a will also in New York, containing provisions on
presumption of survivorship (in the event that it is not
known which one of the spouses died first, the husband
shall be presumed to have predeceased his wife). Later,
the entire family perished in a fire that gutted their home.
Thus, Rafael, who was named trustee in Joses will, filed
for separate probate proceedings of the wills. Later,
Evelyns mother, Salud Perez, filed a petition for
reprobate in Bulacan. Rafael opposed, arguing that Salud
was not an heir according to New York law. Since the wills
were executed in New York, New York law should govern.
Before Salud could present evidence to prove the law of
New York, the reprobate court already disallowed the
wills.

31
Held: The respective wills of the Cunanan spouses, who
were American citizens, will only be effective in this
country upon compliance with Article 816. Thus, proof
that both wills conform with the formalities prescribed by
New York laws or by Philippine laws is imperative. The
necessity of presenting evidence on the foreign laws upon
which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial
notice of them. There is merit in petitioners insistence
that the separate wills of the Cunanan spouses should be
probated jointly. Since the two wills contain essentially the
same provisions and pertain to properties which in all
probability are conjugal in nature, practical considerations
dictate their joint probate. Further, Salud has always
considered herself the sole heir of Dr. Evelyn and because
she does not consider herself an heir of Dr. Jose, she
noticeably failed to notify his heirs of the filing of the
proceedings. The heirs of Dr. Jose are entitled to notices of
the time and place for proving the wills.
PALAGANAS vs. PALAGANAS
Facts: Ruperta, a Filipino who became a naturalized U.S.
citizen, died single and childless. In her last will she
executed in California, she designated her brother, Sergio
as the executor of her will for she had left properties in
the Philippines and in the U.S. Ernesto, another brother,
filed a petition for the probate of Rupertas will. Nephews
of Ruperta opposed the petition on the ground that
Rupertas will should not be probated in the Philippines
but in the U.S. where she executed it.

witnesses are allowed. The Philippine laws require three

witnesses.
Held: With respect to the formalities of his will, an alien
testator who executed his will in the Philippines may
observe the laws enforced in his country/nationality, or
under Article 17, the laws of the place where he executes
his will, which in this case is the Philippines. Whether
Johnson executed his will with two witnesses or with three
witnesses, his will may still be valid.
Article 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.
Joint wills are those which contain in ONE instrument the
will of two or more persons jointly signed by them.
Example: A and B, friends, made a will in one instrument,
making C their heir. (Joint wills are VOID.)
Reciprocal or Mutual Wills those that provide
that the survivor of the testators will succeed to all or
some of the properties of the decedent. Example: A made
a will making B his heir. B also made a will making A as
his heir. Mutual wills or reciprocal wills by themselves are
VALID, but if made in one instrument, they are void, not
because they are reciprocal, but because they are joint.
Reasons why joint wills are VOID:
(a) To allow as much as possible SECRECY, a will being a
purely personal act.
(b) To prevent undue influence by the more aggressive
testator on the other, such as in case of a husband
and wife, where one may be tempted to kill the other.
(c) In case of death of the testators at different times,
probate would be harder.
(d) It militates against the right of a testator to revoke his
will at any time. (Example: One testator would be
prevented from revoking by an overt act, like tearing
or burning, for the other may not agree.)
(e) It tends to convert a will into a contract.

Held: A will executed by a foreigner abroad may be

probated in the Philippines although it has not been
previously probated and allowed in the country where it
was executed. A foreign will can be given legal effects in
our jurisdiction under Article 816. Reprobate or reauthentication of a will already probated and allowed in a
foreign country is different from that probate where the
will is presented for the first time before a competent
court. In reprobate, the local court acknowledges as
binding the findings of the foreign probate court provided
Wills that are NOT joint wills:
its jurisdiction over the matter can be established. Also,
1. Those made on a single sheet of paper, the first on the
under the Rules of Court, if the decedent is an inhabitant
front, and the second on the reverse side. Example:
of a foreign country, the RTC of the province where he has
First/Front page, dispositions by A signed by A and the
an estate may take cognizance of the settlement of such
second/back page dispositions by B signed by B
estate. Therefore, the court can take cognizance of the2. Those made even on the same page with or without a
petition for probate of Rupertas will. But Ernesto must
dividing line between them, but neither combining the
submit the duly authenticated copy of the will and the
signature of BOTH together. Example: Dispositions
certified copies of the Laws of Succession and Probate of
made by A are on the upper part and on the lower
Will of California.
part are the dispositions made by B.
Article 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.
If a Chinese lives in Manila, he can follow the extrinsic
formalities of wills required:
(a) in China (Art. 817) lex nationalii
(b) or in the Philippines (Art. 17) lex loci celebrationis
IN RE: ESTATE OF JOHNSON
Facts: Johnson was a native of Sweden but a citizen of
America. He executed a will in the Philippines but with the
formalities prescribed by the laws of Illinois, in which two

Note: Reciprocal wills between a husband and wife, as

long as not made jointly, are valid. This is true even if the
same witnesses are used.
Under Article 819, wills executed by Filipinos in a foreign
country shall NOT be valid in the Philippines. For example,
in China joint wills are allowed. If a Filipino executes a will
in China, the general rule when it comes to the extrinsic
validity of wills is that he may follow the laws enforced at
the place of execution. But if he executed a joint will, that
will is void. That is the exception. This is because Article
818 and 819 are expressions of public policy, as provided
under Article 17, par. 3.
IN RE: WILL OF BILBAO

32
Held: The will in question was executed on a single page
or sheet by the deceased Victor, jointly with his wife
Ramona. A joint and reciprocal will particularly between
husband and wife is invalid. When a will is made jointly or
in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own
benefit or for that of third persons whom he or she desires
to favor. And, where the will is not only joint but
reciprocal, either one of the spouses who may happen to
be unscrupulous, wicked, faithless, or desperate, knowing
as he or she does the terms of the will whereby the whole
property of the spouses both conjugal and paraphernal
goes to the survivor, may be tempted to kill or dispose of
the other.
DACANAY vs. FLORENDO
Held: Such prohibition under Article 818 is directed
against the execution of a joint will, or the expression by
two or more testators of their wills in a single document
and by one act, rather than against mutual or reciprocal
wills, which may be separately executed.
Article 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.

(f) not have been convicted (by final judgment) of

falsification of a document; perjury; or false testimony
(Art. 821)
Sound Mind To be of sound mind, a testator must know
the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of his
testamentary act. But in witnesses, there are no
standards. As long as you can prove that you are not
insane, you are considered as sound mind. Again, there is
a presumption that a person is sane.
Domiciled in the Philippines This requirement is
imposed so that they may be readily available when their
testimonies are to be presented in court during the
probate of wills. Also, they are more or less acquainted
with the age and mental sanity of the testator. This
requirement applies only when the will is executed here in
the Philippines. Of course when you execute a will abroad,
it would be very difficult for you to find a person who is
domiciled in the Philippines. The will is valid when you
observed the laws of that country with respect to
witnesses. It is not essential that the witness be a citizen
of the Philippines, for domicile is what the law merely
requires. When you speak of Domicile, it is defined in
Article 50 of the Civil Code: For the exercise of civil rights
and the fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual residence.

If Joint Wills are executed by Filipinos abroad, even if it is

considered valid abroad Joint wills are not allowed in the
Philippines. This is one exception to the rule of lex loci
celebrationis.

There are 2 essential elements of domicile:

1. The fact of residing or physical presence in a fixed
place; and
2. The intention of remaining there (animus manendi or
intent to remain)

Q: What if a foreigner executes a Joint will?

A: If the foreigner executes a Joint will ABROAD under
article 17 and 816 of the NCC, it is allowed if he observes
the formalities allowed in the place where: (a) he resides;
or (b) he may be (Art. 17); or (c) of his nationality (Art.
816).

Not convicted (by final judgment) of falsification of

a document; perjury; or false testimony When you
are conviction of falsification of documents, perjury or
false testimony, your trustworthiness is in issue. When
you are witness to a will, your capacity to tell the truth is
important. Your credibility is important.

If the foreigner executes a joint will in the Philippines, it

seems that under Art. 817, it is valid. However, Art. 818,(a)
which refers to joint wills, and the rule of public policy
must prevail. So if he executes a joint will in the
Philippines, that should not be allowed in the Philippines.
(b)

Effect of Pardon
If the pardon was given because of the mans innocence,
as when somebody else had been proved to be the really
guilty person, he can now act as a witness to a will. This is
because there is no mental dishonesty.
If the absolute pardon was an act of Executive grace of
clemency, it is submitted that the disqualification
remains, for even an absolute pardon does not remove
civil consequences. The would-be witness still has a taint
of mental dishonesty.

WITNESSES TO WILLS
Article 820. Any person of sound mind and of the
age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write; may be a
witness to the execution of a will mentioned in
Article 805 of this Code.
Art. 821. The following are disqualified from being
witnesses to a will:
(3) Any person not domiciled in the Philippines;
(4) Those who have been convicted of falsification of a
document, perjury or false testimony.
Qualifications for Witnesses to Notarial Wills
(a) be of sound mind (Art. 820)
(b) be at least 18 years (Art. 820)
(c) be able to read and write (Art. 820)
(d) not be blind, deaf, or dumb (Art. 820)
(e) be domiciled in the Philippines (Art. 821)

Example: Even an absolute pardon granted a wife by the

Chief Executive, after a wife has committed the crime of
adultery, will not prevent the husband from instituting a
suit for LEGAL SEPARATION, as long as the prescriptive
period has not yet lapsed.
Disqualification of Notary Public Concerned The
notary public before whom the notarial will is
acknowledged is disqualified to be a witness to said will. It
would be absurd for him (as witness) to be acknowledging
something before himself (as notary public).
Article 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.

33
A testator needs to be of sound mind during the execution
of the will, disregarding the fact that he became insane
right before or right after. This is also the same rule
regarding witnesses. A witness must be competent at the
time of attesting the will. Afterwards, it is already
immaterial because as long as they have finished
attesting the will, their duties are already finished. Of
course, if the witness is incapacitated to testify at the
time of probate, he cannot testify as a witness. This does
not mean, however, that the validity of the will is
impaired by such fact.
Article 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
a 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 witness as if such devise or legacy had
not been made or given.
Observe that the persons named in the Article are
incapacitated to inherit, but not incapacitated as
witnesses. Hence, only the part appertaining to them
should be considered void. For example, if A is one of the
attesting witnesses, but in the will that he attests, he is
also given a gift of devise or legacy, a car or a land. Is he
disqualified to become an attesting witness? No. Only the
provision regarding said devise is void. As far as his
qualifications to become a witness, he is still qualified.
The same rule applies when the gift is given to the
spouse, child, or parent of that attesting witness, or
anyone claiming the right of said witness, spouse, parent,
or child.
However, this rule will not apply if there are more than
three attesting witnesses aside from the witness whom
the gift of legacy or devise is given. If there are four
witnesses, even if A is one of the attesting witnesses, and
a car is also given to him, he may still get the car because
the law only requires three witnesses. The presence of A
as additional witness becomes surplusage as if he is not
counted.
In voluntary heirs, the inheritance which they are to
receive under the will is void. Voluntary heirs are those
who receive by virtue of the liberality by the testator but
they do not receive something if the testator does not
provide for them. If the witness, spouse, parent or child
(of the witness) is a compulsory heir (as when the witness
is the child of the testator), said heir is still entitled to the
legitime, otherwise this would be an easy way to sort of
disinherit without any justifiable cause. If the children are
witnesses to the will and they are also given their
legitime, of course they may still get their legitime
because even if the testator will not provide for them in
his will, the law will give them the one-half. The
compulsory heir gets it as a matter of right.
What if the testator gives to the compulsory heirs threefourth? Applying Article 823, the one-half would still be
valid, but with respect to the one-fourth (free portion), it
is void. So if one-fourth or one-half of the free portion is
given, it is void because with respect to the free portion,
they are voluntary heirs.

Article 824. A mere charge on the estate of the

testator for the payment of debts due at the time
of the testators death does not prevent his
creditors from being competent witnesses to his
will.
For example, a testator has a creditor. The testator owes
the reditor 1M. In his will, he provides, I give 1M to
creditor. If the creditor will become an attesting witness,
is he disqualified? No, as long as he does not have the
disqualifications mentioned in Article 821 and he has all
the qualifications mentioned in Article 820.
How about the 1M given to the creditor by reason of the
debt? Will this be invalidated because the creditor
becomes an attesting witness? No. A mere charge on the
estate of the testator for payment of debts does not
prevent his creditors from being competent witnesses to
his will.

CODICILS AND INCORPORATION BY REFERENCE

Article 825. A codicil is a supplement or addition to
a will, made after the execution of a will and
annexed to be taken as a part thereof, by which
any disposition made in the original will is
explained, added to, or altered.
Codicil is derived from the Latin codex and literally
means a little code or a little will (although, of course,
physically it may be larger or longer than a will). A codicil
is part of the will. And because it is considered as part of
the will to which it is annexed, a codicil cannot exist on its
own. When you do not have the original will, you do not
have a codicil. A codicil, since it refers to a will, cannot be
made before a will; it is always made after. And it may
later on be revoked by another will or codicil.
General Rule: In case of conflict between a will and a
codicil, it is understood that the latter should prevail, it
being the later expression of the testators wishes
Q: If the original will is a notarial will, should the codicil be
also in the form of a notarial codicil?
A: No. When you executed first a notarial will, you may
execute a notarial codicil or holographic codicil and still it
is taken a part of the original will regardless of the form.
CODICIL
When you execute a
codicil after you execute a
will, the codicil is taken as
a part of the will.

The codicil explains, adds

to,
supplements,
and
alters the provisions in the
original will.
The codicil may revoke
only a PART of the original
will.
Because a codicil is taken
as a part of the original
will, then the original will
and the codicil are taken

NEW WILL
When
you
say
after
executing the first will,
you again execute another
will then the new will
exists independently of
the
original
will
and
without reference to the
original will.
Has no regard to the
previous will, it does not
explain, or add to, or
supplement the original
will. .
When you execute a new
will, the ENTIRE previous
will is revoke as a general
rule.
When you execute a new
will, they are separate.
The one revoking the
other.

34
as one.
Article 826. In order that a codicil may be effective,
it shall be executed as in the case of a will.
Two kinds of Codicil
1. Notarial Codicil follows the rules required by law for
notarial will.
2. Holoraphic Codicil follows the rules required by law for
holographic will.
The invalidity of the codicil will not affect the validity of
the will. As long as the will is executed in compliance with
all the requirements required by law, the will is valid
notwithstanding the invalidity of the codicil.
Article 827. if a will, executed as required by this 2.
Code, incorporation 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 number3.
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.

tomorrow. It is clear that the inventory will still have to

be executed. It is not valid.
Q: What happens to the will which incorporates into itself
the document which is not yet executed? Is the will
invalidated?
A: No, only the incorporation is invalid.
It is required under the 1st requirement that in the face of
the will itself, the reference is stated. The facts of the
reference must be stated. But it need not be stated that
the document being referred to is in existence at the time
of the execution of the will. The fact that it exists at the
time of the execution of the will can be proved by
Extrinsic evidence.
The will must clearly describe and identify
(locations, general appearance) the same, stating
among other things, the number of pages thereof.
Q: What about if the document is voluminous, 1000 +
pages?
A: Still there is a need to state the number of pages
because the law does not give any exception.
It must be identified by clear and satisfactory proof
as the document or paper referred to therein.
It must be proven that the document you are presenting
is the same document that is being referred to in the will.
This comes only during the probate of the will. How do
you prove that the documents are indeed the same
documents referred to in a will? It can be proved by
Extrinsic Evidence.

Rule on Incorporation by Reference A testator

wishes to incorporate to his will only by reference (i.e.,
4. It must be signed by the testator and the witnesses
without copying the whole thing) certain documents or
on each and every page, except in case of
papers, especially inventories and books of accounts.
voluminous books of account or inventories.
Thereby, the testator is able to save time and energy.
For example, the testator has an inventory of his property
and it consists of 10 pages. When the testator executes
his will and he wants his inventory of properties to form
part of his will, the testator need not copy the provisions
or contents of the 10-page inventory because if he should
not be allowed to just incorporate by reference the
inventory, it would be very exhausting for the testator to
execute his will.
General Rule: Only documents executed in compliance
with the requirements of law should be allowed probate.
Exception: Even if the requirements prescribe by law for
documents to be admitted to probate are not followed,
still the document may be admitted to probate. The
inventory need not be attested by subscribing witnesses
or contain an attestation clause.
Requisites for Validity of Documents Incorporated
by Reference
1. The document or paper referred to in the will must
be in existence at the time of the execution of the
will.
When you execute the will and you want to incorporate
for example the inventory, the inventory must be in
existence AT THE TIME of the execution of the will,
because when you incorporate an inventory which is yet
to be prepared, that is not a valid incorporation by
reference. For example, I say in my will, My property
referred to in page 7 of my inventory to be executed

Q: What if the inventory consists of 10,000 pages, does it

have to be signed on each and every page by the testator
and the witnesses?
A: It has to be signed but not on each and every page. A
sufficient number of pages must be signed, but not all the
pages. That is what is meant by the statement except in
case of voluminous books of account or inventories. The
purpose here is for identification. If you do not sign
anything, how can you identify that the document being
referred to in the will are indeed the same document that
are being presented in the probate proceedings.
What requirements have to be stated in the face of the
will?
1. The fact that you are referring to the document or
paper;
2. The clear description and identification of the
document;
3. The number of pages.
Note: If these are not stated in the face of the will then
there is no valid incorporation by reference.
What requirements have to appear on the face of the
document to be incorporated or being referred to?
1. The signature of the testator;
2. The signature of the witnesses
Exception: Voluminous books of account or inventories.
Which of these requirements can be proved by Extrinsic
Evidence?
1. That the document is in existence at the time of the
execution of the will;

35
2. That the document is the one being referred to in the
will.
Which kind of Will shall have incorporation by reference?
GENERAL RULE: Only Notarial Wills, for the following
reasons:
1. When you incorporate by reference, these documents
under Art. 827 have to be signed by the testator and
the witnesses. In Notarial wills, there are witnesses. In
Holographic Wills, there are none.
2. In Notarial Wills, the contents can either be in the
handwriting of the testator, typewritten or a
combination. And, when you say documents to be
incorporated into the will, these documents may
either be typewritten or in the hand of the testator.
EXCEPTION: Holographic will, for the following reasons:
1. When the holographic will has at least 3 witnesses. There
can be incorporation by reference in this case
because the subscribing witnesses in the holographic
will, although a surplusage, can sign the document to
be incorporated.
2. Even if there are no witnesses but the document to be
incorporated are entirely written, signed and dated in
the hand of the testator. In this case, what we have is
a purely holographic will. Still you may have a valid
incorporation by reference.
Incorporation by reference of a void will
Example: You execute a will. But because you failed to
comply with certain legal requirements, your will becomes
void. You execute another will the next day, and because
it would be very time consuming for you to reproduce in
toto the contents in your first will, you just incorporate in
your second will by reference the first will which was void.
Can there be a valid incorporation by reference of a void
will?
Make a distinction as to what makes the will void (this is
related to Article 835):
1. If your will was void because there were only two
witnesses or there was no attestation clause, the will is
considered to be void as to form. If you want to
reproduce or republish, or to give effect to the will that is
void, you have to execute a new will. There can be no
valid incorporation by reference of a void will which is
void as to its form because if you really want to give
effect to that will, you have to re-execute the will.
2. When you were insane or just 17 years old when you
executed the will, you do not have testamentary capacity,
thus, your will is extrinsically void. Under Article 835,
there is no requirement of re-executing the will. You do
not have to copy all the provisions in your first will in
order to give effect to the previously void will. If an insane
person executes a will, that will is void. If he attains sanity
thereafter, and he wants to give effect to that void will, he
does not have to re-execute the void will. He can
incorporate by reference into his new will the void will
because even if the void will was extrinsically void, it was
not void as to form.

REVOCATION OF WILLS AND TESTAMENTARY

DISPOSITIONS
Article 828. A will may be revoked by the testator
at any time before his death. Any waiver or
restriction of this right is void.

Revocation is an act of the mind terminating the

potential capacity of a will to operate at the death of the
testator manifested by some outward and visible act or
sign symbolic thereof.
Until the death of the testator, a will is ambulatory and
revocable, since after all, the will concerns a disposition of
properties and rights effective after death. The heirs do
not acquire any vested right to the disposition in a will
until after the testators death. Provisions in a will which
are ordered to be effected immediately, even during the
testators lifetime, are alright, provided the proper
formalities and requisites are present, but they are not
really testamentary disposition.
An act of the mind There must be intent to revoke.
A will which has potential capacity Potential
because during the lifetime of the testator, it is not yet in
effect; it only ripens into a valid disposition of property
upon the death of the testator.
Manifested by some outward and visible act or sign
Even if it is your intention to revoke, if there is no
physical or outward act that manifests the intent to
revoke, there is no revocation.
Q: Is there an instance that the testator is prevented from
revoking his will during his lifetime?
A: The answer here is the Principle of Supervening
Incapacity. If the testator is sane and executes his will and
complied with all the formalities of the law, the will is
valid. However, if the testator subsequently becomes
insane, he cannot revoke his will during his insanity
because when you revoke a will, you have to possess
testamentary capacity. This is the only exception.
Article 829. A revocation done outside of 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.
1. For revocation OUTSIDE the Philippines.
A. If not domiciled in the Philippines
a) follow law of place where will was MADE (not
where the will is revoked)
b) or follow law of place where testator was
DOMICILED at the time.
B. If domiciled in the Philippines (not provided for in the
law)
a) the law of the place of DOMICILE in this case, the
Philippines because he is a resident of the
Philippines.
b) the law of the place of REVOCATION this is
provided under article 17 NCC, the Rule of lex loci
celebrationis. The law of the place of execution
and the execution in that case is the revocation.
So the law of the place of revocation.
2. If revocation is IN the Philippines, follow Philippine law.
Note: In laws governing revocation, the national law of the
testator has no relevance.
Article 830. No will shall be revoked except in the
following cases:
By implication of law; or

36
By some will, codicil, or other writing executed as
provided in case of will; or
By burning, tearing, canceling, 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.
By implication of law The kind of revocation produced
by OPERATION of LAW when certain acts or events take
place after a will has been made, rendering void or
useless either the whole will or certain testamentary
dispositions therein.
Acts considered revocation by implication of law
1. Article 957 of the NCC. When after the testator has
made a will he sells, donate the legacy or devise.
Example: A gives a car to B. A, after giving the car by
virtue of the will, sells the car to C. In this case, it is
presumed that Prince has revoked the legacy of the car to
Julia.
2. Article 106 (4) of the FC Provisions in the will in favor of
the spouse who has given cause to legal separation shall
be considered revoked by operation of law the moment
the decree of legal separation has been rendered.
Example: W and H are spouses and because H committed
an act of infidelity, that is a ground for legal separation. W
files a case for legal separation against H. But before W
discovered the act of infidelity committed by Jules, W
executed a will giving a house and lot to H. If it is proven
that indeed H committed acts of infidelity thereby the
decree of legal of separation is issued, this provision in
the will in favor of H is revoked by operation of law. Even
if W will not expressly revoke the will or disinherit H, still
the law considers that disposition to be validly revoked by
implication of law.
3. Under article 1032 When an heir, legatee or devisee
commits an act of unworthiness
Example: a house is given to B, but B attempts to kill C,
his father. That is an act of unworthiness. In that case, the
disposition in favor of B is revoked by operation of law.
4. Article 936 When a credit that has been given as a
legacy is judicially demanded by the testator.
Example: A has receivables from B. But in her will, A is
giving the credit from B to C. One month after the
execution of the will giving the legacy of credit, A
judicially demand or filed a case against B for the
collection of the amount. In that case, the legacy of credit
is deemed to have been revoked by operation of law.
5. Article 854 Preterition
Example: A son is supposed to be a compulsory heir. He
cannot be denied of his legitime or his rightful share
without valid cause. If the father executes a will omitting
in the will any disposition in favor of his son but instead

gives the properties to his friends, there is Preterition. In

that case, the will is revoked.
By some will, codicil, or other writing executed as
provided in case of will revocation by a subsequent
instrument; after the testator had executed a will, he
executes a subsequent will, whether a notarial or
holographic, or a codicil, and in that will or codicil, he
expressly revoked the dispositions made in the previous
will; or in that new will or codicil, the dispositions are
completely inconsistent with the dispositions in the
previous will. In such cases, there is revocation by a
subsequent instrument.
Kinds of Revocation by Subsequent Instrument:
1. EXPRESS REVOCATION When the new will or
codicil contains a Revocatory Clause.
In the end of a will, it is stated this will revokes my
previous will. This is a revocatory clause. Further, the
dispositions need not be completely inconsistent with the
previous will. As long as there is a revocatory clause,
there is express revocation.
2. IMPLIED REVOCATION When the provisions in the
subsequent wills or codicil are completely inconsistent
with the provisions in the previous will. (Implied
revocation is further discussed under article 831 and
article 832.)
Example: The testator, in his will, stated A as heir to all
his properties. But in the subsequent will the disposition
is now in favor of X. So the dispositions in the 1st will are
different from the disposition in the 2nd will. The two wills
are completely inconsistent because the properties given
to A cannot be given to X. Thus, there is complete
inconsistency.
Requisites in order for the subsequent instruments to
revoke the previous will:
1. There must be testamentary capacity AT THE TIME of
revocation as to what is testamentary capacity, the
testamentary required in the execution of wills:
Must be of sound mind
Must able to know the character of
testamentary act
The proper of object of his bounty
The nature of the estate to be disposed of.
2. The subsequent instrument must be valid;
3. The subsequent will or instrument must contain a
revocatory clause or be incompatible with the former
will thereby showing intent to revoke; and
4. The subsequent will or instrument must be admitted
to probate this admission to probate is merely a
consequence of executing the subsequent will or
codicil in observance with all the forms prescribe by
law and with the testator having testamentary
capacity.
Q: What happen if there are two wills, but the 2nd will
was discovered ahead of the first will. The 1st will was
executed in 1989 and the 2nd will was executed in 1990.
When the testator died, only the 2nd will was discovered
and admitted to probate. After the probate of the will
executed in 1990, the will executed in 1989 was
discovered and it was sought to be probated. Will this will
executed in 1989 be allowed probate?
A: No, because the will executed in 1990 is presumed to
have revoked the will in 1989. It is presumed that all the
dispositions in 1990 superseded the dispositions in 1989.

37
Q: What if the 1989 will was first discovered and admitted
to probate? After admitting the 1989 will to probate, the
heirs discovered the 1990 will. Because there is a will, the
heirs again filed a petition for probate of the will in 1990.
May the will in 1990 be allowed probate?
A: The answer is qualified. If after examination of the two
wills it is found that there are no inconsistencies between
them, there is no more need to admit into probate the will
which was found later. But if the dispositions in these two
wills are completely inconsistent with each other, there is
a need to allow probate of the will executed in 1990. This
will executed in 1990 revokes the will in 1989. Under the
Law on Succession, the later will is presumed to be the
latest expression of the will of the testator.
By burning, tearing, canceling, 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.
Requisites:
1) There must be an overt act specified by the law.
A. BURNING the act of burning is an act of revocation.
However, it is not required that the whole instrument
is completely burned. Even if only a portion of the 2)
document is burned, it is considered to be an act of
revocation.
B. TEARING either you tear or cut by means of your
hands or scissors. Again like the act of burning, even
if slight cut or slight tear, that is sufficient to be
considered an act of revocation. The greater the cut,
the greater is the presumption that there is animu
revocandi on the part of the testator.
Q: What if the will consists of 10 pages and it was held by
a fastener, what if you removed the fastener and you tear
the pages out of the fastened will. Will that be considered
tearing?
A: That is not considered tearing, no act of revocation.

A: Yes, the important thing is you have the intention to

cancel it and you execute the act by putting a line across
the word. If what is cancelled is merely a word or some
dispositions, only those words or dispositions are revoked.
But if you write a line across the will, in that case the
whole will is considered to be revoked.
Q: What if you only place the word cancelled on the
will?
A: There is cancellation because there is an intention and
there is the act of cancellation if you write the word
cancel or other words to cancel the will.
D. OBLITERATING it is when you erase or blot out.
(renders the word illegible)
Q: What happens if despite blotting out the word, it
remained legible? Is there obliteration?
A: You apply the case of cancellation. Still there is
revocation as long as there is an act of obliteration or
blotting out the word.
Q: What happens if you obliterate or cancel or tear some
words or some provisions?
A: These provisions are considered revoked but the will
remains valid.
Q: What if the cancellation or the obliteration is effected
in the signature?
A: In this case, it is the will that is revoked because the
signature goes into the heart of the will. Meaning, when
you place your signature, you own the disposition written
in the will.
There must be a completion at least of the
subjective phase of the overt act You have the
intent to revoke and it is within your power to give effect
to that intent. As long as you have not given any effect or
manifestation to that intent, there is no revocation.
GENERAL RULE: Even if the tearing is not complete or the
burning is not complete then there is an act of revocation.
EXCEPTION: When the testator starts burning his will but
he realize that he really does not want to revoke his will.
So before the will is completely burned, he desists from
burning and that is voluntary desistance on his part. In
this case, even if the will contains a slight burn or slight
tear there is NO ACT OF REVOCATION because of the
voluntary desistance by the testator.

3) There must be animus revocandi or intent to

revoke Even if there are overt acts but there is no
intent to revoke, there is no revocation. When the testator
accidentally tears the will or is under intimidation, there is
no revocation. In the same manner, intent to revoke alone
is insufficient to constitute sufficient revocation of the will.
If the testator with all the intention to revoke his will
Q: Example, there is a will and there is also a codicil
places the will above the stove but without the testators
supplementing the will. The will is not torn but the codicil
knowledge another person takes the will therefore
is torn, is there an act of revocation?
preventing the will from being burned, in that case, there
A: Yes, because there is an act of tearing. In this case,
is no revocation because even though there is an intent to
both the will and the codicil are revoked because the
revoke, there is no overt act that has passed the
codicil is part of the will, it is supplementing the will and
subjective phase.
because the will and the codicil are treated as one.
Q: What if the will consists of 5 pages and you tear 1
page only of the will, is there revocation?
A: That is considered a revocation because even if you
tear only one page, that act is considered directed against
the whole instrument.

C. CANCELING when you place a mark or line across

the writings. If you place a mark or line on the
spaces, there is no cancellation.
Q: What happens if you put a line but the words still
remain legible, is there revocation?

There is an exceptional circumstance where there is no

overt act and only intent to revoke, but the will is
considered to have been revoked. If the testator directs
an heir to revoke a will through an overt act but the heir,
instead of revoking, keeps the will. Here, there is no overt
act but the will is deemed to have been revoked in so far
as the heir is concerned. It is the heir only because if he

38
does that, he is considered to have committed an act of
ingratitude. Therefore, he is disqualified from receiving his
part in the will.

the earlier one. Further, if you cannot find the second

will, you cannot make any presumption as to what are the
contents of the second will.

4) The testator at the time of revoking must have

capacity to make a will same capacity in the
execution of wills

Q: What if the will in 1995 was probated and

subsequently the will made in 1990 is found and sought
to be probated?
A: The 1990 will subsequently found need not be
admitted to probate because the presumption here is that
the will in 1995 revokes the previous will. This applies
when the two wills are found. This rule will not apply in
the first example where the will in 1995 is NOT found.

5) The revocation must be done by the testator

himself, or by some other person in his presence
and by his express direction. (Ratification of an
unauthorized destruction is however permissible provided
sufficient proof of this is presented.) The same
requirement that when another person signs the name of
the testator in behalf of the testator, it must be done in
his presence and under his express direction. So if the will
is revoked by another person, it should also be done in
the presence and under the express direction of the
testator.
Under Article 814, insertions, cancellations, or alterations
must be authenticated with the full signature of the
testator, otherwise such insertion or cancellation is
considered unauthorized. Article 814 applies to
holographic wills. Under Article 830, if the cancellation is
on the signature of the testator and it is done by another
person without the direction and without the presence of
the testator, you can argue under Article 830 that the will
is not revoked because, for revocation to be effective, it1.
must be in the presence and under the express direction
of the testator. But if the will is holographic you can argue
that the will is invalid because there is an unauthorized
cancellation of the signature of the testator. Thus, you
have to remember that revocation need not bear the full 2.
signature of the testator unlike Article 814.
Q: Testator made will No. (1). After one week, he wanted
to revoke same, so he executed will No. (2), expressly
revoking will No. (1). In the belief that he had already
accomplished what he wanted, he then tore into two
pieces will No. (1). On his death, it was discovered that
will No. (2) had not been validly executed. Can we
consider will No. (1) as having been revoked, or should it
still be given effect?
A: In one case, it was held that while it is true that
revocation was not produced by the execution of an
invalid will, revocation was made thru an overt act the
act of tearing or destruction with animo revocandi.
Hence, the court concluded that will No. (1) had indeed
been revoked. However, in a subsequent case, it was
ruled that there was no revocation either by subsequent
will (for same was invalid) or an overt act (since the act of
destruction or tearing the first will was prompted by the
false belief that the second will had been validly
executed). To put it in another way, the doctrine of
dependent relative revocation the revocation by
destruction or overt act was good only if this condition is
fulfilled, namely, that the revoking will was valid. The
condition was not fulfilled; therefore, the revocation by
overt act did not really materialize.
Q: The testator executed a will in 1990. Later on he
executed another will in 1995. After the testators death,
the will executed in 1995 was not found, only the will in
1990. Is there a presumption that the will in 1990 is
revoked?
A: When after the death of the testator the subsequent
will cannot be found, there is no presumption that the first
will has been revoked because it is not presumed that the
subsequent will was executed with the intent to revoke

Q: What if after the testators death, the 1995 will cannot

be found because it was destroyed (burned, torn etc.) by
another person?
A: In this case, there is now a presumption that the
second will revoked the first will, unless of course if there
are competent evidence to show the contrary.
Q: What if the testator executed a will and reproduced it
for example 100 copies? What if the testator tears the
original will. Is there revocation of all the other copies?
A: Yes, because the original copy is the root of all copies.
Thus, there is sufficient revocation.
Lost or Destroyed Wills
Holographic wills A holographic carbon copy of the
will can be probated. But if no copy of the holographic will
is produced in court, it cannot be allowed probate
because the handwriting of the testator is the only
safeguard as to the authenticity of the holographic will.
Notarial wills In the case of lost or destroyed notarial
wills, they may still be probated provided that they were
not lost or destroyed because of the revocation of the
testator. How would you prove the contents of notarial
will? You can prove the same by:
a. When there is a carbon copy a carbon copy
signed by all concerned is just as good as the
original. The production and admission of a carbon
duplicatewithout a new publication does not affect
the jurisdiction of the probate court, already
conferred by the original publication of the
petition for probate, unless substantial rights are
adversely affected. Incidentally, if the original
presented is defective and invalid, there is in law
no other will but the duly signed carbon duplicate,
which is probatable.
b. Recital of the contents in some authentic
document For example, there is no will but there
are some other documents like a deed of sale or a
deed of donation or acknowledgment that bears a
recital of the contents of the will, so that is
allowed.
c. Testimony of witnesses
During the probate of a lost or destroyed notarial wills,
what should be proved?
1. Established compliance with the formalities required
by law under articles 804-809 NCC.
2. That the will was in existence at the time of the death
of the testator or that it was fraudulently destroyed or
lost without the knowledge of the testator, or it was
accidentally lost or destroyed by the testator without
intent to revoke.
3. You have to prove the contents clearly and distinctly
by copies; or if without copies, by recital of content by
some document or the testimony of the witnesses.
SAMSON vs. NAVAL

39
Facts: Perfecto presented for allowance as the will of
Simeona, a document executed by her on February 13,
1915. It was denied on the ground that said document
was not duly executed by the deceased as her last will
and testament. Thereafter, the nieces and legatees of the
same deceased filed in the same court for allowance as
her will, another document executed by her on October
31, 1914. The petition was opposed contending that the
will could not be allowed because of the existence of
another will of subsequent date, executed during her
lifetime by the same Simeona, and because said will has
been revoked by the one executed subsequently by her
during her lifetime.
Held: In order that the will of February 13, 1915 (the first
document presented as the will of the deceased Simeona)
could have the effect of revoking that which was
presented afterwards as executed by the same deceased
on October 31, 1914, it was necessary and indispensable
that the later will (the first presented for allowance),
should be perfect or valid. Thus, the second will
presented, that is, that of October 31, 1914, was not and
could not have been revoked by the first.
MOLO vs. MOLO controlling doctrine
Facts: Molo died with his wife Juana surviving him.
Mariano left two wills, one executed on August 17, 1918
and another executed on June 20, 1939. In both the
1918 and 1939 wills, Juana was instituted as his universal
heir. The latter will contains a clause, which expressly
revokes the will executed in 1918. Juana filed a petition
seeking the probate of the will executed in 1939. The
court rendered a decision denying the probate. In view of
the disallowance of the will, the widow filed another
petition for the probate of the will executed by the
deceased on 1918.
Held: A subsequent will containing a clause revoking a
previous will, having been disallowed, cannot produce the
effect of annulling the previous will, inasmuch as said
revocatory clause is void. The failure of the new
testamentary disposition, upon whose validity the
revocation depends, is equivalent to the non-fulfillment of
a suspensive condition, and hence prevents the
revocation of the original will. Also take note that in
revocation by subsequent instrument, there is a
requirement that the subsequent instrument must be
valid. Furthermore, the testator did not intend to die
intestate. This intention is clearly manifest when he
executed two wills and instituted his wife as his universal
heir. There can therefore be no mistake as to his intention
of dying testate.

such dispositions in the prior wills as are

inconsistent with or contrary to those contained in
the later wills.
Implied Revocation When the testator, after having
executed a will, executes another will or codicil which the
will or codicil does not contain a revocatory clause but its
contents are inconsistent with the former will, there is
implied revocation.
The court does not favor revocation. As much as possible,
if there is any means of reconciling the contents of the
two wills, the two wills must be reconciled so that the wills
can stand together to be admitted to probate. But if the
inconsistency in the second will is complete, then the first
will is deemed to have been revoked.
Article 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 legatees designed therein, or
by their renunciation.
There is a difference between an invalid will, and a valid
but ineffective will. An invalid revoking will cannot revoke.
But a valid though ineffective will can revoke.
Doctrine of Absolute Revocation When you say
valid, it complied with all the requisites required by law
under Articles 804-809. When you say ineffective, the
provisions of the will cannot be given effect because of
incapacity, repudiation or renunciation by the heir,
legatee or devisee. Even if the will becomes ineffective,
the will is still valid; and because it is valid, it is deemed
to have revoked the previous will.
Doctrine of Dependent Relative Revocation Where
the act or destruction is connected to the making of a will
so as squarely to raise the inference that the testator
meant the revocation of the old would depend upon the
efficacy of the new disposition and if for any reason the
new will intended to be made as a substitute is
inoperative, the revocation fails and the original will is in
full force and effect. Example: You execute a second will
but the second will turns out to be invalid for failure to
observe with some of the requisites. There is no
revocation here because the condition that the
subsequent will must be valid has not been complied
with.

Held: The testator, shortly after the execution of the first

will in question, asked that the same be returned to him.
The instrument was returned to the testator who ordered
his servant to tear the document. This was done in his
presence. The execution of the second will by the
deceased is an intention of revocation, which is manifest
from the established fact that the testator was anxious to
withdraw or change the provisions he had made in his
first will. The original will herein presented for probate
having been destroyed with animo revocandi, cannot now
be probated.

Q: What if the first will was executed in 1980 and after 2

days the testator destroyed the will with intent to revoke.
In 1990, another will was executed but the 2nd not valid
because only 2 witnesses attested. Can the Doctrine of
Dependent Relative Revocation be applied?
A: Obviously no, because long before the second will was
executed, the testator had already revoked the first will
by an overt act in 1980 (2 days after he executed the
1980 will). At the time of destroying the first will, you
should not say that probably the testator intended to
execute another will and he intend really to condition the
validity of the revocation to the execution of the
subsequent will. You cannot say that the destruction
made in 1980 is dependent on the execution of another
will in 1990 because it would be very illogical to assume.
You cannot apply here the doctrine of Dependent Relative
Revocation.

Article 831. Subsequent wills which do not revoke

the previous ones in an express manner, annul only

Point of distinction: If the destruction is AFTER the

execution of the subsequent will, the Doctrine of

DIAZ vs. DE LEON

40
Dependent Relative Revocation applies. He destroyed the
1st will after having executed the 2nd will. But if he
destroyed the 1st will LONG BEFORE the execution of the
subsequent will, you can no longer apply the doctrine.
The will here was destroyed by an overt act so it is
absolute.
Article 833. A revocation of a will based on a false
cause or an illegal cause is null and void.
As already discussed under Article 830, this Article 833 is
one of the aspects of dependent relative revocation, or
more properly, at least for the purpose of this Article, a
revocation made under a mistake. Example: T made A
his heir in a will. T then learned that A was dead, so he
made another will instituting B as heir. If A turns out to be
alive, who inherits? A inherits, because the revocation
was based on false cause.
The fact that the cause for the revocation was a false
belief or a mistake must be found on the face of the will
or codicil itself. In the example given, in the second will,
the testator should write, Because A died, I am now
executing another will and now instituting B as my heir in
lieu of A. So here, the false cause is stated in the new
will.
Q: What if the testator says, I receive news that A is
dead, I dont think that is true but nevertheless I am now
executing another will instituting B as my heir. Is this a
case of revocation based on a false cause or illegal
cause?
A: No, it is not based on a false cause or illegal cause
because even if the testator entertains doubts whether
the news he received where true or not, still he executed
another will. Here, the intention to revoke is present
regardless of whether or not A is dead or alive. Hence,
there is an intent to revoke.
If the revocation is by overt act like burning, tearing, etc.,
there is no requirement of stating the false cause in a
subsequent will because in a revocation by overt act, you
cannot really say that there would be a subsequent will.
The fact that the revocation is by an overt act, if
prompted by a false belief, may be proved by Oral
Evidence. If the testator receives news that A is dead and
he burns his will because he believes that A is dead, then
the fact that the burning was prompted by a false belief, 1.
it can be proved by Parol evidence.
Article 834. The recognition of an illegitimate child
does not lose its legal effect, even though the will
wherein it was made should be revoked.

2. Recognition is not a testamentary disposition of

property. Even if the will is revoke the recognition
subsists.
As provided in article 175 and 172 of the Family Code,
recognition of an illegitimate child may be done in a
record or birth appearing in the civil registry, in a public
document or in a private document in the handwriting of
the parent concerned or by any other means allowed by
the Rules of Court. So there is even no requirement that
the recognition should be embodied in a will.

REPUBLICATION AND REVIVAL OF WILLS

REPUBLICATION
It is the re-establishment
by
the
testator
of
previously revoked will or
one invalid for want of
proper execution as to
form or for other reasons
so as to give validity to
said will
It involves the act of the
testator.
There is a will previously
revoked or a will valid as
to form or a will invalid for
any other cause

REVIVAL
It is the re-establishment
to validity by operation of
law
of
a
previously
revoked will.

It involves the act of law,

operation of law.
A will previously revoked.

Article 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.
Article 836. The execution of a codicil referring to a
previous will has the effect of republishing the will
as modified by the codicil.
Republication It is the process of re-establishing a will,
which has become useless because it was void, or had
been revoked.
Two kinds of Republication:
EXPRESS REPUBLICATION/REPUBLICATION BY REEXECUTION is a republication in a subsequent will of a
previous one which is void as to form. This is the one
mentioned in Article 835.
Example: A executed a will in 1990. The will in 1990 was
attested only by two witnesses, so it is void as to form. If
the testator really wanted to give effect to his will, he
should republish. How? He has to re-execute his will. This
is express republication or republication by re-execution.
This is what is provided under Article 835, void as to form
but you have to re-execute all the contents.

Under Art. 278, voluntary recognition of illegitimate child

may be done:
(1) in a record of birth
(2) will
(3) statement before a court of record
(4) any authentic writing
Now then, if the will in which recognition had been made 2. IMPLIED
REPUBLICATION/
REPUBLICATION
BY
is subsequently revoked, the recognition still remains
REFERENCE is the execution by a codicil referring to a
valid.
previously revoked will or a will valid as to form but void
because of some extrinsic defects like lack of
Reasons why the recognition remains valid:
testamentary capacity. This is the one mentioned in
1. Recognition takes place immediately upon the
Article 836.
execution of the will. You need not wait for the
testator to die before you can give effect to this
Example: The will in 1990 is void because the testator
revocation;
was insane. During sanity, if the testator wants to give
effect to his will in 1990 executed when he was insane,
what should the testator do? The will is not void as to

41
form but it is extrinsically void because of lack of
testamentary capacity. So when the will is extrinsically
void but valid as to form, if he wants to give effect to the
will, the testator need not re-execute the entire provisions
of the will. Instead, he can execute a codicil wherein in
that codicil, he may just refer the will he made in 1990. In
that case, still there is a valid republication.
Effects of Express Republication
1. In express republication, you have to observe the
formalities required by law when you execute the new
will.
Example: I executed a will in 1990 which is void as to
form, I re-establish it in 2000. So what is now the effect?
The will which was executed in 1990 which is void as to
form is deemed to have been executed in 2000. If in
1990, for example, only 2 witnesses are required but in
2000, 3 witnesses are required. Thus, the will in 1990 was
void. Because it is deemed to have been re-executed or
re-establish in 2000, you have to observe the laws in
force in 2000. In the example, you have to have 3
witnesses otherwise the will is still void.
2. If there is republication, properties deemed included
in the legatee, devise or inheritance shall be reckoned
from the day of republication because the will is
deemed to have been executed at the time of
republication.
Example: The testator in 1990 provides in his will, I
hereby give my building in Claveria to A. Under the laws
of succession, only those properties existing at the time of
the execution of the will shall be included. The building
has two floors. In 1995, the testator added a 3rd floor. The
testator discovered that the will made in 1990 was void
because only 2 witnesses were present during the
execution of the will, so it is void as to form. But the
testator wants to give effect to this void will, so he must
re-execute. So in 2000, he re-executes the will with the
same provision or disposition, I hereby give to A my
building in Claveria. In 2000, the building has a 3rd floor.
So if the testator executes his will in 2000, what property
is included? ALL are included in the disposition in 2000. In
2000, the testator is deemed to have given to A the 3story building, not only the 2-story building. This is
another effect of republication. If no republication, the 3rd
floor is considered after-acquired property. But if there is
republication, it would no longer be an after-acquired
property because the will is deemed to have been
executed in 2000. So you have to comply the laws
required in 2000. Properties deemed included in the
legatee, devise or inheritance shall be reckoned from the
day of republication. This is also the effect with
respect to implied republication/republication by
reference.
Example: The testator executes a will. But because he
does not like the provisions in his will, he tears his will
into 4. The testator later on changed his mind, he wants
to give effect to the destroyed will. Can the testator just
paste the will? No. These methods of republication,
express and implied republication are the only means
allowed by law to give effect to a will which was void as to
form, or was extrinsically void, or which was revoked. You
cannot just paste the will.
Effects of Republication by Virtue of a Codicil
(Implied Republication)
1. The codicil revives the previous will.

2. The old will is republished as of the date of the codicil

makes it speak, as it were, from the new and later
date.
3. A will republished by a codicil is governed by a statute
enacted subsequent to the execution of the will, but
which was operative when the codicil was executed.
Example: At the time a notarial will was executed with
two witnesses, the law required three. Suppose later on,
the law changed the required number to two, and
suppose this time a codicil referring to the will is made
with two (as required) witnesses, is the old will
republished?
While it is true that generally a void will (as to its form)
cannot be republished merely by reference in a later valid
codicil, and while it is true that according to 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, still
it is submitted that in this particular case, there was a
valid republication because of the fact that here, the
defect has been cured. Moreover, from one viewpoint, it
may be said that republication is still part of the process
of making, referred to in Art. 795.
However, the general rule may be illustrated thus: if at
the time the codicil was made, the law still requires three
witnesses, then the codicil, even if it has by itself three
witnesses, cannot by mere reference, republish the old
void will, which had only two witnesses. The way to
republish such void will is to execute another will (or even
a codicil) which would REPRODUCE all the previous
dispositions.
4. Properties deemed included in the legatee, devise or
inheritance shall be reckoned from the day of
republication. (refer to previous discussion under
Effects of Express Republication)
Article 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.
Ways to giving effect to a void will or a revoked will:
1. Republication by the act of the testator
2. Revival by operation of law
Revival the restoration or reestablishment of revoked
will or revoked provisions thereof, to effectiveness, by
virtue of legal provisions.
Example: 1st will is revoked by the 2nd will; 2nd will is
again revoked by the 3rd will.
Q: Is the 1st will revived?
A: If the 3rd Will revokes the 2nd Will, the 1st Will will not
be revived as long as the 1st will is expressly revoked by
the 2nd will. This is called the THEORY OF INSTANTER.
Theory of Instanter When the will is EXPRESSLY
revoked by a 2nd will, the revocation of the 2nd will by
the 3rd will, will not revive the 1st will. This is because
revocation takes effect immediately. It does not wait for
the death of the testator to become effective because
revocation does not take the form of testamentary
disposition.
Q: If you want to give effect to the 1st will, what should
you do?

42
A: You have to republish. You may do so by implied
republication or republication by reference because it is
already a revoked will. Or, if you want to re-execute, you
may do so.
However, in the example given, if the 1st will is merely
impliedly revoked (inconsistency) by the 2nd will and the
2nd will is revoked by a 3rd will by an overt act, the 1st
will is revived because the revocation was only implied.
This time we have to apply again the Principle of1.
Dependent Relative Revocation. The testator really
wants to give effect to the 1st will so he revokes the 2nd
will. The revocation of the 1st will is dependent upon
giving effect to the 2nd will. An implied revocation is
ambulatory, the inconsistency being truly and actually
apparent only mortis causa, when the properties are
distributed. This is also an example of revival by
operation of law.
What if the second will expressly revoked the first, then
the testator destroyed the second will, and orally
expressed his desire that his first will be followed? Should
this be allowed? No, the oral expression of the desire to
revive cannot be given effect. He should have made a
new will or codicil.
Another example of Revival is under article 854 on
Preterition, when a compulsory heir is omitted in the
institution. When a father makes a will and excludes his
son who is supposed to be a compulsory heir, the
2.
institution in the will with respect to legatees or devisees
remains as long as the legitime of the other heirs are not
impaired. But in Preterition, there is revocation because
the institution of heirs is annulled. If the compulsory heir
omitted died ahead of the testator and he has no
representative, in that case the will is Revived. Why?
Because there is no longer preterition. No heir is omitted
because the heir who is supposed to be omitted has died
ahead of the testator.

ALLOWANCE AND DISALLOWANCE OF WILLS

Article 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 testators 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.
Probate is the act of proving before a competent court
the due execution of a will by a person possessed of
testamentary capacity, as well as approval thereof by said
court. Probate is one thing; the validity of the
testamentary provisions is another. The former decides
the execution of the document and the testamentary
capacity of the testator; the latter deals with descent and
distribution.

Probate generally is done after the death of the testator.

His will is presented in court to determine whether his will
was really duly executed and whether or not the will
complied with all the requirements prescribed by law. But
Probate may also be done during the lifetime of the
testator.
Nature of a Probate proceeding
Probate proceeding is a SPECIAL PROCEEDING as
distinguished from an ordinary civil action or a special
civil action. Being a special proceeding, it is a proceeding
IN REM. In rem meaning it is directed against the whole
world and the judgment that will be rendered in a probate
proceeding is binding against the whole world. And
because it is a proceeding in rem, it requires publication
and notice.
In Probate Proceedings, the inquiry, as a General Rule, is
limited only to the EXTRINSIC VALIDITY of the will.
Extrinsic validity meaning:
a) whether or not the testator he was of sound mind
when he executed the will;
b) whether or not he is 18 years or above;
c) whether or not the will complied with the formalities
under article 804-809 with respect to notarial will;
d) whether or not the will is entirely written, dated and
signed in the handwriting of the testator with respect
to holographic will.
Probate proceeding is required by PUBLIC POLICY. It is
the policy of the State and it is of public interest to give
effect as much as possible the last wishes of the testator.
Because this proceeding is a matter of Public policy, the
rule on ESTOPPEL and the STATUTE OF LIMITATION does
not apply in probate. There is a period of limitation to
those who would oppose but not to the proponent of the
will.
Probate is MANDATORY because Article 838 provides
that "No will shall pass either real or personal property
unless it is proved and allowed in accordance with the
Rules of Court." Even if intestate proceedings have
already commenced or pending, if there is a will then that
intestate proceeding shall be held in abeyance and shall
proceed with the probate of the will. Probate is also very
important even if there is only one heir, even if the estate
has no debts, still the will should be probated.
Under the Rules of Special Proceeding, we have the Extrajudicial settlement of estate of deceased person and
Summary Settlement of Estate of Small Value.
Extrajudicial Settlement is NOT allowed when there is a
will. On the other hand, Summary Settlement of Small
Value is allowed in both testate and intestate.
The probate is essential:
1. Firstly, because the law expressly requires it;
2. Secondly, probate is a proceeding in rem (requiring
publication, among other things) and, therefore,
cannot be dispensed with or substituted by any other
proceeding, judicial or extrajudicial without offending
public policy;
3. Thirdly, the right of a person to dispose of his property
by virtue of a will may be rendered nugatory; and
4. Fourthly, because absent legatees, and devisees, or
such of them as may have no knowledge of the will
could be CHEATED of their inheritance thru the
collusion of some of the heirs who might agree to the
partition of the estate among themselves to the
exclusion of others.

43
Two kinds of Probate
1. ANTE MORTEM PROBATE Probate done during the
lifetime of the testator
2. POST MORTEM PROBATE Probate done after the
death of the testator.
Reasons why probate during the lifetime of the
testator is allowed:
1. The court can already see the mental sanity of the
testator;
2. The court can easily verify if the testator executed the
will without fraud, intimidation or undue influence,
imposed upon his person.
3. If the will contains some defects, it would be easy for
the testator to correct the imperfections in his will.
Note: If the will of the testator who is alive is admitted to
probate, it does not mean that the testator can no longer
revoke his will. This is because wills are essentially
revocable and ambulatory during the lifetime whether or
not they have been admitted to probate. There should be
no impediment on the testator from revoking his will.
Procedure and Reason for Ante Mortem Probate
(a) Testator himself petitions the court for the probate of
his will.
(b) He then follows the procedure for the post mortem of
ordinary probate, except insofar as the Supreme Court
may impose additional rules for ante mortem
probates.
Two Aspects of Post Mortem Probate:
1. PROBATE PROPER (extrinsic validity) only
concerned on the due execution of the will and the
testamentary capacity of the testator.
GENERAL RULE: During probate proper, the probate
court HAS NO JURISDICTION to entertain other issues
except on issues on whether or not the will was duly
probated in compliance with the formalities required by
law and whether or not the testator has testamentary
capacity at the time he executed the will. So probate
court has no jurisdiction to pass upon matters of intrinsic
validity of wills. They cannot pass upon questions on
ownership, filiation, or the legality of the dispositions in
the will, or whether or not the person instituted as heir is
disqualified to inherit.
EXCEPTION: Matters which are ordinarily beyond the
jurisdiction of the probate court may be passed upon by
the probate court. These exceptions are discussed in the
cases of:
Issues that may be passed upon by the probate court
(intrinsic validity):
1) Ownership
a. when the testator has disposed of property which
is not his; or
b. whether or not a certain property is included in
the estate.
2) Filiation
a. whether or not the oppositor has personality to
intervene; or
b. whether or not the will has been revoked
2. The inquiry into INTRINSIC VALIDITY and the
DISTRIBUTION itself of the property.
Note: At any time after the testator dies, the will may be
presented for probate by any executor, devisee, legatee,
or interested person. This is true whether or not the

petitioner (proponent) has the will in his possession, or it

is in somebody elses possession, or has been lost or
destroyed, as long as there was no animo revocandi.
Distinguish probate of holographic will and probate
of notarial will with respect to the witnesses to be
presented:
In the probate of Holographic wills, if uncontested, it is
enough that at least one witness explicitly declares that
the will is in the handwriting and signature of the testator.
When the will is contested, at least 3 of such witnesses
and in the absence of such witnesses, expert testimony
may be resorted to. But even if uncontested, still expert
testimony may be resorted to.
In Notarial wills, when uncontested, at least one
subscribing witness should testify as to the execution of
the will.
When contested, ALL of the subscribing
witnesses plus the notary public must testify. If all of the
subscribing witnesses and the notary public are dead;
insane; absent in the Philippines; testify against the due
execution of the will; do not remember having attested
the execution of the will; or of doubtful credibility, then
other witnesses may be resorted to.
Note: The necessary witnesses must be produced if
available, and their absence must be satisfactorily
explained. Even if an attesting witness does not
remember attesting or even if he testifies or all the
witnesses testify against the validity and due execution of
the will, there is still a chance for the court to allow the
will, if it believes that all the legal requirements have
been complied with. It is error to deny allowance just
because of contradictions among the witnesses. After all,
such inconsistencies are not necessarily fatal to the
validity of the will. However, as a rule, the testimony of
the attesting witnesses should prevail over expert
evidence.
Intervention In order that a person may intervene in a
probate proceeding, that person must have an INTEREST
in the estate, or in the will, or in the property subject of
the proceedings. He must be real party in interest,
meaning, he stands to be benefited by the will or he
claims an interest over the estate as a creditor. Without
an interest, a person may not intervene in a probate
proceeding.
Example: An adopted child has no interest over the estate
of the relative of his or her adoptive parents, but only with
respect to the adoptive parents. So he cannot intervene in
the probate proceeding with respect to the relatives of the
adoptive parent. In the same manner, an illegitimate child
has no interest over the property of his or her illegitimate
parents. If what is under consideration is the probate of
the relatives of the illegitimate parents, the illegitimate
child has no legal personality to intervene. Likewise,
nephews and nieces or brothers or sisters, although they
are legal heirs in intestate succession, cannot intervene
when it comes to testate succession.
Distinguish a lost/destroyed holographic will and a
lost/destroyed notarial will:
When it comes to a holographic will, there must be a
photocopy or carbon copy of the holographic will. If there
is no copy of the holographic will, even if the reason why
the holographic will was lost or destroyed was due to the
act of another person and without intent to revoke on the

44
part of the testator, still no probate of the holographic will
may be allowed because there is no copy.
In Notarial will, even if there is no copy, still the notarial
will may be probated because the contents of a notarial
will may be proved by the testimonies of at least two
witnesses to clearly and distinctly prove the contents of
the notarial will. (As long as there is no animus revocandi
on the part of the testator)
TESTATE ESTATE of PILAPIL
Held: A provision in a will stating that the will shall not
be presented before the courts is a void provision, for a
person cannot by his actuations deprive a competent
court of its jurisdiction.
TOLENTINO vs. FRANCISCO
Facts: Tolentino was killed by an assassin. Upon the trial
for the probate of the will, two of the three attesting
witnesses repudiated their participation in the execution
of the will.
Held: When a will is contested, it is the duty of the
proponent to call all of the attesting witnesses, if available
but the validity of the will in no wise depends upon the
united support of the will by all of those witnesses. A will
may be admitted to probate notwithstanding the fact that
one or more of the subscribing witnesses do not unite
with the other, or others, in proving all the facts upon
which the validity of the will rests. 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.
MERCADO vs. SANTOS
Facts: Antilano filed a petition for the probate of the will
of his deceased wife, which was subsequently admitted.
Three years later, the intervenors moved to re-open the
proceedings. Months after the probate of the will was
filed, Rosario filed a complaint against Antilano for
falsification or forgery of the will probated. Antilano
contended that the will alleged to have been forged had
already been probated and that the order probating the
will is conclusive as to the authenticity and due execution
thereof. Therefore, the admission is a bar to his criminal
prosecution for the alleged forgery.
Held: Antilano cannot be convicted after the will was duly
probated. The ruling of the probate court is binding on the
complainant even if that person was not actually a party
to the probate proceeding. Probate proceedings are
proceedings in rem, which requires publication. Thus,
there is constructive notice to the whole world and
judgment or a decree in a probate proceeding is deemed
to be binding upon the entire world even against the
State.
COSO vs. FERNANDEZ
Facts: Testator, a married man, became acquainted with
Rosario Lopez in Spain. They testator had an illegitimate
son with Rosario. After his return to the Philippines, she
followed him and remained in close communication with
him until his death. A will was executed by the testator in
favor of the illegitimate son. There is no doubt that she
exercised some influence over the testator and the only
question is whether this influence was of such a character
as to vitiate the will.

Held: While it is shown that the testator entertained

strong affections for Rosario Lopez, it does not appear
that her influence so overpowered and subjugated his
mind as to "destroy his free agency and make him
express the will of another rather than his own." Mere
affection, even if illegitimate, is not undue influence and
does not invalidate a will. Though such a will may be
admitted to probate because of absence of undue
influence, still a mistress is incapacitated to inherit. (Art.
1028)
GUEVARA vs. GUEVARA
Facts: Ernesto and Rosario, legitimate son and natural
daughter, respectively, of the deceased are litigating over
their inheritance from the latter. Rosario, who appears to
have had her father's last will and testament in her
custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor. But over four years
after the testator's demise, she commenced the present
action against Ernesto and it was only during that case
that she presented the will to the court, not for the
purpose of having it probated but only to prove that the
deceased had acknowledged her as his natural daughter.
Held: The presentation of a will to the court for probate is
mandatory and its allowance by the court is essential and
indispensable to its efficacy. The non-presentation of a will
for probate and much less the nullification of such will
thru the failure of its custodian to present it to the court
for probate is not sanctioned. The Rules of Court
authorizes the extrajudicial or judicial partition of the
estate of a decedent "without securing letter of
administration." It does not say that in case the decedent
left a will, the heirs and legatees may divide the estate
among themselves without the necessity of presenting
the will to the court for probate. If the decedent left a will
and no debts and the heirs and legatees desire to make
an extrajudicial partition of the estate, they must first
present that will to the court for probate and divide the
estate in accordance with the will. Unless the will is
probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be
rendered nugatory. Further, if nobody raises any question
as to the authenticity and due execution of the will, still
none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its
allowance or probate by the court. Nor may the court
approve and allow the will presented in evidence in such
an action for partition, which is one in personam.
CORONADO vs. CA
Facts: Juana claims that a portion of the property was
inherited by her under the will of her grandfather Melecio.
Leonida claimed that the property was bequeathed to her
under a will executed by Monterola, who was allegedly in
possession thereof. The said will of Monterola was
probated. Despite of Juanas opposition, the Monterolas
will was allowed. Juana filed an action for quieting of title
against Leonida. Leonida claimed that the will under
which Juana inherited the property was never probated,
thus the transfer of ownership was ineffectual.
Held: While it is true that no will shall pass either real or
personal property unless it is proved and allowed by court
(Article 838), the questioned will, however, may be
sustained on the basis of Article 1056 of the Civil Code of
1899, which was in force at the time said document was

45
executed by Melecio in 1918. Article 1056 provides: "If
the testator should make a partition of his properties by
an act inter vivos, or by will, such partition shall stand in
so far as it does not prejudice the legitime of the forced
heir." In this case, nowhere was it alleged nor shown that
Leonida is entitled to legitime from Melecio. The record
does not show that Leonida and the late Melecio were
related to each other. Also, Juana is not estopped from
questioning the ownership of the property in question.
The probate of a will does not look into its intrinsic validity
and questions may be raised even after the will has been
authenticated.
MALOLES II vs. PHILILIPS
Facts: Dr. Arturo De Santos filed a petition for the probate
for his will. In his petition, he alleged that he has no
compulsory heirs and he named in his will as sole legatee
and devisee Arturo de Santos Foundation Inc. The court
allowed the probate of the will. After the probate of his
will, Dr. De Santos died. Maloloes II filed a motion for
intervention claiming that, as the only child of Alicia
Santos (testators sister), he was the sole full-blooded
nephew and nearest kin of Dr. De Santos.
Held: Maloles is not a complusory heir. Ordinarily,
probate proceedings are instituted only after the death of
the testator. However, Article 838 authorizes the filing of
a petition for probate of the will filed by the testator
himself. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than
after his death. Fraud, intimidation and undue influence
are also minimized. Further, if a will does not comply with
the requirements prescribed by law, the same may be
corrected at once. Therefore, the probate during the
testator's life will lessen the number of contest upon wills.
As the only and nearest collateral relative of the
decedent, Maloles can inherit from the latter only in the
case of intestacy. Since decedent has left a will which has
already been probated and disposes of all his properties,
Maloles II can inherit only if the said will is annulled.
PASCUAL vs. CA
Facts: Consolacion and Remedios are the niece and
granddaughter, respectively, of the late Canuto. Lot 2 was
co-owned by Catalina, Canuto, and Victoriano. Canuto
owned Lots No. 2-A and 2-E. Canuto sold the lots in favor
of Consolacion. The surviving children of Canuto affirmed
the sale. Remedios filed a complaint against Consolacion,
claiming that she the owner of Lot Nos. 2-A and 2-E
because Catalina devised these lots to her in Catalinas
last will and testament.
Held: Remedios is not a real party-in-interest. Remedios
anchored her claim over Lot Nos. 2-A and 2-E on the
devise of these lots to her under Catalinas last will.
However, the trial court found that the probate court did
not issue any order admitting the last will to probate.
Remedios does not contest this finding. Indeed, during
the trial, Remedios admitted that the probate proceeding
is still pending.

granted, subject to the result of the probate of the codicil.

Anselmo then sold the land to the Camayas. The probate
court declared the title issued to the Camayas void, and it
voided the sale as well.
Held: The probate court does not have the power to
annul the title to lands subject of a testate proceeding
pending before it. The probate court exceeded its
jurisdiction when it further declared the deed of sale and
the titles of the Camayas null and void. A probate court
cannot adjudicate or determine title to properties claimed
to be a part of the estate and which are equally claimed
to belong to outside parties. All that said court could do is
to determine whether or not they be included in the
inventory. Though the judgment in the partition case had
become final and executory, it specifically provided in its
dispositive portion that the decision was without prejudice
to the probate of the codicil. Thus, the rights of the
prevailing parties in said case were subject to the
outcome of the probate of the codicil.
LASAM vs. UMENGAN
Facts: Petitioners base their claim of right to possession
on the theory that their father, Rosendo, was the sole
owner of the subject lot by virtue of the newly discovered
last will and testament of Isabel Cuntapay bequeathing
the same to him. On the other hand, respondent hinges
her claim of possession on the legal conveyances made to
her by the children of Isabel Cuntapay by her first
husband. These conveyances were made through the sale
and donation by the said siblings of their respective
portions in the subject lot to respondent.
Held: The purported last will and testament of Isabel
Cuntapay could not be properly relied upon to establish
petitioners right to possess the subject lot because,
without having been probated, the said last will and
testament could not be the source of any right. Before
any will can have force or validity, it must be probated.
Considering that her purported last will and testament
has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of
the subject lot having their respective pro indiviso shares.
Therefore, the conveyances made by the children of
Isabel Cuntapay by her first marriage of their respective
pro indiviso shares in the subject lot to respondent are
valid because the law recognizes the substantive right of
heirs to dispose of their ideal share in the co-heirship
and/co-ownership among the heirs.
SEANGIO vs. REYES general rule
Held: There was no preterition. It was Segundos last
expression to bequeath his estate to all his compulsory
heirs, with the sole exception of Alfredo. Also, Segundo
did not institute an heir to the exclusion of his other
compulsory heirs. Such being the case, the court cannot
pass upon the intrinsic validity of the will. Considering
that the law favors testacy over intestacy, the probate of
the will cannot be dispensed with.
REYNOSO vs. TOLENTINO general rule

CAMAYA vs. PATULANDONG

Facts: Rufina executed a notarized will where she devised
a parcel of land to her grandson Anselmo. Later, she
executed a codicil which stated that her 4 children and
Anselmo would inherit the parcel of land. Anselmo filed an
action for partition against the Patulandongs. It was

Facts: Salvacion died without leaving any descendant or

ascendant. His widow, Gregoria survived him. The
properties left by the deceased are conjugal in nature
because they were acquired during his marriage with his
widow. He left a will and a codicil upon his death, wherein
he made a partition of the conjugal properties between

46
him and his widow, and disposed by way of legacy of the
half corresponding to him. The court approved the
partition without affording the widow an opportunity to
substantiate her opposition and present evidence.
Held: The approval of the partition was erroneous. The
will, in so far as the testator alone made therein a
partition of the conjugal properties by assigning to himself
those which he liked and to the wife those which she did
not like, is illegal. The conjugal property is one between
husband and wife wherein each one, except as to the
administration thereof, has equal rights. Each one has a
right to one-half of these properties and each one
occupies the same position as to its ownership. It is an
encroachment upon these rights of each of the spouses if
one of them could designate which and how much these
properties should correspond to him. Either spouse is
entitled to be heard in the partition of the conjugal
properties in order to defend his or her equal share.
PALACIOS vs. PALACIOS general rule
Facts: Juan Palacios executed his last will and filed a
petition for its approval. In said will, he instituted as his
sole heirs his natural children Antonio and Andrea. Maria
filed a opposition alleging that she is the acknowledged
natural daughter of petitioner but she was completely
ignored in said will thus impairing here legitime. The court
admitted the will to probate. Subsequently, the court
issued an order declaring Maria as natural child of Juan
and annulling the will as it impairs her legitime.
Held: The opposition by Maria cannot be entertained in
this proceeding because its only purpose is to determine
if the will has been executed in accordance with the
requirements of the law, much less if the purpose of the
opposition is to show that the oppositor is an
acknowledged natural child who allegedly has been
ignored in the will for issue cannot be raised here but in a
separate action. This is especially so when the testator, as
in this case, is still alive and has merely filed a petition for
the allowance of his will leaving the effects thereof after
his death. The authentication or probate of the will
decides no other questions than such as touch upon the
capacity of the testator and the compliance with those
requisites or solemnities which the law prescribes for the
validity of a will. It does not determine nor even by
implication prejudge the validity or efficiency of the
provisions; that may be impugned as being vicious or null,
notwithstanding its authentication. The questions relating
to these points remain entirely unaffected, and may be
raised even after the will has been authenticated.
NUGUID vs. NUGUID exception
Facts: Rosario Nuguid died without descendants. She was
survived by her legitimate parents and brother and
sisters. Rosario allegedly executed a holographic will
wherein she instituted her sister Remedios as her sole,
universal heir. Remedios filed a petition for the probate of
said will. The parents of Rosario opposed the petition for
probate on the ground that the will is void. That by the
institution of Remedios as universal heir of the deceased,
they, as compulsory heirs of the deceased in the direct
ascending line, were illegally preterited.
Held: The probate court's area of inquiry is limited to
an examination of, and resolution on, the extrinsic validity
of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the

requisites or solemnities by law prescribed, are the

questions solely to be presented, and to be acted upon,
by the court. However, if it is alleged that the will is void
because of preterition (intrinsic validity), a probate would
be useless, if indeed there was preterition, and no
legacies or devises are involved. In the case, there is no
other provision in the will except the institution of
Remedios as universal heir. The universal institution of
Remedios to the entire inheritance results in totally
abrogating the will. Because, the nullification of such
institution of universal heir without any other
testamentary disposition in the will amounts to a
declaration that nothing at all was written. That
institution, by itself, is null and void. And, intestate
succession ensues.
BALANAY, JR. vs. MARTINEZ exception
Facts: Leodegaria died. She was survived by her husband
and six legitimate children. Felix, Jr. filed a petition for the
probate of his mothers notarial will. In that will,
Leodegaria declared that it was her desire her properties
should not be divided among her heirs during her
husband's lifetime and that their legitimes should be
satisfied out of the fruits of her properties. She devised
and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husband's
one-half share of the conjugal assets. The husband
opposed the probate of the will, but eventually signed an
instrument waiving and renouncing his right in
Leodegarias estate in favor of their six children.
Held: The probate court correctly passed upon the will's
intrinsic validity (question of ownership) even before its
formal validity had been established. Generally, the
probate of a will is mandatory and it is the duty of the
court to pass first upon its formal validity, except in
extreme cases where the will is on its face is intrinsically
void. The probate court, however, was not correct in
declaring the will intrinsically void. Although Leodegaria
was a co-owner of the conjugal lands, her share was
inchoate and pro-indiviso. But that illegal declaration does
not nullify the entire will. This claim of Leodegaria would
ordinarily be void because the shares of the spouses are
merely undivided or ideal; however, since the husband
consented, the defect is cured, and the husband is
deemed to have renounced his share. This is, of course,
without prejudice to the rights of creditors.
NEPOMUCENO vs. CA exception
Facts: Martin Jugo named and appointed herein Sofia as
his sole and only executor of his estate. The will clearly
stated that the testator was legally married to a certain
Rufina by whom he had legitimate children. He stated
that since 1952, he had been estranged from his lawfully
wedded wife and had been living with Sofia as husband
and wife. The testator and Sofia were married. The
testator devised to his forced heirs, namely his legal wife
and children his entire estate. He devised the free portion
thereof to herein Sofia. Sofia filed a petition for the
probate of the will of the deceased. The legal wife and her
children filed an opposition. The prbate court declared the
will validly drawn.
Held: The probate court acted within its jurisdiction when,
after declaring the will to be validly drawn, it went on to
pass upon the intrinsic validity of the will and declared the
devise in favor of Sofia void. The general rule is that in
probate proceedings, the court's area of inquiry is limited

47
to an examination and resolution of the extrinsic validity
of the will. The rule, however, is not inflexible and
absolute. Given exceptional circumstances, the probate
court is not powerless to do what the situation constrains
it to do and pass upon certain provisions of the will.
Rufina cannot inherit because persons who are living in
adultery or concubinage are prohibited from having such
right. In view of these unusual provisions of the will, which
are of dubious legality, the court acted correctly in
passing upon the will's intrinsic validity even before its
formal validity had been established.
AJERO vs. CA exception
Held: As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions
of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares
with her father's other heirs.
Article 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 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.
The grounds given in Art. 839 are exclusive, thus, no
other ground can serve to disallow a will. However,
despite the exclusivity given, it seems that there are
other grounds: (1) Minority; (2) Revocation; (3) Forgery
1ST GROUND: FORMALITIES NOT COMPLIED
1. on the formalities under 804-809 in case of notarial
wills; and
2. in case of holographic wills it must be:
a. entirely written, signed and dated in the handwriting
of the testator,
b. in the language known to the testator
c. must be executed at the time when holographic wills
are allowed.
2ND GROUND: INSANITY covered by article 779
refers to the soundness of mind of the testator at the time
of execution of the will.
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.
3RD GROUND: FORCE, DURESS, FEAR or THREAT
These grounds connotes the idea of coercion, mental or
physical. While their presence in a contract renders it
voidable (and therefore susceptible of ratification), their
presence in a will renders the will VOID.
When is there violence? There is violence when in order to
wrest consent, serious or irresistible force is employed.
(Art. 1335)
4TH GROUND: UNDUE AND IMPROPER INFLUENCE
Undue Influence connotes the idea of coercion by virtue
of which the judgment of the testator is displaced, and he
is induced to do that which he otherwise would not have
done. It is present when he does something because of
fear or a desire for peace or from any other feeling which
he is unable to resist. There is undue influence when a
person takes improper advantage of his power over the
will of another, depriving the latter of a reasonable
freedom of choice. If undue influence has vitiated only
some of the dispositions, the rest should be considered
valid. He who alleges undue influence must prove the
same.
Cases where there is no undue influence:
There is no undue influence just because a testator
has made his mistress, or his illegitimate child by her,
the heir to the entire free portion. Mere affection,
even if illegitimate, is not undue influence, as long as
the giving was voluntary.
Mere inequality, no matter how great, in distributing
the estate is not evidence of undue influence.
Mere presence of favored relatives at the time of the
execution of the will does not necessarily mean undue
influence. The fact that some heirs are more favored
than others is proof of neither fraud nor undue
influence. Diversity of apportionment is the usual
reason for making a testament; otherwise, the
decedent might as well die intestate. No undue
influence is present just because blood relatives, other
than compulsory heirs, have been omitted, for while
blood ties are strong in the Philippines, it is the
testators right to disregard non-compulsory heirs.
No undue influence is present when a daughter tries
by earnest persuasion and entreaty to make her
mother make a new will.
Testamentary disposition that the heirs should not
inquire into other property, and that they should
respect the distribution made in the will, under
penalty of forfeiture of their shares in the free
disposal, do not suffice to prove undue influence or
fraud. Said dispositions appear motivated by the
desire to prevent prolonged litigation which, as shown
by ordinary experience, often results in a sizeable
portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are
valid or not is a matter to be litigated upon on another
occasion.
5TH GROUND: SIGNATURE IS OBTAINED BY FRAUD
Fraud is the use of insidious words or machinations to
convince a person to do what ordinarily he would not
have done. Fraud in a contract renders it voidable. But in
a will, it is a cause for disallowance because will is void.

48
When a beneficiary is the person who prepared or drafted
the will, a suspicion is created that fraud or undue
influence was exercised. It should be observed, however,
that such suspicion can be thrown aside, if the court is
fully convinced that the document expresses the true will
of the testator. Take note that Fraud and Undue Influence
are mutually repugnant and exclude each other. Their
joining as grounds for opposing probate shows the
absence of definite evidence against the validity of the
will.
6TH GROUND: MISTAKE or LACK OF TESTAMENTARY
INTENT The testator is acting because of his mistake
and the testator has no intent to make a will. Example: A
man signed a document not believing it to be a will. This
mistake is a ground for disallowance.
Distinguish Revocation from Disallowance
REVOCATION
Is a voluntary act of the
testator.

DISALLOWANCE
Is given by judicial order.

May be with or without

cause.
May be partial or total.

Must always be for legal a

cause.
Is always total.

AJERO vs. CA
Held: These lists are exclusive; no other grounds can
serve to disallow a will. Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved
are:
(1) whether the instrument submitted is, indeed, the
decedent's last will and testament;
(2) whether said will was executed in accordance with the
formalities prescribed by law;
(3) whether
the
decedent
had
the
necessary
testamentary capacity at the time the will was
executed; and
(4) whether the execution of the will and its signing were
the voluntary acts of the decedent.
END OF 1st EXAM COVERAGE

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