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Testamentary Succession
Section 1. Wills
Subsection 1. Wills in General
ART. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
A. Essential Elements & Characteristics
1. The making of a will is a statutory right.
Reyes v. CA
A will is the testator speaking after death. Its provisions
have substantially the same force. & effect in the probate court
as if the testator stood before the court in full life like making the
declarations by word of mouth as they appear in the will.
2. It is a unilateral act. No acceptance of transferees is needed.
3. It is a solemn or formal act.
4. There must be animus testandi (intent to make a will).
5. The testator must be capacitated to make a will.
6. The will is strictly a personal act in all matters that are
essential.
Rabadilla v. CA
A will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his
death.
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 followed. Thus, a will cannot be a subject
of a compromise agreement which would thereby defeat the
very purpose of making a will.
7. It is effective mortis causa (produces effects only after death
of the testator).
8. It is essentially revocable or ambulatory.
9. It is free from vitiated consent (executed freely, knowingly,
and voluntarily).
10. It is an individual act.
B. Distinguish between "last will" & "testament"
Testament disposes of personal property while will disposes of real
property.
ART. 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.
A. The mechanical act of drafting may be entrusted to another, as long
as the disposition itself expresses the testator's desires, and all the
formalities of law are complied with.
ART. 785. The duration or efficacy of the designation of heirs, devisees
or legatees, or the determination of 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.
ART. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to
1. Legitimate
children
&
other
legitimate
descendents
(grandchildren, great grandchildren) without prejudice to the
principle the nearer relatives exclude the more distant ones
2. Legitimate parents & other ascendants in the absence of no. 1
3. Spouse
4. Illegitimate children and other descendents whether legitimate
or illegitimate
If the testator dies without compulsory heirs, the estate goes to
intestate heirs, such as siblings, nephews, nieces, etc.]
ART. 794. Every devise{real property} or legacy{personal property}
shall convey{or pass or transfer} 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.
A. General Rule: the entire interest of the testator in the property is
given not more, not less.
B. Example:
The owner of the house who devises the same, transfers
ownership over the entire house. If he were a mere co-owner or
usufructuary he conveys his share in the co-ownership or his
usufructuary right{This is true if the usufruct shall subsist after the
death of the usufructuary because as a rule usufruct is extinguished
upon the death of the usufructuary(Art. 603). An example of a usufruct
which is not extinguished upon the death of the usufructuary is when
the deed of usufruct expressly provides that its duration is for a
specified number of years & will subsist despite the death of the
usufructuary and until the expiration of the period agreed upon.} No
more, no less.
C. Exceptions:
1. He can convey a lesser interest if such intent clearly appears
in the will.
2. 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
such part or interest, UNLESS the testator expressly declares that
he gives the thing in its entirety."
3. He can even convey property which he very well know does
not belong to him, provided that it also does not belong to the
legatee or devisee.
D. Example:
A & B are co-owners of a residential lot consisting of 1,000
square meters co-owned by them equally.
1. If A devises to C his interest in the said lot, how many square
meters will C inherit?
ANS: C will inherit 500 square meters because that is the interest
which A could devise in the property disposed of.
2. May A devise to C only 300 square meters?
ANS: Yes, the testator could devise in the property disposed of a
lesser interest than what the testator could devise.
3. May A devise to C the entire 1,000 square meters?
ANS: Yes, under Art. 929 (implied order to acquire to the
executor). It is even allowed by law to devise or bequeathed something
which the testator does not own at the time of the making of the will
under Articles 930 & 931.
ART. 795. The validity of a will as to its form{extrinsic validity}
depends upon the observance of the law in force at the time it is
a person merely has his back turned, the signing is done in his
presence since he could have cast his eyes in the proper direction. On
the other hand, if there is a curtain separating the testator and the
witnesses from the other witness, there will be a physical obstruction
and will cannot be valid.]
5. The testator or the person requested by him to write his name, & the
instrumental witnesses of the will shall sign on each and every page,
except
the last, on the left margin
The law said page not sheet. A sheet has two pages, the
front and back side. If both are used, both must be signed
If the last page, contains only the attestation clause, the
testator need not sign on the margin
If the whole, including the attestation clause, consist of only 1
page, no marginal signatures are needed since this would be
purposeless since the page already has all the necessary
signatures
Whenever the marginal signatures are required, although the
law says on the left margin, the purpose is served even if they
are on the right, top, or bottom margin, for the only purpose is to
identify the pages used and thus prevent fraud.
6. All pages shall be numbered correlatively in letters placed on the
upper part of each page
[Note: Correlative numbering in letter means one, two, etc. But
numbers are sufficient such as page 1, 2, 3, etc.]
7. The attestation clause shall provide:
a) number of pages used
b) the testator signed, or expressly caused another to sign) the
will & every page thereof in the presence of the instrumental
witnesses
[NOTE: absence of the attestation clause is a fatal defect]
c) the instrumental witnesses witnessed & signed the will & all
the pages thereof in the presence of the testator & one another
d) while the testator is required to know the language of the will,
the witnesses are not required to know the language of the
attestation clause. It is sufficient that it{the language of the
attestation clause} be translated to them.
Example of an attestation clause:
This will consisting of 3 pages was signed by the testator
and by all of us in the presence of all of us and the testator.
Sgd(Signed A)
Sgd(Signed B)
Sgd(Signed C)
[Note: The testator does not sign in the attestation clause.]
B. Other comments on formalities of notarial will
1. It is not essential that the will has to be read to the witnesses
or that they know the contents. While they are required to
participate in the acknowledgment in the notary public, still what
they will acknowledged is not the will but the attestation clause
2. It is not necessary that the notarial will be dated.
Why is it that the law does not require that the notarial will be
dated?
ANS: The reason is, if the notarial will is not dated the date
of acknowledgment before the notary public is deemed the day
of the execution of the will.
NOT
but
and
and
of
B. The witness need not know how to read & write in the will's
language. After all, he doesn't even need to know the contents of the
will.
[MEMORIZE]
ART. 821. The following are disqualified from being a witness to a
will{notarial}:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony
A. Is the spouse or son or daughter of the testator qualified as witness
to the latter's will?
ANS: Yes, provided the spouse or son or daughter of the testator
possesses all the qualifications under Art. 820 and none of the
disqualifications under Art. 821. The relationship of the witness to the
testator is not a disqualification.
B. It is not essential that the witness be a citizen of the Philippines for
domicile is what the law merely requires. Domicile is the place of
habitual residence.
JRT
ART. 822. If the witness 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.
JRT
VERY VERY IMPORTANT
[Memorize] ART. 823. If a person{witness} attests the execution of a
will {and}, to whom or to whose spouse, or parent {of the witness},
or child {of the witness}, a devise or legacy is given by such will, such
A. Formalities of Codicils
a) notarial or ordinary codicils
b) holographic codicils
[Note: if a codicil is not executed with the formalities of a will, it is void.
Also, a valid will can never be revoked, expressly or impliedly, by an
invalid codicil.]
ART. 827. If a will, executed a required by this Code, incorporates into
itself by reference any document or paper{such as inventory of
goods and schedule of receivables if the testator is a trader}, such
document or paper shall not be considered as part of the will unless
the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books{at least some
of them AND the last page be signed} of account or inventories.
A. Said documents or inventories, when referred to in a notarial will, do
not need any attestation clause, because the attestation clause of the
will itself is sufficient. (Unson v. Abdlla)
B. Requisites:
1. The document or paper referred to in the will must be in
existence at the time of the execution of the will. Therefore:
a) reference to future papers will render the incorporation
void, though the will is still valid.
b) the will must refer to the papers as having been made; it
is not enough that in truth it was already in existence.
2. The will must clearly describe and identify (location, general
appearance) the same, stating among other things the number
of pages thereof. (This is true even in voluminous books of
accounts and inventories)
3. It must be identified by clear and satisfactory proof as the
document or paper referred to therein. (Parol evidence or
evidence aliunde is needed here)
4. It must be signed by the testator and the (same instrumental)
witnesses on each and every page, except in case of voluminous
books of account or inventories.
C. Generally, incorporation can be done only in notarial wills. But, if a
holographic will has at least 3 credible & qualified witnesses, then
there can be a proper incorporation by reference. Moreover, if a
holographic will (w/out witnesses) refers to a document entirely
written, dated, & signed in the handwriting of the testator, there can
also be a proper incorporation by reference.
Subsection 6.
Dispositions
Revocation
of
Wills
and
Testamentary
B. The heirs do not acquire any vested right to the disposition of a will
until after the testator's death.
C. Provisions in a will which are ordered to be effected immediately,
even during the testator's lifetime, are all right, provided the proper
formalities and requisites{of a donation such as public document, if
real property is donated, and acceptance on the part of the donee} are
present but they are not{they are donations inter vivos} really
testamentary dispositions.
[JRT] ART. 829. A revocation done outside the Philippines, by a person
who does not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or
according to the law of the place in which the testator had his domicile
at the time; and if the revocation takes place in this country, when it is
in accordance with the provisions of this Code.
A. Revocation Outside the Philippines
1. if not domicile in the Philippines
a. follow of place where will was made; or
b. follow of law of place where testator is domicile
2. if domicile in the Philippines
a. follow the law of the Philippines; or
b. follow the rule of lex loci celebrationes of that revocation
B. Revocation in the Philippines
Follow the Philippine law. This is true whether or not the domicile
is in the Philippines.
[Memorize] ART. 830. No will shall be revoked except in the following
cases: {Ways or manner of revocation}
(1) By implication{or operation} of law; or
(2) By some will, codicil, or other writing{deed of revocation
or affidavit} executed as provided in the case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn,
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due
execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
A. Revocation 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.
[Note, however, the revocation of a legacy does not operate to revoke
the entire will. Only total and absolute revocation of the entire will will
prevent the probate of the revoked testament.]
Some instances of revocation by implication of law:
1. When after the testator has made a will. He sells, or
donates the legacy or devise.{only the legacy or devise is
revoked and the will remains valid as to the other
provisions}
Example:
T gave A a legacy of his car in his will. A
year later, T sold the car to B for P2M. On his death,
will A get the car, the P2M, or nothing?
B. The law does not favor this, & therefore, efforts to reconcile must be
made.
ART. 832. A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative{not invalid} by
reason of incapacity{if the heir or devisee or legatee designated in
the subsequent will is guilty of an act of ingratitude or act of
unworthiness} of the heirs, devisees or legatees designated
therein{subsequent will}, or by their renunciation.
[IMPORTANT] ART. 833. A revocation of a will based on a false
cause{comment A} or an illegal cause{revoking the original will
by substituting it with another instituting his common law wife as the
sole heir} is null and void{and the original will subsisted}.
A. Example:
T made a will making A his heir. T then learned that A was dead.
So he made another will instituting B as heir. If A turns out to be still
alive, who inherits?
ANS: A inherits because the revocation was based on a false
cause, {and the original will is revived or subsisted.}
[IMPORTANT] ART. 834. The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein it was made
should be revoked.
A. According to Art. 278, voluntary recognition od an 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 is
subsequently revoked, the recognition still remains valid.
B. Reason:
1. While a will is essentially revocable, recognition is not, unless
there be vitiated consent
2. Recognition is not really a testamentary disposition
3. Recognition does not wait for the testator's death to become
effective
[Note: this article only applies if the recognizing will is extrinsically
valid; otherwise, there can be no recognition that can be revoked.]
Subsection 7. Republication and Revival of Wills
ART. 835. The testator cannot republish{or re-establish}, without
reproducing in a subsequent will, the dispositions comtained in a
previous one which is void as to its form{extrinsically void}.
A. Republication the process of re-establishing a will, which has
become useless because it is void{extrinsically}, or had been
{extrinsically valid but} revoked.
B. How Made:
a) re-execution of the original will (original provisions are
COPIED), and this time there must be compliance with the law
b) execution of a codicil (implied republication)
ART. 836. The execution of a codicil referring to a previous will has the
effect of republishing the will as modified by the codicil.
A. Requisites & Limitations of Republication
1. To republish a will void as to its FORM, all the dispositions must be
reproduced or copied in the new or subsequent will.
2. To republish a will valid as to its form but already revoked, the
execution of a codicil which makes reference to the revoked will is
sufficient.
Note: there should be nothing wrong with the RE-EXECUTION.
ART. 837. If after making a will, the testator makes a second will
expressly revoking the first{this will revokes the first dated...},
the revocation of the second will does not revive the first will, which
can be revive only by another will or codicil.
A. Distinction between Republication or Revival
Republication is an act of the TESTATOR. Revival (restoration or reestablishment of revoked will or revoked provisions thereof, to
effectiveness, by virtue of legal provisions) is one that takes place by
OPERATION OF LAW.
B. Revocation takes immediate effect.
C. Examples of Revival
While omission{or preterition} of a compulsory heir{in the
direct line} in the institution of heirs annuls the institution, still if the
omitted dies ahead{or predeceases} of the testator, the
institution is revived{the institution becomes valid} without
prejudice to the right of representation{the legitimate children of the
omitted heir who predeceased the testator shall inherit the legitime of
the latter. Right of representation pertains only to the legitime of the
person represented.}
If after making a will, the testator makes a second will
impliedly{there is complete inconsistency between the first and
second will} revoking the first, the revocation of the second will revives
the first will.
D. Problems
1.
I made 3 wills. Will no. 2 expressly revoked will no. 1. Will no.3
revoked will no. 2. Is will no. 1 revived?
ANS: No, by express provision of Art. 837. The rule is based on
the principle that the revocatory clause of the second will took effect
immediately{or at the time of making the second will} or at the
instant the revoking will{will no. 2} was made. Principle of Instanter
{means that why a will is a disposition mortis causa, a revocation takes
effect inter vivos}.
2.
T made 3 wills. Will no. 2 is completely inconsistent with and
therefore impliedly repeals will no. 1. Later, will no. 3 revokes will no. 2.
Is will no. 1 revived?
ANS: Yes, this is a clear inference from Art. 837 since the article
uses the word expressly it follows that in case of an implied revocation
by the second will, an automatic revival of the first.
3.
A made will no. 1, then will no. 2 expressly revoking the first.
Then, he destroyed will no. 2, and orally expressed his desire that his
first will be followed. Should this be allowed?
ANS: No, the oral expression of the desire to revive cannot be
given effect. He should have made a new will or codicil.
Subsection 8. Allowance and Disallowance of Wills (Probate)
a) the fact that the testator is dead, & the place & time of said
death
b) the fact that the deceased left a will, copy of which has to be
attached to the petition
c) the fact that the will was executed in accordance with legal
requirements
d) names, ages, addresses of the executor & all interested
parties or heirs
e) the probable value & character of the property of the estate
f) the name of the individual whose appointment as executor is
being asked for
g) if the will has not been delivered to the court, the name of the
person who is supposed to have the will in his custody
G. In court, there must be proof of death (actual or presumed),
publication of the notice of hearing, & the compliance of all formalities
required by law
H. The necessary witness must be produced if available, & their
absence must be satisfactorily explained. (Unson v. Abella) even if the
doesn't remember attesting (Rule 76, Sec. 11) or even if he or all
testifies against the validity & due execution, there is still a chance for
the court to allow the will, if it believes that all legal requirements have
been complied with. (Testate Estate of Reymundo) It is error to deny
allowance just because of contradictions among the witnesses.
(Fernandez v. Tantoco) After all, such inconsistencies are not
necessarily fatal to the validity of the will. (Tolentino v. Francisco)
However, as a rule, the testimony of the attesting witnesses should
prevail over expert evidence. (Roxas v. Roxas)
I. For a person to be able to intervene in an administration proceeding,
it is necessary for him to be interested in the estate to be
administered.
interested party one who would be benefited by the estate
(e.g. heir), or one who has a certain claim against the estate,
such as a creditor. (Sumilang v. Ramagosa)
J. Distribution the division, by order of the court having authority,
among those entitled thereto, of the estate of a person, after the
payment of the debts & charges.
K. To be conclusive, the probate must have been conducted by the RTC
of the province:
a) where he has the real estate (in case of NON-RESIDENT
testator)
b) where he resided at the time of his death (in case of a
RESIDENT testator)
[Note: all RTCs have jurisdiction. The residence or domicile only affects
the VENUE. The rule grants jurisdiction to the Court where jurisdiction
is first invoked, without taking venue into account.]
Moreover, it is essential that:
it be proved before the court that he died after having
executed a will (in case of post mortem probate)
and that the will has already been delivered to the Court
The SC is not inclined to annul proceedings regularly had in a
lower court, even if it is not the proper venue, if the net result would
be to have the same proceedings repeated in some other court of
similar jurisdiction. (Rosa Cayetano Cuenco v. CA)