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Wills; Testamentary Disposition (2006) Don died after executing a Last Will and Testament leaving his estate

valued at P12 Million to his common-law wife Roshelle. He is survived by his brother Ronie and his half-sister Michelle. (1) Was Don's testamentary disposition of his estate in accordance with the law on succession? Whether you agree or not, explain your answer. Explain. SUGGESTED ANSWER: Yes, Don's testamentary disposition of his estate is in accordance with the law on succession. Don has no compulsory heirs not having ascendants, descendants nor a spouse [Art. 887, New Civil Code]. Brothers and sisters are not compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise incapacitated to inherit from him. A common-law wife is not incapacitated under the law, as Don is not married to anyone.

Wills; Codicil; Institution of Heirs; Substitution of Heirs (2002) By virtue of a Codicil appended to his will, Theodore devised to Divino a tract of sugar land, with the obligation on the part of Divino or his heirs to deliver to Betina a specified volume of sugar per harvest during Betinas lifetime. It is also stated in the Codicil that in the event the obligation is not fulfilled, Betina should immediately seize the property from Divino or latters heirs and turn it over to Theodores compulsory heirs. Divino failed to fulfill the obligation under the Codicil. Betina brings suit against Divino for the reversion of the tract of land. a) Distinguish between modal institution and substation of heirs. (3%) b) Distinguish between simple and fideicommissary substitution of heirs. (2%) c) Does Betina have a cause of action against Divino? Explain (5%)
SUGGESTED ANSWER:

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

A. A MODAL INSTITUTION is the institution of an heir made for a certain purpose or cause (Arts. 871 and 882, NCC). SUBSTITUTION is the appointment of another heir so that he may enter into the inheritance in default of the heir originality instituted. (Art. 857, NCC). B. In a SIMPLE SUBSTITUTION of heirs, the testator designates one or more persons to substitute the heirs instituted in case such heir or heirs should die before him, or should not wish or should be incapacitated to accept the inheritance. In a FIDEICOMMISSARY SUBSTITUTION, the testator institutes a first heir and charges him to preserve and transmit the whole or part of the inheritance to a second heir. In a simple substitution, only one heir inherits. In a fideicommissary substitution, both the first and second heirs inherit. (Art. 859 and 869, NCC) C. Betina has a cause of action against Divino. This is a case of a testamentary disposition subject to a mode and the will itself provides for the consequence if the mode is not complied with. To enforce the mode, the will itself gives Betina the right to compel the return of the property to the heirs of Theodore. (Rabadilla v. Conscoluella, 334 SCRA 522
[2000] GR 113725, 29 June 2000).

Wills; Formalities (1990) (1) If a will is executed by a testator who is a Filipino citizen, what law will govern if the will is executed in the Philippines? What law will govern if the will is executed in another country? Explain your answers. (2) If a will is executed by a foreigner, for instance, a Japanese, residing in the Philippines, what law will govern if the will is executed in the Philippines? And what law will govern if the will is executed in Japan, or some other country, for instance, the U.S.A.? Explain your answers.
SUGGESTED ANSWER:

(1) a. If the testator who is a Filipino citizen executes his will in the Philippines, Philippine law will govern the formalities. b. If said Filipino testator executes his will in another country, the law of the country where he maybe or Philippine law will govern the formalities. (Article 815, Civil Code}

SUGGESTED ANSWER:

(2) a. If the testator is a foreigner residing in the Philippines and he executes his will in the Philippines, the law of the country of which he is a citizen or Philippine law will govern the formalities. b. If the testator is a foreigner and executes his will in a foreign country, the law of his place of residence or the law of the country of which he is a citizen or the law of the place of execution, or Philippine law will govern the formalities (Articles 17. 816. 817. Civil Code).
POSSIBLE ADDITIONAL ANSWERS:

a. In the case of a Filipino citizen, Philippine law shall govern substantive validity whether he executes his will in the Philippines or in a foreign country. b. In the case of a foreigner, his national law shall govern substantive validity whether he executes his will in the Philippines or in a foreign country. Wills; Holographic Wills; Insertions & Cancellations (1996) Vanessa died on April 14, 1980, leaving behind a holographic will which is entirely written, dated and signed in her own handwriting. However, it contains insertions and cancellations which are not authenticated by her signature. For this reason, the probate of Vanessa's will was opposed by her relatives who stood to inherit by her intestacy. May Vanessa's holographic will be probated? Explain.
SUGGESTED ANSWER:

Yes, the will as originally written may be probated. The insertions and alterations were void since they were not authenticated by the full signature of Vanessa, under Art. 814, NCC. The original will, however, remains valid because a holographic will is not invalidated by the unauthenticated insertions or alterations (Ajero v. CA, 236 SCRA 468].
ALTERNATIVE ANSWER:

It depends. As a rule, a holographic will is not adversely affected by Insertions or cancellations which were not authenticated by the full signature of the testator (Ajero v. CA, 236 SCRA 468). However, when the insertion or cancellation amounts to revocation of the will, Art.814 of the NCC does not apply but Art. 830. NCC. Art. 830 of the NCC does not require the testator to authenticate his cancellation for the effectivity of a revocation effected through such cancellation (Kalaw v. Relova, 132 SCRA 237). In the Kalaw case, the original holographic will designated only one heir as the only substantial provision which was altered by substituting the original heir with another heir. Hence, if the unauthenticated cancellation amounted to a revocation of the will, the will may not be probated because it had already been revoked. Wills; Holographic Wills; Witnesses (1994) On his deathbed, Vicente was executing a will. In the room were Carissa, Carmela, Comelio and Atty. Cimpo, a notary public. Suddenly, there was a street brawl which caught Comelio's attention, prompting him to look out the window. Cornelio did not see Vicente sign a will. Is the will valid?
SUGGESTED ANSWERS:

a) Yes, The will is valid. The law does not require a witness to actually see the testator sign the will. It is sufficient if the

witness could have seen the act of signing had he chosen to do so by casting his eyes to the proper direction. b) Yes, the will is valid. Applying the "test of position", although Comelio did not actually see Vicente sign the will, Cornelio was in the proper position to see Vicente sign if Cornelio so wished. Wills; Joint Wills (2000) Manuel, a Filipino, and his American wife Eleanor, executed a Joint Will in Boston, Massachusetts when they were residing in said city. The law of Massachusetts allows the execution of joint wills. Shortly thereafter, Eleanor died. Can the said Will be probated in the Philippines for the settlement of her estate? (3%)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
SUGGESTED ANSWER:

Yes, the will may be probated in the Philippines insofar as the estate of Eleanor is concerned. While the Civil Code prohibits the execution of Joint wills here and abroad, such prohibition applies only to Filipinos. Hence, the joint will which is valid where executed is valid in the Philippines but only with respect to Eleanor. Under Article 819, it is void with respect to Manuel whose joint will remains void in the Philippines despite being valid where executed.
ALTERNATIVE ANSWER:

The will cannot be probated in the Philippines, even though valid where executed, because it is prohibited under Article 818 of the Civil Code and declared void under Article 819, The prohibition should apply even to the American wife because the Joint will is offensive to public policy. Moreover, it is a single juridical act which cannot be valid as to one testator and void as to the other. Wills; Probate; Intrinsic Validity (1990) H died leaving a last will and testament wherein it is stated that he was legally married to W by whom he had two legitimate children A and B. H devised to his said forced heirs the entire estate except the free portion which he gave to X who was living with him at the time of his death. In said will he explained that he had been estranged from his wife W for more than 20 years and he has been living with X as man and wife since his separation from his legitimate family. In the probate proceedings, X asked for the issuance of letters testamentary in accordance with the will wherein she is named sole executor. This was opposed by W and her children. (a) Should the will be admitted in said probate proceedings? (b) Is the said devise to X valid? (c) Was it proper for the trial court to consider the intrinsic validity of the provisions of said will? Explain your answers,
SUGGESTED ANSWER:

(a) Yes, the will may be probated if executed according to the formalities prescribed by law. (b) The institution giving X the free portion is not valid, because the prohibitions under Art. 739 of the Civil Code on donations also apply to testamentary dispositions (Article 1028, Civil Code), Among donations which are considered void are those made between persons who were guilty of adultery or concubinage at the time of the donation.

(c) As a general rule, the will should be admitted in probate proceedings if all the necessary requirements for its extrinsic validity have been met and the court should not consider the intrinsic validity of the provisions of said will. However, the exception arises when the will in effect contains only one testamentary disposition. In effect, the only testamentary disposition under the will is the giving of the free portion to X, since legitimes are provided by law. Hence, the trial court may consider the intrinsic validity of the provisions of said will.
(Nuguid v. Nuguid, etal.. No. L23445, June 23, 1966, 17 SCRA; Nepomuceno v. CA, L-62952, 9 October 1985. 139 SCRA 206).

Wills; Probate; Notarial and Holographic Wills (1997) Johnny, with no known living relatives, executed a notarial will giving all his estate to his sweetheart. One day, he had a serious altercation with his sweetheart. A few days later, he was introduced to a charming lady who later became a dear friend. Soon after, he executed a holographic will expressly revoking the notarial will and so designating his new friend as sole heir. One day when he was clearing up his desk, Johnny mistakenly burned, along with other papers, the only copy of his holographic will. His business associate, Eduardo knew well the contents of the will which was shown to him by Johnny the day it was executed. A few days after the burning incident, Johnny died. Both wills were sought to be probated in two separate petitions. Will either or both petitions prosper?
SUGGESTED ANSWER:

The probate of the notarial will will prosper. The holographic will cannot be admitted to probate because a holographic will can only be probated upon evidence of the will itself unless there is a photographic copy. But since the holographic will was lost and there was no other copy, it cannot be probated and therefore the notarial will will be admitted to probate because there is no revoking will.
ADDITIONAL ANSWERS:

1. In the case of Gan vs. Yap (104 Phil 509), the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen or read such will. The will itself must be presented otherwise it shall produce no effect. The law regards the document itself as material proof of authenticity. Moreover, in order that a will may be revoked by a subsequent will, it is necessary that the latter will be valid and executed with the formalities required for the making of a will. The latter should possess all the requisites of a valid will whether it be ordinary or a holographic will, and should be probated in order that the revocatory clause thereof may produce effect. In the case at bar, since the holographic will itself cannot be presented, it cannot therefore be probated. Since it cannot be probated, it cannot revoke the notarial will previously written by the decedent. 2. On the basis of the Rules of Court, Rule 76, Sec. 6, provides that no will shall be proved as a lost or destroyed will unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. Hence, if we abide strictly by the two-witness rule to

prove a lost or destroyed will, the holographic will which Johnny allegedly mistakenly burned, cannot be probated, since there is only one witness, Eduardo, who can be called to testify as to the existence of the will. If the holographic will, which purportedly, revoked the earlier notarial will cannot be proved because of the absence of the required witness, then the petition for the probate of the notarial will should prosper. Wills; Revocation of Wills; Dependent Relative Revocation (2003) Mr. Reyes executed a will completely valid as to form. A week later, however, he executed another will which expressly revoked his first will, which he tore his first will to pieces. Upon the death of Mr. Reyes, his second will was presented for probate by his heirs, but it was denied probate
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

due to formal defects. Assuming that a copy of the first will excluded by a legitimate son of the decedent [Art. 887, New is available, may it now be admitted to probate and given effect? Why?
SUGGESTED ANSWER:

Yes, the first will may be admitted to probate and given effect. When the testator tore first will, he was under the mistaken belief that the second will was perfectly valid and he would not have destroyed the first will had he known that the second will is not valid. The revocation by destruction therefore is dependent on the validity of the second will. Since it turned out that the second will was invalid, the tearing of the first will did not produce the effect of revocation. This is known as the doctrine of dependent relative revocation
(Molo v. Molo, 90 Phil 37.)
ALTERNATIVE ANSWERS:

No, the first will cannot be admitted to probate. While it is true that the first will was successfully revoked by the second will because the second will was later denied probate, the first will was, nevertheless, revoked when the testator destroyed it after executing the second invalid will.
(Diaz v. De Leon, 43 Phil 413 [1922]).

Wills; Testamentary Disposition (2006) Don died after executing a Last Will and Testament leaving his estate valued at P12 Million to his common-law wife Roshelle. He is survived by his brother Ronie and his half-sister Michelle.
(1) Was Don's testamentary disposition of his estate in accordance with the law on succession? Whether you agree or not, explain your answer. Explain.
SUGGESTED ANSWER: Yes,

Don's testamentary disposition of his estate is in accordance with the law on succession. Don has no compulsory heirs not having ascendants, descendants nor a spouse [Art. 887, New Civil Code]. Brothers and sisters are not compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise incapacitated to inherit from him. A common-law wife is not incapacitated under the law, as Don is not married to anyone.
(2) If Don failed to execute a will during his lifetime, as his lawyer, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: After

paying the legal obligations of the estate, I will give Ronie, as full-blood brother of Don, 2/3 of the net estate, twice the share of Michelle, the half-sister

who shall receive 1/3. Roshelle will not receive anything as she is not a legal heir [Art. 1006 New Civil Code].
(3) Assuming he died intestate survived by his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson

will be entitled to the entire P12 Million as the brother and sister will be excluded by a legitimate son of the decedent. This follows the principle of proximity, where "the nearer excludes the farther."
(4) Assuming further he died intestate, survived by his father Juan, his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson

will still be entitled to the entire P12 Million as the father, brother and sister will be Civil Code]. This follows the principle that the descendants exclude the ascendants from inheritance. Wills; Testamentary Intent (1996) Alfonso, a bachelor without any descendant or ascendant, wrote a last will and testament in which he devised." all the properties of which I may be possessed at the time of my death" to his favorite brother Manuel. At the time he wrote the will, he owned only one parcel of land. But by the time he died, he owned twenty parcels of land. His other brothers and sisters insist that his will should pass only the parcel of land he owned at the time it was written, and did not cover his properties acquired, which should be by intestate succession. Manuel claims otherwise. Who is correct? Explain.
SUGGESTED ANSWER:

Manuel is correct because under Art. 793, NCC, 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. Since Alfonso's intention to devise all properties he owned at the time of his death expressly appears on the will, then all the 20 parcels of land are included in the devise.

DONATION
Donation vs. Sale (2003) a) May a person sell something that does not belong to him? Explain. b) May a person donate something that does not belong to him? Explain. 5%
SUGGESTED ANSWER:

(a) Yes, a person may sell something which does not belong to him. For the sale to be valid, the law does not require the seller to be the owner of the property at the time of the sale. (Article 1434, NCC). If the seller cannot transfer ownership over the thing sold at the time of delivery because he was not the owner thereof, he shall be liable for breach of contact. (b) As a general rule, a person cannot donate something which he cannot dispose of at the time of the donation (Article 751, New Civil Code). Donations; Condition; Capacity to Sue (1996) Sometime in 1955, Tomas donated a parcel of land to his stepdaughter Irene, subject to the condition that she may not sell, transfer or cede the same for twenty years. Shortly thereafter, he died. In 1965, because she needed money for

medical expenses, Irene sold the land to Conrado. The following year, Irene died, leaving as her sole heir a son by the name of Armando. When Armando learned that the land which he expected to inherit had been sold by Irene to Conrado, he filed an action against the latter for annulment of the sale, on the grou

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