1. Wills

B. Testamentary Succession

Wills – Civil Code, arts. 783-795

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. (667a)

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. (670a)

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)

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 are to be given or applied. (671a)

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. (n)

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. (n)

Article 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a)

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 preferred which will prevent intestacy. (n)

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 disposition had not been made. (n)

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. (n)

Article 794. Every devise or legacy shall cover 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. (n)

Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

1. Testamentary Succession

a. Concept b. Wills i. Characteristics of a Will ii. Effect of simply providing for disinheritance c. Testamentary Capacity d. Kinds of Wills: Notarial and Holographic Wills i. Requisites Common to Notarial and Holographic Wills ii. Requisites of a valid Notarial Will iii. Special Requirements iv. Requisites of a valid Holographic Will e. Codicils and Doctrine of Incorporation by Reference f. Revocation of Wills and Testamentary Dispositions i. Modes ii. Presumption of Revocation iii. Doctrine of Dependent Relative Revocation g. Republication and Revival of Wills h. Allowance and Disallowance of Wills i. Institution and Substitution of Heirs j. Dispositions with a Condition or Term k. Legacies and Devises i. Instances when a legacy or devise is deemed revoked

Concept of a Will

It 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. (Art. 783)

NOTE: A testator may dispose of the free portion and make testamentary provisions concerning the legitime, but may not impair compulsory heirs’ legitimes. (Art. 886; Balane, supra, p. 38)

Characteristics of a Will

• Unilateral — does not need the approval of any other person (implied in Art. 783)
• Strictly Personal Act (Arts. 784-785)
• The making of a will is strictly a personal act; it cannot be left to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney (Art. 784)
• The following acts or stipulations may not be delegated to third persons:
• Designation of heirs, devisees, or legatees by name, subject to the exception in Art. 786 for property or sums of money left in general to specified classes or causes; (Balane, supra, p.41)
• Duration or efficacy of the designation of heirs, devisees or legatees;
• Determination of the portions which the heirs, devisees, or legatees are to take, when referred to by name; and
• Determination of whether or not the testamentary disposition is to be operative (Arts.785 and 787)

NOTE: This is entirely different from the acceptance or renunciation by the heir as beneficiary. The heir has the freedom to accept or renounce the testamentary benefit.

• Acts which may be delegated to third persons (Art. 786):
• Distribution of specific property or sums of money that the testator may leave in general to specified classes or causes; and
• Designation of the persons, institutions or establishments to which such property or sums are to be given or applied.
• Free and Voluntary Act — any vice affecting testamentary freedom can cause the disallowance of the will (Art. 839)
• Formal and Solemn Act — the formalities are essential for validity (Art. 804-814; 820- 821) and will depend if what is executed is an attested or holographic will.
• Act Mortis Causa — takes effect only after the death of the testator (Art. 783)
• Revocable or Ambulatory — Revocable at any time during the testator’s lifetime (Art. 828)
• Individual Act — two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. (Art. 818)

However, separate or individually executed wills, although containing reciprocal provisions (mutual wills) are not prohibited, subject to the rules on disposicion captatoria. (Art. 875)

• Executed with animus testandi – testator knowledgeable he wants to dispose of his property to take effect after his death. (Art. 783)
• Executed with testamentary capacity – see below (Art. 796-803)
• May dispose of property or contain other testamentary provisions; a disposition of property is not indispensable to every will. (Arts. 783 and 834)
• Permitted/Statutory – Purely statutory such that without a law authorizing it, it is not available.

Interpretation of Wills

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. (Art. 788)

The words of a will are to be interpreted in a manner which will give effect to every expression, rather than one which will render any of the expressions inoperative. The interpretation which will prevent intestacy shall be preferred. (Art. 791)

Underlying Principle: Testacy is always preferred than intestacy, because the former is the express will of the decedent whereas the latter is only his implied will. (Balane, supra, p. 45)

Animus Testandi - The testator’s intent (animus testandi), as well as giving effect to such intent, is primordial.

Exception: When the intention of the testator is contrary to law, morals or public policy.

In case of doubt, the interpretation by which the disposition is to be operative or will sustain and uphold the will in all its parts shall be adopted, provided that it can be done consistently with the established rules of law.

Kinds of Ambiguities In Wills (Art. 789)

• Latent or Extrinsic Ambiguities
• those which do not appear on the face of the will
• may be resolved through evidence aliunde or those outside of the will, except oral declarations of the testator.
• Patent or Intrinsic Ambiguities
• those which appear on the face of the will itself
• the testator’s intention is ascertained from the words of the will, taking into consideration the circumstances under which it was made, but excluding the testator’s oral declarations of intention (Civil Code, Art. 789).

In resolving ambiguities in wills, any admissible and relevant evidence may be used to determine the intention of the testator, except for patent or intrinsic ambiguities, for which the words of the will are to be considered in light of the circumstances under which it was made, excluding the testator’s oral declarations of intention (Civil Code, Art. 789).

Oral declarations of the testator as to his intention cannot be used in resolving either latent or patent ambiguities (Balane, supra, p. 46). Why? A dead man cannot refute a tale.

Interpretation By General Meaning

The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. (Art. 790, par. 1)

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. (Art. 790)

Principle of Severability

The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (Art. 792)

Property Acquired After the Execution of the Will

Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of. (Art. 793)

Exception: When a contrary intention expressly appears on the will. (Art. 793)

What is Preterition?

Preterition refers to the situation where a will totally omits one or more compulsory heirs in the direct line, whether living when the will was executed or born after the testator’s death (Civil Code, Art. 854). This can happen when the deceased person makes a will that disposes of all of their property but does not mention one of the heirs who would otherwise be entitled to inherit under the law. In such cases, the institution of heirs is annulled; legacies and devises remain valid insofar as they are not inofficious (Civil Code, Art. 854). This is to prevent the complete disinheritance of an heir and to ensure that the estate is distributed according to the laws of succession.

Exceptions:

• It is clear in the will that he intended to convey a less interest. (Art. 794)
• The testator expressly declares that he gives the thing in its entirety. (Art. 929)

NOTE: In case the testator conveys a part greater than his interest in the thing, and if the person owning such interest in excess of that of the testator does not wish to part with it, the solution in Art. 931 can be applied; the legatee or devisee shall be entitled only to the just value of the interest that should have been acquired. (Balane, supra, p. 49)

Requirements for Validity of Wills

• Extrinsic / Formal Validity – refers to the requirement of form and determined in probate proceedings; it includes:
• Formalities provided by law
• Testamentary Capacity
• Intrinsic / Substantive Validity – refers to the substance of the provisions and generally determined after probate (Balane, supra, p. 50)

Rules on Formal Validity of Wills

The law governing the form of a will depends on the testator’s citizenship and where the will is executed (Civil Code, Arts. 17, 815–817):

• A Filipino executing a will in the Philippines follows Philippine law (Art. 17).
• A Filipino abroad may use a form established by the law of the country where he or she is (Art. 815).
• An alien abroad may use the forms prescribed by the law of the place where he or she resides, the law of his or her own country, or Philippine law (Art. 816).
• An alien executing a will in the Philippines may use the forms prescribed by the law of his or her country or Philippine law (Art. 817).

Testamentary Capacity – Civil Code, arts. 796-803

SUBSECTION 2. Testamentary Capacity and Intent

Article 796. All persons who are not expressly prohibited by law may make a will. (662)

Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)

Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)

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. (n)

Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n)

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. (n)

It is the ability as well as the legal capacity to make a will. It must be present at the time of the execution of the will. (Balane, supra, p. 52)

Who are capacitated to make a will (NES)

• Natural person not expressly prohibited by law to make a will. (Art. 796)
• Eighteen (18) years old and above (Art. 797)
• Of Sound mind, at the time of its execution (Art. 798)

All of these must be present at the time of the execution of the will. (in relation with Art. 801)

Soundness of Mind

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. (Art. 799)

A testator is considered of sound mind if at the time of making of the will he knows the following:

• Nature of the estate to be disposed of - The testator should have a fairly accurate knowledge of what he owns. (Balane, supra, p. 53)
• Proper objects of his bounty - The testator should know under ordinary circumstances, who his relatives in the most proximate degrees, are. (Balane, supra, p. 53)
• Character of the testamentary act (Art. 799) - The testator should know the legal nature of a will. He or she must know that he is executing a document that disposes of his properties gratuitously, which would take effect upon his death. (Balane, supra, p. 53- 54)

Legal Presumption in Favor Of Soundness Of Mind (Art. 800)

General Rule: The law presumes that every person is of sound mind, in the absence of proof to the contrary. Forgetfulness, even if proven, is not proof of unsoundness of mind. (Baltazar v. Laxa — Owner check: Verify and, if confirmed, cite G.R. No. 174489.)

Burden of Proof of Soundness of Mind

• The person who opposes probate of the will has the burden of proof that the testator was not of sound mind (Art. 800).
• The person who maintains the validity of the will must prove that the testator executed it during a lucid interval, when the testator was publicly known to be insane, one month or less before making his will. (Art. 800)

FORMS OF WILLS

Kinds of Wills

• Notarial / Attested – an ordinary will acknowledged before a notary public by the testator and the instrumental witnesses (Art. 805-806)
• Holographic – a will totally handwritten, dated, and signed by the testator alone. (Art. 810)

Formalities Common To Notarial And Holographic Wills:

• Every will must be in writing (Art. 804); and
• Nuncupative (Oral) Wills are not allowed except in the Muslim Personal Laws of the Philippines
• Any form of writing is allowed, provided
• Must be understood by others, and
• Must be capable of being preserved and with permanence. Reason: generally, wills are probated after the death of the testator, so it must have the character of permanence and must be understood by others.
• Executed in a language or dialect known to the testator (Art. 804)
• It must be understood by testator, but it is not required that the will specifically state that it is in a language or dialect known to the testator. (Abada v. Abaja, G.R. No. 147145) This is merely evidentiary and should be proven during probate.
• The presumption that testator knows and understands language or dialect applies only if:
• The will was executed in a language generally spoken in the place of execution; and
• The testator is a native or resident of such locality. (Abangan v. Abangan, G.R. No. L-13431)

Notarial and Holographic Wills; Joint Will – Civil Code, arts. 804-819

SUBSECTION 3. Forms of Wills

Article 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.(n)

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 communicate to him, in some practicable manner, the contents thereof. (n)

Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

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 in fact executed and attested in substantial compliance with all the requirements of article 805. (n)

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 witnessed. (678, 688a)

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.

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a)

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 dispositions. (n)

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 a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

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. (n)

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. (n)

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. (n)

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. (n)

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. (669)

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. (733a)

Requirements for Notarial Wills (Art. 805-806)

• Subscribed by the testator, or by another person writing the testator’s name in the testator’s presence and by his express direction, at the end thereof, in the presence of the witnesses;
• Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another;
• The testator, or another person writing the testator’s name in the testator’s presence and by his express direction, must sign every page, except the last, on the left margin in the presence of the witnesses;
• The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another;
• All pages must be numbered correlatively in letters on the upper part of each page;
• Attestation clause stating:
• The number of pages of the will;
• The fact that the testator or another person writing the testator’s name in the testator’s presence and by his express direction signed the will and every page thereof, in the presence of the witnesses;
• The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another;
• Acknowledgement before a notary public.

Signed at the End

Signing before the end invalidates not only the dispositions that come after, but the entire will, because one of the statutory requirements would not have been complied with. (Azuela v. Court of Appeals, G.R. No. 122880)

Acts of Witnesses

• Attesting – act of witnessing
• Subscribing – act of signing their names in the proper places of the will (Balane, supra, p. 81 citing Taboada v. Rosal, G.R. No. L36033; Caneda v. CA, G.R. No. 103554)

Signing on Every Page, Except the Last

Signing on every page of the will is mandatory, while the place of signing, i.e. left margin, is merely directory. The signature can be affixed anywhere on the page. (Balane, supra)

When No Marginal Signatures are Required

If the entire document consists of only two sheets, the first containing the will and the second, the attestation clause, there need not be any marginal signatures at all. (Abangan v. Abangan, G.R. No. L-13431)

Witnesses Must Sign at the End of Attestation Clause

The attestation clause is a memorandum of the facts attending the execution of the will required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered an act of the witnesses, since the omission of their signatures at the bottom negatives their participation. If an attestation clause not signed at the bottom be admitted, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all witnesses. (Cagro v. Cagro, G.R. No. L-5826; Azuela v. Court of Appeals, G.R. No. 122880)

Attestation Clause Separate from Acknowledgement Clause

An attestation clause is mandatory for attested wills. It is separate and distinct from an acknowledgement clause. These two cannot be merged. (Echavez v. Dozen Construction, G.R. No. 192916)

Two-Fold Purpose of the Acknowledgement

• To safeguard the testator’s wishes long after his demise; and
• To assure that his estate is administered in the manner that he intends it to be done (Lee v. Tambago, A.C. No. 5281)

Certification Need Not be Signed in the Presence of the Testator and Witnesses

Whether or not the notary signed the certification of acknowledgment in the presence of the testator and the witnesses, does not affect the validity of the will. All that must be done is that the testator and the witnesses avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. (Javellana v. Ledesma, G.R. No. L-7179)

Requirements for the Notary Public

• Must be duly commissioned for the locality where the acknowledgment is made (Guerrero v. Bihis, G.R. No. 174144)
• Must not be one of the three attesting witnesses (Cruz v. Villasor, G.R. No. L-32213)

NOTE: There is no requirement that an attested will should be dated. Consequently, a variance between the indicated dates of execution and acknowledgement does not in itself invalidate the will. (Ortega v. Valmonte, G.R. No. 157451)

NOTARIAL/ATTESTED WILLS

Special Requirements for Handicapped Testators

Deaf/Deaf-Mute Testator (Art. 807)

• If able to read — he must read the will personally
• If unable to read — he must designate two persons to read the will and communicate to him, in some practicable manner, its contents.

Blind Testator (Art. 808)

The will shall be read to him twice, once by one of the subscribing witnesses and another by the notary public before whom the will is acknowledged.

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions of the will known to him, so that he may be able to object if they are not in accordance with his wishes. (Garcia v. Vasquez, G.R. No. L-26615)

The special requirements for handicapped testators are mandatory; non-compliance with Articles 807 or 808 will result in nullity and denial of probate. (Balane, supra) However, in the case of Alvarado v. Gaviola, Jr., 226 SCRA 348 , the Supreme Court stated that substantial compliance is sufficient as when the lawyer who drafted the will read the will aloud before the testator (who was suffering from glaucoma), the three instrumental witnesses and the notary public. The court stated: “So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded.“

Rule on Substantial Compliance (Art. 809)

Article 809 is Applicable Only to the Attestation Clause

• In the absence of
• Bad faith
• Forgery
• Fraud
• Undue and improper pressure and influence
• Defects and imperfections in the form of attestation or in the language used therein
• Shall not render the will invalid
• If it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Art. 805.

However, only omissions in the attestation clause which can be supplied by an examination of the will itself or by intrinsic evidence will not be fatal to the validity of the will. The omissions in the attestation clause which can only be proved by extrinsic evidence would result in the invalidation of the attestation clause and ultimately of the will itself. (Caneda v. CA, G.R. No. 103554)

However, the attestation clause indisputably omitted to mention the number of pages comprising the will. Nevertheless, the acknowledgment portion of the will supplied the omission by stating that the will has five pages and was therefore deemed substantial compliance by the Supreme Court under Article 809. (Tanchanco v. Santos, G.R. No. 204793)

HOLOGRAPHIC WILLS

Requirements for a Holographic Will

• It must be written entirely by the testator’s own hand.
• It must be dated by the testator.
• It must be signed by the testator (Art. 810; Balane, supra, p. 130).
• It must be executed in a language or dialect known to the testator (Art. 804).

Date

The date of the will should include the day, month, and year of its execution. (Roxas v. De Jesus, G.R. No. L-38338)

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. (Labrador v. Court of Appeals, G.R. Nos. 83843- 44)

Signed by the Testator

In holographic wills, dispositions written below the testator’s signature must themselves be dated and signed by him to be valid as testamentary dispositions. (Art. 812)

Forms of Holographic Wills

A holographic will is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Art. 810)

Additional Dispositions in a Holographic Will

Additional dispositions in a holographic will must be dated and signed by the testator. (Art. 812) The signature and the date may be done in the following manner:

• Signature and date after each additional disposition, or
• Each additional disposition signed and undated, but the last disposition signed and dated. (Art. 813)

What if additional dispositions are dated but not signed? Only the last disposition that is dated and signed will be valid.

Insertion, Cancellation, Erasure or Alteration in a Holographic Will (Art. 813)

Insertion, Cancellation, Erasure or Alteration in a Holographic Will (Art. 814)

General Rule: If made by the testator contemporaneously with the making of the will, the full customary signature of the testator should authenticate all alterations, cancellations and erasures. If not, the general rule is that the will is valid but the alterations, cancellations and erasures will not be valid. (Velasco v. Lopez, G.R. No. 905).

Exceptions:

• Where there is only one testamentary disposition and the unauthenticated alteration affects the sole disposition (e.g., one heir substituted by another), then the whole will is void (Kalaw v. Relova, 132 SCRA 237)
• Where the alteration or erasure is on the signature and the date, the whole essence is affected making the whole will void. (Spouses Ajero v. Court of Appeals and Clemente Sand, G.R. No. 106720)

Prohibition on Joint Wills

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. (Art. 818)

Joint Will – One document which constitutes the wills of two or more individuals. These kinds of wills are void. (Balane, supra)

If there are several documents, each serving as one independent will, even if they are written on the same sheet, they are not joint wills. (Balane, supra)

NOTE: Joint wills 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. (Art. 819) However, reciprocal wills of foreign nationals jointly probated in another jurisdiction, can be admitted for reprobate in the Philippines since the prohibition is in the making of joint wills, and not on the joint probate of wills. (Vda. De Perez v. Tolete, G.R. No. 76714)

Reasons of Public Policy Against Joint Wills

• Limitation on the modes of revocation. (i.e. one of the testators would not be able to destroy the document without also revoking it as the will of the other testator, or in any event, as to the latter, the problem of unauthorized destruction would come in) (Balane, supra, p. 171)
• Diminution of testamentary secrecy; (Balane, supra)
• Danger of undue influence (Dacanay v. Florendo, G.R. No. L-2071)
• Danger of one testator killing the other (Dacanay v. Florendo, G.R. No. L-2071)

Witnesses to a Notarial Will; Qualifications and Disqualifications – Civil Code, arts. 820-824

SUBSECTION 4. - 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. (n)

Article 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)

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. (n)

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 devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n)

Qualifications:

• Of sound mind (Art. 820)
• At least 18 years of age (Art. 820)
• Not blind, deaf, or dumb (Art. 820)
• Able to read and write (Art. 820)
• Domiciled in the Philippines (Art. 821)
• Must not have been convicted of falsification of a document, perjury, or false testimony (Art. 821)

The above qualifications must be possessed at the time of attesting the will. Their subsequent incompetence shall not prevent the allowance of the will. (Art. 822)

Witnesses to the will need not be “credible” under the naturalization law as they are not tasked to be character witness. In order to be competent as instrumental witnesses there must only be a showing of having the qualification under Articles 820 to 821. It is not mandatory that evidence be first established on record that the witnesses have good standing in the community or that they are honest, upright or reputed to be trustworthy and reliable. (Gonzales v. Court of Appeals, 90 SCRA 183)

Creditors as Witnesses

Creditors can be witnesses to his or her debtor’s will. A mere charge on the estate of the testator for the payment of debts due at the time of death does not prevent the creditor from being a competent witness. (Art. 824)

Codicils and Incorporation by Reference – Civil Code, arts. 825-827

SUBSECTION 5. 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 disposition made in the original will is explained, added to, or altered. (n)

Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)

Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:

(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;

(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and

(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)

Conflict Rules – Civil Code, arts. 16-17

Article 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated by, or by determinations or conventions agreed upon in a foreign country. (11a)

Revocation of Wills – Civil Code, arts. 828-834

SUBSECTION 6. 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. (737a)

Article 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

Article 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills; or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the later wills. (n)

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 designated therein, or by their renunciation. (740a)

Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)

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. (741)

REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

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

Rules/Law that governs  revocation of wills (Art. 829)

• If revocation made in the Philippines – Philippine law
• If revocation is made outside the Philippines and testator is not domiciled in the Philippines:
• Law of the place where the will was made, or
• Law of the place where the testator was domiciled at the time of revocation
• If revocation is made outside the Philippines and testator is domiciled in the Philippines
• Philippine law
• Law of the place of revocation

Modes of Revoking a Will (Art. 830)

A will may be revoked only in the following ways:

• By operation of law, whether wholly or partly.
• By a later will, codicil, or other writing executed with the formalities required for wills.
• By burning, tearing, canceling, or obliterating the will with intent to revoke it, either by the testator or by another person in the testator’s presence and at the testator’s express direction.

Instances of Revocation by Operation of Law

• A decree of legal separation revokes, by operation of law, testamentary dispositions in favor of the offending spouse (Family Code, Art. 63, par. 4)
• Preterition annuls the institution of heirs; valid devises and legacies remain effective insofar as they are not inofficious (Art. 854)
• Legacy of a credit against a third person, or remission of a debt, was provided in will and subsequently, testator brings action against debtor (Art. 936)
• Substantial transformation of specific thing bequeathed, or sale or disposition of property bequeathed or devised before the death of the testator (Art. 957)
• An heir, devisee, or legatee who commits an act of unworthiness is incapable of succeeding, subject to Article 1033; this does not revoke the will (Arts. 1032–1033)
• For marriages declared void under Article 40 or annulled under Article 45, testamentary dispositions in favor of a spouse who acted in bad faith are revoked by operation of law (Family Code, Arts. 50 and 43, par. 4)
• If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law. (Family Code, Art. 44)

Revocation by Some Will, Codicil, or Other Writing Executed as Provided in case of Wills

• Express - When there is a revocatory clause expressly revoking the previous will or a part thereof. (Balane, supra, p. 193)
• Implied - When the provisions thereof are partially or entirely inconsistent with those of the previous wills. (Art. 831)

NOTE: Subsequent wills which impliedly revoke the previous ones, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the later wills. (Art. 831)

Requisites for a Revocation by Subsequent Instrument

• The subsequent instrument must comply with the formal requirements of a will. (Vda. de Molo v. Molo, G.R. No. L-2538)
• The testator must possess testamentary capacity. (Balane, supra, p. 185)
• The subsequent instrument must expressly revoke the prior will or contain provisions incompatible with it; in the latter case, the prior will is revoked only insofar as its provisions are inconsistent. (Art. 831) The subsequent will must be probated in order to take effect. (Vda. de Molo v. Molo, G.R. No. L-2538)

Requisites for a Valid Revocation by Physical Destruction (Art. 830 (3); Balane, supra, p. 186- 187)

• Testamentary capacity at the time of performing the act of destruction;
• Intent to revoke (animus revocandi);
• Actual physical act of destruction, even partial as long as it is not due to desistance (corpus);
• Completion of the subjective phase; and
• Performed by the testator himself or by some other person in his presence and express direction (Art. 830(3))

NOTE: Neither physical destruction without animus revocandi nor intent to revoke without an act of destruction (even partial, as long as not due to desistance) will revoke a will. (Art. 830 (3); Balane, supra, p. 187)

If the will was burned, torn, canceled, 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. (Art. 830)

Doctrine of Presumed Revocation

Where the will cannot be found following the death of the testator and it is shown that it was in the testator's possession when last seen, the presumption is that he must have destroyed it with animus revocandi. (Gago v. Mamuyac, G.R. No. L26317)

Revocation by Subsequent Will Effective even if New Will Becomes Inoperative

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 designated therein, or by their renunciation. (Art. 832)

General Rule: Under Article 832, revocation remains effective even if the subsequent will becomes inoperative because the designated heirs, devisees, or legatees lack capacity or renounce, subject to the exception below.

Exception: Doctrine of Dependent Relative Revocation

When the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted in the subsequent will. (Vda. de Molo v. Molo, G.R. No. L-2538)

In the doctrine of dependent relative revocation, the first will may be admitted to probate and given effect, despite it being torn provided that the testator tore it with the mistaken belief that the second will was perfectly valid. This is because he would have not destroyed the first will had he known that the second will is not valid. The revocation is therefore dependent on the validity of the second will. (Vda. de Molo v. Molo, G.R. No. L2538)

Requisites for revocation for a false cause:

• The cause must be concrete, factual, and not purely subjective
• It must be false.
• The testator must not know of its falsity
• It must appear from the will that the testator is revoking because of the cause, which is false. (Balane, supra, p. 204)

NOTE: Even if the revocation is for a false cause but the will is holographic and the revocation is by physical destruction, the revoked will can no longer be probated.

The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (Art. 834)

Republication and Revival of Wills – Civil Code, arts. 835-837

SUBSECTION 7. Republication and Revival of Wills

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. (n)

Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n)

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. (739a)

Allowance and Disallowance of Wills – Civil Code, arts. 838-839

SUBSECTION 8. 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 testator's death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

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 of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n)

Institution and Substitution of Heirs – Civil Code, arts 840-870

SECTION 2

Institution of Heir

Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n)

Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)

Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a)

Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known.

Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted.

If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

Article 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)

Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)

Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

Article 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771)

Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate.

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)

Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)

Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a)

Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

SECTION 3

Substitution of Heirs

Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n)

Article 858. Substitution of heirs may be:

(1) Simple or common;

(2) Brief or compendious;

(3) Reciprocal; or

(4) Fideicommissary. (n)

Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)

Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)

Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (779a)

Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780)

Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a)

Article 864. A fideicommissary substitution can never burden the legitime. (782a)

Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783)

Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)

Article 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;

(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;

(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;

(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a)

Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786)

Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall apply. (787a)

Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)

Definition of Preterition

Preterition is the total omission of a compulsory heir in the direct line from the inheritance. It consists in the silence of the testator with regard to a compulsory heir in the direct line, omitting him in his will, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. (Heirs of Ureta v. Ureta, G.R. No. 165748)

Basically nothing has been given in the will

NOTE: Preterition is a concept of testamentary succession and requires a will. (Heirs of Ureta v. Ureta, G.R. No. 165748)

Casual or Mixed (Art. 877)

It is sufficient if it happens or be fulfilled at any other time before or after the testator’s death, unless testator provides otherwise.

If already fulfilled at the time of execution of the will

• If testator is unaware of fact of fulfillment, it is deemed fulfilled.
• If testator is aware of the fact of fulfillment
• If it can no longer be fulfilled again –It is deemed fulfilled
• If it can be fulfilled again – It must be fulfilled again. (Art. 877)

Legacy of Credit or Remission (Art. 935-937)

• Applies only to the amount still unpaid at the time of testator’s death. (Art. 935);
• Revoked if testator subsequently sues the debtor for collection. (Art. 936);
• A generic legacy of release or remission of debts comprises only debts existing when the will was executed, unless the testator provides otherwise. (Art. 937)