Succession Reviewer

Allan Verman Ong Civil Law Review 2: The Return of the Dean 1 of 59
S.Y. 2003 - 2004
WILLS AND SUCCESSION
Elements of Succession
Dont go where I cant follow! Sam to Frodo
Q. What are the elements of succession?

A. They are:
1. Mode of acquiring ownership
2. Transfers rights, properties and obligations
3. Transferred by will or operation of law
4. Death of the testator
1. Mode of acquiring ownership
Succession - a mode of acquiring ownership, similar to tradition
Q. Sale is a mode of transferring title, but it is delivery or tradition which transfers ownership. Are wills similarly
a mode of transferring title, with succession as the means of transferring ownership?
A. No. A will is not equivalent to title or sale. It does not produce the effects of a deed of sale. It is just
one of the modes by which succession can take effect.
2. Transfers rights, properties and obligations
Q. What rights are transferred via succession?

A. Transmissible rights. An enumeration of transmissible rights is impossible, but it excludes the
following:
a. those which arise from public law (e.g. suffrage, public employment
b. rights arising from purely personal relations
c. rights whose duration is limited by law to the lifetime of the owner
d. those which require intervention of the owner for their exercise
Q. What is the rule on the transfer of obligations?

A. It should not exceed the value of the estate. The obligation of the heirs cant exceed what he gets.
Q. Does the obligation to pay a sum of money really transfer to the heirs?
A. No. It is not transmitted to the heirs because this is the obligation of the estate.
Q. Examples of obligations which may transfer to the heirs please.

A. 1. obligation of guaranty (Hemady v. Luzon Surety)
2. if deceased is a lessee for a definite period, paying a periodical rental, heirs will inherit
obligation to pay rent as it falls due together with the rights arising with the lease contract (Pamplona v.
Moreto)
3. Transferred by will or operation of law
Q. Is the will purely up to the wishes of the testator?

A. No. His capacity to dispose of his property is limited by the system of legitime and forced heirs.
Q. How is property transferred by operation of law?

A. Under the system of legitime. It is transferred according to the presumed will of the testator.
S.Y. 2003 - 2004
4. Death of the testator
Death completes the transfer of title; succession is always mortis causa
Q. When does a person die?

A. General rule: When he dies.
Exception: The instances where he is presumed dead occasioned by prolonged legal absence.
Ordinary rule: - after absence of ten years

- if he disappears after age of 75 years, 5 years is sufficient
Extraordinary - the following are presumed dead for purposes of division of estate:
1. person on board a vessel or aeroplane lost in a voyage, who has not been
heard of for four years since the loss of the vessel or plane
2. person in the armed forces who has taken part in war and has been missing
for four years
3. a person who has been in danger of death under other circumstances and his
existence has not been known for four years
Q. When is the person presumed dead?

A. In ordinary circumstances, after the ten or five year period elapses. Under extraordinary
circumstances, from the date that he was last heard of.
CRC: Other writers mention additional requisites such as the existence of heirs, and the capacity of the
heirs. But these are not really important, because if there are no heirs and the heirs are incapacitated, the
State can always succeed to the property.
Q. Does the testator have to identity the portions to be given to the heirs?
A. No. This is done in partition, which is the process of identifying the portion to be given to heirs. This
is done after the making of the will, after the death of the testator.
Types of Succession
My friends, you bow to no one. Aragorn kneeling before the Hobbits.
(1) Testamentary - that which results from the designation of an heir, made in a will executed in the
form prescribed by law.
(2) Legal or intestate; or
(3) Mixed - effected partly by will and partly by operation of law.
Q. What property is included in the inheritance of a person?

A. It includes not only the property and the transmissible rights and obligations existing at the time of his
death, but also those which have accrued thereto since the opening of the succession.
Q. Who are the parties in succession?

A. They are:
1. decedent - the general term applied to the person whose property is transmitted through
succession, whether or not he left a will
2. testator - if the decedent left a will
S.Y. 2003 - 2004
3. heir is a person called to the succession either by the provision of a will or by operation of law
4. devisees - persons to whom gifts of real property are given by virtue of a will
5. legatees - persons to whom gifts of personal property are given by virtue of a will
Elements of a will
My PRECIOUSSSSS!!! Gollum
Q. What are the elements of a will?

A. They are:
1. An Act
2. The will should be made by a person
3. Formalities of the will
4. Control over disposition
5. Disposition of Property
6. To take effect after the death of the person.
1. An Act
pertains to the instrument
- the act of drafting the will is a mechanical act so it may be delegated to another
person
- the act is purely personal
Q. By reason of the will being a purely personal act, what are the things that may not be delegated to another
person?
A. The following cannot be left in whole or in part of the discretion of a third person:
1. the duration of the designation of the heirs
2. the efficacy of the designation of heirs
3. 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.
NOTE: The will may also take effect immediately upon the death of the testator. The testator need not
even make provisions on the duration and efficacy of the designation of the heirs.
Q. What does it mean when the determination of the portions cannot be left to the discretion of a third person?
A. If the heir is designated by name, his portion has to be assigned. But if a class is designated, there is no
need to designate the exact portions to be allocated to each person belonging to that class.
Example: - I designate X as heir, and I give him P5,000.
- I give my collection of law books to 4C (no need to specify which book goes to whom).
Q. What are the things that may be delegated in the making of a will?
A. The testator may entrust to a third person:
1. the distribution of specific property or sums of money that he may leave in general to specified
classes or causes, and
2. the designation of the persons, institutions or establishments to which such property or sums are
to be given or applied.
Q. What is another implication which arises from the fact that the making of a will is purely personal?
A. 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.
Q. Another implication?
S.Y. 2003 - 2004
A. Joint wills are prohibited. Joint wills are instruments where two or more persons dispose of their
properties to take effect after their death. This is prohibited because of the possibility of one compelling
the other to dispose of the property in a particular manner. But reciprocal wills (where the will of two
persons contain mutual provisions) are allowed.
Q. Examples.
A. 1. Joint will I, Father, and I, Mother, give all our properties to our son, X.
2. Reciprocal will 1st will: I, Father, give all my properties to Mother if I die before her.
2nd will: I, Mother, give all my properties to Father if I die before him.
2. The will should be made by a person
Q. What persons may make wills?

A. Only natural persons. Artificial persons may not make wills because their existence can be perpetual
(they do not die) and the disposition of their properties when they are dissolved is governed by the law
which creates them (e.g. Corporation Code for private corporations, Civil Code for partnerships).
3. Formalities of the will
Q. What rules govern the formalities?

A. The requirements of form depend on whether the will is attested or holographic. Art. 805-808 govern
attested wills, Art. 810-814 govern holographic wills.
4. Control over disposition
Q. Is control absolute?
A. No. It is subject to the system of forced heirs and legitimes.
5. Disposition of Property
Q. Is it necessary for the validity of a will for it to contain dispositions of property?

A. The SC has decided several cases which say that a will which contains a mere disinheritance of an heir
is a valid will. In a sense this contains a disposition of property since disinheritance is an indirect
disposition. Therefore, it is not required for the will to directly dispose of property.
6. To take effect after the death of the person.
Q. Implication?
A. It may be revoked and changed at any time before the death of the person.
Rules on Interpretation of Wills
That still counts as just one!!! Gimli to Legolas, after Legolas kills Oliphant
Q. What is the general rule on interpretation of wills?

A. If the intention is clear, implement the will. There is no room for interpretation.
Q. What are the types of ambiguities?

A. They are:
1. Intrinsic (latent) not obvious on the face of the will
S.Y. 2003 - 2004
e. g. All my books to my cousin Grace. The testator has more than one cousin named
Grace.
2. Extrinsic (patent) obvious from the face of the will itself
e. g. All my books to some of my cousins.
Q. What is the rule on intrinsic ambiguities?

A. You can use extrinsic evidence to resolve the ambiguity, except oral declaration of the testator. E.g.,
All my dresses to Grace. The testator has more than one cousin named Grace. Extrinsic evidence,
includes evidence that one of the cousins Grace is male, or that the testator does not know he had two
cousins named Grace.
Q. What is the rule on extrinsic ambiguities?

A. 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 oral declarations. You can use only intrinsic
evidence, that is, that found from within the will. E. g. All my law books to some of my cousins, and
the will goes on to say, only to those cousins residing in San Juan.
Q. Why exclude the oral declarations of the testator as to his intention?

A. Parole evidence rule because the testator reduced the will into writing, it is conclusively presumed
that he intended for it to be a complete repository of his intent.
Q. What are some other rules on interpretation of wills?

A. They are:
1. 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.
2. 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)
3. 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.
Q. What properties are covered by the will?

A. Only those properties of the testator at the time of the making of the will. (Art. 793)
Q. How do you distribute the property acquired after the making of the will?
A. Based on the rules of intestacy, unless there is a subsequent will which takes care of the disposition of
such property.
Q. Art. 781 provides: The inheritance of a person includes not only the property and transmissible rights and
obligations existing at the time of his death, but also those which have accrued thereto since the opening of the
succession. How do you reconcile this with Art. 793 which says, 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?
A. No. Art. 781 is limited to those property accruing to those already disposed of. This pertains to fruits
and accessions of the property disposed of.
So: Art. 781. If X gives land to A and mangoes grow on the land, there is no need for a
subsequent will to grant the mangoes to A.
Art. 793. But if X gives 1/4 of his properties to A, then after the execution of the will, he buys
more property, those properties which are acquired subsequent to the making of the will do not pass to
A. It requires a subsequent will to give A 1/4 of the subsequently acquired property.
S.Y. 2003 - 2004
Q. So at what point in time do you determine what properties are included in the will?
A. As a general rule, at the time of the making of the will.
Q. What are the exceptions?
A. They are:
1. When contrary intent appears on the will. (Art. 793)
2. When property is not owned by the testator at the time of the making of the will, but is owned at
the time of death. (Art. 930)
3. Legacy of credit or remission of debt. (Art. 935)
Q. What is covered by the devise or legacy of a testator?

A. It shall cover all the interest which the testator could device or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a less interest. (n)
Determining the Validity of the Will
All my friends have gone to battle. I would be ashamed to be left behind! Merry to King Theoden
Q. What do you look at to determine the validity of the will?

A. We look at:
1. Formalities (extrinsic validity)
2. Testamentary capacity of the testator
3. Legality of the provisions of the will (intrinsic validity)
Q. What is the reckoning point in time for determining the said requisites for the validity of the will, and what is the
governing law for the requisites?
A. Study the following chart:
Time of reckoning Governing law

Formalities Making of the will Filipinos CHOICES
1. National Law
2. Law of his
residence
3. Law of the
place where
the will was
executed Lex
Loci
Celebritionis
Alien IF ALIEN IS IF ALIEN IS IN RP
ABROAD 1. National law
Assumption: Will 2. Philippine
is presented for Law Lex Loci
probate in RP. Celebritionis
1. National Law
2. Law of his
Domicile
3. Law of the
place where
the will was
executed Lex
Loci
Celebritionis
S.Y. 2003 - 2004
4. Philippine
Law Law of
the forum
Testamentary Making of the will National Law for
Capacity both Filipinos and
aliens
Intrinsic validity Time of death National Law for
both Filipinos and
aliens
Llorente v. CA
345 SCRA 592 (2000)
Lorenzo Llorente married Paula, departed for the US, was naturalized as
a US citizen. He came back to RP and found Paula with the child of
another man. Lorenzo divorced her and married Alicia, had 3 children.
He executed his will in favor of them and had it admitted to probate
before he died. Paula later filed for letters of administration, claiming
that she was still Lorenzos surviving spouse and that the properties
disposed of in the will encroached on her legitime. The RTC and CA
ruled, using the renvoi doctrine, saying that American law follows the
domiciliary theory, and hence RP law applied because Lorenzo was a
domicile of RP.
ISSUE: Whether or not foreign law governs the incidents of Lorenzos

succession.
HELD: Lorenzo became an American citizen long before his divorce

from Paula, his marriage to Alicia, the execution of his will and his
death. Therefore, the issues arising from these incidents are governed by
foreign law. But foreign law has to be alleged and proved.
There is no such thing as one American Law. Each State of the US has its
own law applicable to its citizens. And there is no showing that the
application of the renvoi doctrine is called for or required by New York
law (the state where Lorenzo was naturalized).
The decree of divorce between Lorenzo and Paula is valid. Thus,

whether the will is intrinsically valid and who shall inherit from Lorenzo
are issues best proved by foreign law which must be pleaded and
proved.
Q. What does this case talk about?

A. The rules as to intrinsic validity of foreign wills.
Q. When we apply the national law of a state, does it mean we apply the internal law immediately?
A. No. The national law of a state may have a conflict of law provision that leads to the application of the
internal law of a foreign state. So only when that conflict of law provision provides for the application of
internal law do we apply the internal law of the state.
Perez v. Tolete
232 SCRA 722 (1994)
S.Y. 2003 - 2004
Jose Cunanan and Evelyn Cunanan are US citizens and they executed
wills with reciprocal provisions, both of which stated that if the other
spouse would survive him, then all the property would be bequeathed to
the other, and in the event that the spouse would survive the other, then
the properties should instead transfer to his or her descendants. Both
died. The wills were admitted to probate in New York. Salud Perez, the
mother of Evelyn, sought to have the will reprobated in RP. Judge
denied probate, since the will did not meet the formal requirements of
RP law, and there was failure to prove New York law, so there was a
presumption that the law is the same as RP law. Salud filed for motion
to allow her to present further evidence on foreign law, denied.
HELD:The wills of the Cunanan spouses will only be effective in RP is

made in compliance of the place where he resides, or in his country, or in
RP law. Thus, proof that both wills conform with the formalities
prescribed by New York law or RP law is imperative. The evidence
necessary for reprobate of wills which have been admitted to probate
outside RP are as follows:
i. due execution of the will in accordance with foreign law

ii. testator has his domicile in the foreign law and not in RP
iii. will has been admitted to probate in such country
iv. fact that the foreign tribunal is a probate court
v. laws of a foreign country on procedure and allowance of wills
Salud submitted evidence except for the first and fifth. Therefore, she
should be allowed to present additional evidence.
Q. What does this case talk about?

A. The extrinsic validity of foreign wills.
Perez v. Tolete
232 SCRA 722 (1994)
The judge also denied the motion to present evidence on the ground that
to allow the probate of two wills in a single proceeding would be a
departure from the typical and established mode of probate where one
petition takes care of one will. He also claims that the Rules on
allowance of wills is couched in singular terms, so this should mean that
there should be separate probate proceedings.
HELD: Too literal and simplistic an approach. What the law expressly
prohibits is the making of joint wills. Here, they executed separate wills.
Since the two wills contain essentially the same provisions and pertain to
property which are conjugal in nature, practical considerations dictate
their joint probate. The Court will always strive to settle the entire
controversy in a single proceeding
Q. Why would a will admitted to probate abroad be reprobated in RP?

A. Because the testator has properties in RP.
Q. Joint wills are not allowed. Is joint probate allowed?

A. Yes.
S.Y. 2003 - 2004
Testamentary Capacity and Intent
I am Isildur's heir! Fight for me, and I will hold your oaths fulfilled! Aragorn to The Dead
Q. Who may make a will?

A. Persons who are not expressly prohibited by law may make a will. Persons of either sex under
eighteen years of age cannot make a will.
Q. Does the testator have to be sane to execute a will?

A. As far as making a will is concerned, soundness of mind and sanity are not the same. One only has to
be of sound mind to execute a will.
Q. What does testamentary capacity require?

A. It requires the testator to know:
1. The nature of the estate extent and character of the property, never mind the minor details
2. Object of his bounty those who have a natural expectation to receive things from him
3. Character of the testamentary act
Q. Does disease affect testamentary capacity?

A. No. 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.
Q. Does drunkenness affect testamentary capacity?

A. If the testator is dead drunk when he makes the will, then it is invalid.
Q. Does commission of a crime affect testamentary capacity?

A. No. Even in crimes punishable by civil interdiction (those punishable by reclusion perpetua to death),
the convicted criminal loses only the power to dispose of property inter vivos. He retains the power to
execute a will since this involves a mortis causa transfer of property.
Q. May a married woman make a will?

A. Yes. A married woman may make a will without the consent of her husband, and without the
authority of the court. A married woman may also dispose by will of all her separate property as well as
her share of the conjugal partnership or absolute community property.
CRC: Does this mean a married man may not make a will without the consent of his wife, and that he
may not dispose by will of his separate property or his share in the conjugal assets? He may. This is an
antiquated provision. It should be reworded to say married individuals may make a will and dispose
of their separate properties.
Q. What is the presumption of the law as to sanity?

A. 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.
Q. Are there any exception?

A. There are:
S.Y. 2003 - 2004
1. 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.
Note: This does not mean a court or public declaration of insanity. It pertains to tsismis.
2. When the testator executed the will after being placed under guardianship or ordered committed
for insanity, and before the order has been lifted.
Q. So if the court has previously declared the testator to be insane, does this mean that he no longer has
testamentary capacity to execute a will?
A. No. It simply means that the burden of proving testamentary capacity shifts to the party who wants to
prove that the person is sane.
Sanson v. CA
158 SCRA 247 (1988)
Herminia Montinola died when she was 70. Atty. Hernandez filed for
the probate of her will. Sisters of Herminia claims that Herminia had no
testamentary capacity when she executed the will because they were
excluded from the will without reason, despite their being the only
surviving relatives. Further more, she was insane because she failed to
dispose all of her property.
HELD: It is within the right of the testatrix not to include her only sister
who is not a compulsory heir, in her will. Undue influence is not present
just because blood relatives, other than compulsory heirs have been
omitted, for it is the testators right to disregard non-compulsory heirs.
The fact that some heirs are more favored than others is proof of neither
fraud or undue influence. Diversity of apportionment is the usual
reason for making a will. Otherwise, the decedent might as well die
intestate.
The fact that the testatrix disposed of only some of her real properties
does not invalidate the will, nor is it an indication that the testatrix was
of unsound mind. The portion of the estate undisposed of shall pass on
to the heirs of the deceased in intestate succession.
Q. What is the effect of supervening incapacity?

A. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated
by the supervening of capacity.
Formal Requirements Common to Notarial and Holographic Wills
Ill take care of you! Merry to Pippin in a homoerotic moment.
Q. What are the formal requirements common to notarial and holographic wills?
A. Every will must be 1) in writing, 2) executed in a language or dialect known to the testator, 3) signed.
1. In writing
Q. On what material may the will be written?

A. On anything that is permanent, e.g. paper, wood, metal, leather. It requires a certain medium. But it
may not be written on sand or water.
S.Y. 2003 - 2004
Q. What is the test?

A. It must be capable of being preserved with permanence.
Q. Can it be a video recording of the testator reciting his disposition, and recorded on DVD?
A. No. The law currently does not allow this. It is common for signing ceremonies to be recorded, where
the testator, the witnesses and the notary public sign the will and this is recorded on video. But this is not
required.
CRC: The applicability of the E-Commerce Law on the provisions of the execution of a will is still subject
to debate. It is definitely not applicable to holographic wills because such wills require that the entire act
be in the hand of the testator. So it may apply to notarial wills. There are two schools of thought to this.
The liberalists say that it is allowed, especially since an electronic document may be digitally signed and
electronically notarized. But purists disagree saying there is no guaranty that electronic data is not
tamperable.
2. In a language or dialect known to the testator
Q. Is there a difference between language and dialect?

A. Not that it matters, since the Civil Code allows both, but CRC says Filipino is a language, Tagalog is a
dialect.
Q. In what language may it be written?

A. In any language as long as it is known to the testator.
Q. Is there any presumption as to compliance with this requirement?

A. Yes. Abangan v. Abangan It may sometimes be presumed that the testator knew the language in
which the will was written. But in order for the presumption to apply, the following must be proven:
1. The will must be in a language or dialect generally spoken in the place of execution
2. The testator must be a native or resident of said locality
Q. How does the language used in the will affect animus testandi?
A. If it is in a language customarily known to the testator, animus testandi is presumed. But if not,
animus testandi has to be proven, and content also has to be proven.
Q. Do all parts of the will have written in a language known to the testator? How about the witnesses and the
notary public?
Parts of the Will Testator Witnesses Notary Public

1. Will proper YES no exception NO the witness does NO
not have to understand
the will
2. Attestation Clause NO no need to NO but it has to be NO
interpret interpreted to them
3. Notarial Portion/ NO NO NO in all actuality, the
Acknowledgment notary will not sign it if
he does not understand.
But it is not a statutory
requirement.
CRC: The requirement that the will be interpreted does not apply to the testator. It applies only to the
witnesses.
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Q. If the testator is illiterate, is there any special requirement in making the will/
A. None. He can still make a will. Note that the presumption is in favor of literacy. CRCs tip: if you are
illiterate, dont make a will because you might be duped into putting in provisions that you dont
understand. Then again, if you are illiterate, you wont be able to read this.
Q. Does the will have to state that it is written in a language known to the testator?
A. No. It does not have to appear in the will or the attestation.
Q. Is it required that proof be presented that the language of the will is known to the testator?
A. No need because this is presumed.
Q. Does this apply in case of holographic wills?

A. Yes.
3. Subscribed at the end thereof
Q. What does it mean to subscribe?

A. It pertains to the mechanical act of writing ones signature.
Q. What does it mean to subscribe at the end of the will?

A. There are two possible ends. One is the physical end of the will, which is at the end of the very last
page, after the attestation and the notarial acknowledgment. The other is the logical end, which is at the
end of all the dispositions. The testator is required to sign at the logical end, both as to notarial and
holographic wills.
Q. What signature is needed?

A. Only the customary signature. No need to sign the full name. If you do not sign with your customary
signature, evidence is needed to show that it was intended by you for what you wrote to be your
signature.
Q. Are you allowed to sign with a thumbmark?

A. Yes. This is common when illiterate people write their signatures. Note that it may also be an
indication of force or violence.
Q. Do you have to be illiterate to sign with a thumbark?

A. No.
Q. Do you have to sign by yourself?

A. In notarial wills, another person may sign for you. In holographic wills, the testator should sign
himself.
Q. Is a special power of attorney needed when another person signs for you?
A. No. There is nothing wrong with getting an SPA. But all that is required is the presence of the testator
and the witnesses, and that he sign in the express direction of the testator.
Garcia v. Lacuesta: The fact that another person signs for the testator should be stated in the attestation
clause; otherwise, it is fatal to the validity of the will.
Q. How does the third person sign?

A. He signs the name of the testator.
CRC: Persons who sign in behalf of the testator cant be one of the witnesses, because the third person
who signs for the testator is considered the testator.
S.Y. 2003 - 2004
Requirements for Notarial Wills
Trivia: Orlando Bloom auditioned for the part of Faramir.
Note: Happily, CRC does not require verbatim memorization. But here it is anyway.
ART. 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.
Q. What are the requirements that apply only to notarial wills?

A. They are:
1. attested and subscribed by three or more credible witnesses
2. signed by the testator and witnesses on every page
3. correlatively numbered
4. attestation clause
5. acknowledgment by the notary public
1. attested and subscribed by three or more credible witnesses
Q. Is there a difference between attesting and subscribing?

A. Yes. Attestation is an act of the senses; to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication. Subscription is the act of the hand;
to subscribe a paper published as a will is only to write on the same paper the name for the sole purpose
of identification. (Caneda v. CA)
Q. Who are excluded from becoming a witness?

A. The testator, notary public, and the person signing in behalf of the testator.
Q. When is the reckoning point for the credibility of the witness?

A. At the time of attestation, for the validity of the will.
S.Y. 2003 - 2004
Q. Does the witness also have to sign with his customary signature?
A. Yes. I not, just prove that he actually signed it, in accordance with the formalities. Note that this is
different with the rule for the testator. If the testator does not sign with his customary signature, you
have to prove animus testandi, in addition to the requirement of proving that he actually signed it.
Q. Can the witness sign with a thumbmark?

A. Yes. But he should explain why he signed with the thumbmark. There is no presumption that he is
illiterate. But if the reason why he signed that way is because he is illiterate, the will becomes invalid,
because the witness is incompetent.
Q. In whose presence is the signing done?

A. In the presence of the testator and of one another. Physical presence is required.
Q. If the mind of the witness is wandering, what is the effect on the will?
A. It is not allowed. Therefore, the will is invalid. However, it is very difficult to prove that the mind of
the witness is wandering.
Q. What is required on the witness?

A. He is required to know what is going on, and to see what is going on (knowledge + sight).
Q. Is actual seeing by the testator or witness of the act of signing needed?

A. No. There are certain tests to meet to ascertain if the participation of the witness is sufficient.
Q. What are the tests?

A. They are two:
1. Position test
2. Test of Available Senses
Q. What is the position test?

A. Whether they might have seen each other sign had they chosen to do so, considering the position of
the parties with relation to each other at the moment of signing, provided that is no physical obstruction
to prevent him from doing so, and you can see without difficult, or without having to change their
relative positions or existing conditions. ( Nera v. Rimando)
Q. To whom does this test apply?

A. To both the testator and the witness?
Q. What is the test of available senses?

A. This is for people who have an impediment, such as sign. So if the testator is blind, he should use his
other senses to compensate for the physical deficiency, such as hearing or touch.
Q. To whom does this test apply?

A. To the testator only. It does not apply to witnesses because there are special qualifications for him.
Q. Does the law require an order for signing? Is it required that the testator sign first before the witnesses?
A. No order is prescribed as long as the signing is done in one transaction, and there is no break or
intermediary period. If there is a break, it is not valid.
Q. What does one transaction mean?

A. It refers to the signing by the testator and the witnesses. It does not cover the acknowledgment before
the notary public.
S.Y. 2003 - 2004
Q. What is the rule for deaf or deaf-mute testators?

A. 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.
Q. What is the rule for blind testators?

A. 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.
2. signed by the testator and witnesses on every page
Q. What is the purpose of this requirement?

A. So there can be no substitution.
Q. Is there any page where the testators signature is not needed?

A. If the page contains only the attestation clause or the acknowledgment, there is no need to sign on the
margin. But the testator has to sign at the end; signature at the left margin is not sufficient. Failure to
sign is fatal. The last page need not be signed because the testator has already signed at the end, so there
is no need to sign at the left margin.
Q. If the will is signed on the right margin, is it invalidated?

A. No. Signing at the left margin is directory.
Q. Witness signs at the left margin but not at the bottom. Fatal?
A. It is not required to be signed at the end, as long as their signature is on the page where the attestation
clause is located.
3. correlatively numbered
Q. What is the purpose of this requirement?

A. Not so much for substitution, but more for the sense of order or chronology of the will.
Q. What is the ideal manner of number?

A. In words, one, two, three. If the will is not numbered in this manner, it is still permissible, as
long as you can show the correlation.
Q. Upper portion, mandatory?

A. No.
Q. When is there no need for pagination?

A. When the will has only two pages, there is no need for pagination, since correlation is evident; 3 or
more pages, requires pagination.
4. attestation clause
Q. What is the importance of the attestation clause?

A. It states what happened in the will and the compliance with the requirements of execution.
Q. What does the attestation clause state?

A. It should state:
1. The number of pages
2. That the will is signed by the testator requires presence of the witnesses
3. That it was signed by the witnesses requires the presence of the testator and the witnesses
S.Y. 2003 - 2004
Q. What is the rule of substantial compliance as to the attestation clause?

A. 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.
Q. If there is failure to state the number of pages in the attestation clause, is it fatal to the will?
A. Not if it is contained elsewhere in the will. For example, if it is statement in the acknowledgment. The
number of pages cannot be proved with evidence aliunde. Only evidence found within the will is
allowed. (Taboada case)
Q. Does this also apply to the required statements that the will is signed by the testator, or that the will is signed by
the witnesses?
A. Yes.
Caneda v. CA
222 SCRA 781 (1993)
Mateo Cabellero filed a petition for a probate of his own will, but he died
before it was admitted to probate. The heirs named in the will were
appointed administrators, but his nephews and nieces opposed the
probate, claiming that the will was invalid, since the attestation clause
was defective since it did not state that the witnesses signed the will and
each and every page thereof, in the presence of one another. The RTC
ruled that the attestation clause substantially complies with Art. 805 of
the Civil Code.
HELD: A careful reading of the attestation clause reveals that while it

does not expressly state the circumstances that the witnesses subscribed
their signatures in the presence of the testator and of one another. The
phrase and he signed the same obviously refers to the testator and not
the instrumental witnesses. The defect cannot be characterized as merely
involving the form of the will or the language which would warrant the
application of the substantial compliance rule. While the attestation
clause is signed, it cannot be conclusively inferred that the witnesses
affixed their respective signature in the presence of the required persons.
The defects cannot be cured by the text or the will or a consideration of
the matters apparent which would provide the data not expressed. The
defects must be remedied by intrinsic evidence supplied by the will
itself, without resorting to evidence aliunde, whether oral or written.
CRC: The will should pass actually. But the SC restricted the pronoun he to apply only to the testator,
but not to the witnesses.
Q. Do you need a special place for the attestation clause?

A. No. The statements can be embedded in the parts of the will.
5. acknowledgment by the notary public
Q. What is the purpose of the acknowledgment?

A. Acknowledges the signature of everybody; this dispenses with the proof of authenticating the
signatures. But he does not have to ascertain the testamentary capacity of the testator.
S.Y. 2003 - 2004
Q. When must he notarize?

A. The law does not impose any requirement when he should authenticate the signatures.
Q. What are the other functions of the notary?

A. If the testator is blind, the notary must red the will aloud to the testator, and ask if that is the will that
he signed.
Q. Does everyone have to have the same notary?

A. Not really. Its not a requirement. Each party can go to a separate notary.
Q. If the will is executed in Makati, do you have to go to a notary belonging to Makati?

A. The Civil Code does not require this, but the Notarial Law says that you have to notarize the
document in the place where it was signed; this might not be really considered a fatal defect.
Witnesses to a Will
Trivia: The filming of LOTR began with Stuart Townsend as Aragorn!
Q. What are the qualifications to be a witness?

A. He must be:
1. of sound mind
2. at least eighteen years of age or more,
3. not blind, deaf or dumb,
4. able to read and write,
5. domiciled in the Philippines;
6. has not been convicted of falsification of a document, perjury or false testimony.
Q. Is there a distinction between the soundness of mind and that of the witness?
A. Yes. Whereas the testator has to know the object of his bounty, the character of the testamentary act
and the nature of the estate, the witness has to know:
1. he must know that what is being executed is a will and that the parties are there to sign
2. he must know the testamentary capacity of the testator
Q. What are the disqualifications for a testator?

A. None. Almost anyone can make a will, subject to the requirement of testamentary capacity.
Q. What are the disqualifications for a witness?

A. Several. The following may not be witnesses:
1. Illiterate cannot read AND write
2. Blind
3. Deaf (OR)
4. Dumb
5. Non-domiciliary of the Philippines
Q. Why are the blind disqualified?

A. Because sight is important, so that the witness can see the signing.
Q. Why are the dumb disqualified? (Note, dumb = mute)

A. Because the witnesses may be required to testify in the probate of the will, so it is easier if they can
communicate via speech.
Q. Why are the deaf disqualified?

A. CRC: who knows?
S.Y. 2003 - 2004
Q. Is the domicile requirement applicable to Filipinos and/or aliens when their wills are executed abroad or in RP?
Executed in RP Executed abroad
Filipinos Yes 1. Law of the place
Tolentino and Paras say
Yes, Caguioa says No,
CRC says, take your pick
2. RP law - Yes
Aliens 1. Follows RP law Yes No
2. Follows own law - No
Q. Why are those convicted of perjury, false testimony, and falsification disqualified?
A. Because of their propensity to lie. Thus, those convicted of murder and rape are allowed, even when
facing civil interdiction, because the property to be disposed of is not theirs.
Q. Does relationship with the testator disqualify one from being a witness?
A. No.
Q. Is a spouse disqualified from being a witness?

A. No. The possible undue influence present in the prohibition against joint wills is not an issue in
witnessing.
Q. Is relationship of one witness with another witness a disqualification?

A. No. Note that competence is not the same with credibility.
Q. What is the rule on the subsequent incompetence of the witness?

A. 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.
Q. What is the effect if the person attesting the will is a devisee or legatee, or if the person has a spouse, or parent, or
child, who is a devisee or legatee of the testator?
A. Such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such
person, be void, unless there are three other competent witnesses to such will.
Q. Will that witness still be competent as a witness?

A. Yes. Such person so attesting shall be admitted as a witness as if such devise or legacy had not been
made or given.
Q. What is aside from the devisee/witness, there are three other competent witnesses?
A. Then the devise or legacy is valid.
Q. What if there are three competent witnesses, and one of them is a devisee?
A. The will is valid, the devise is void.
CRC: Tolentino and Caguioa say that when the witness is given a portion of the estate (is an heir) rather
than a definite object in the estate (devisee or legatee) then the portion may still validly transfer. This is
simplistic. Art. 1027, par. (4) says that any attesting witness to the execution of a will, or the spouse,
parent or child or any claiming under such witness or spouse, parent, or child, is incapable of succeeding.
The exception to this prohibition are compulsory heirs, who can get their legitime.
Balane: The disqualification will extend as well to heirs. The intent of the law is to cover all testamentary
institutions.
S.Y. 2003 - 2004
Q. What is there is a voluntary heir + 3 other attesting witnesses?

A. Art. 1027 does not make a distinction. But it does not affect the validity of the will. Note the difference
of the rules between the devisee/witness and the voluntary heir/witness.
Q. Is the creditor of the testator disqualified from being a witness?

A. 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.
Requirements of a Holographic Will
Fear. The city is rank with it. Let us ease their pain. Release the prisoners! - Gothmog
Q. What are the requirements of a holographic will?

A. 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.
Q. Does the date/will/signature have to be in any particular order?

A. The signature has to be at the bottom.
Roxas v. De Jesus
134 SCRA 245 (1985)
As a general rule, the date in a holographic will should include the

day, month, and year of its execution. However, as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure
and the authenticity of the will is established, and the only issue is
whether or not Feb/61 is valid compliance. A complete date is
required to provide against such contingencies as that of two competing
wills executed on the same day, or of a testator becoming insane on the
day in which the will was executed. There is no such contingency in this
case.
Q. So are the following dates permissible?

A.
Format Sample OK?
Month / Year Feb. 2003 Yes
Month / Day Feb. 14 No
Day / Year 14, 2003 No
Event + Year Valentines Day, 2004 Yes
Q. Is total absence of the date fatal?

A. Yes.
Q. Can the holographic will be in the form of a letter?

A. Yes. But it should state unequivocally that it is a will; it should reflect animus testandi. For example,
Dear Even, when I die, give the following properties of mine to the following persons.
Q. Can it be in the form of a poem?

A. Yes.
S.Y. 2003 - 2004
Q. Is the Mi Ultimo Adios of Jose Rizal a will?

A. No.
Q. Remember Dying Declarations as an exception to the Hearsay Rule? Can a dying declaration dispose of
property?
A. No. Not valid unless written, dated and signed by the testator in his own hand.
Q. What is required in case of any insertion, cancellation, erasure or alteration in a holographic will?
A. In such case, the testator must authenticate the same by his full signature.
Q. Do the erasures need to be authenticated when it is made contemporaneous to the making of the will? Is this the
same rule when the erasure is made after the making of the will?
A. When the erasure is made contemporaneous to the will, there is no need to authenticate it, if done at
the same time as the will was made. If erasure is done after the making of the will, the erasure has to be
authenticated.
Q. What is the rule when another person makes erasures on the will?
A. If made without the consent of the testator, the will is not invalidated, because the validity of the will
cant be left to the hands of a third person. But the correction is not valid, since the holographic will must
be entirely in the hand of the testator. If the erasure is made by a third person with the consent of the
testator, the erasure of the third party will not be allowed, but the will is still valid.
Kalaw v. Relova
132 SCRA 237 (1984)
The holographic will has only one substantial provision which was
altered by substituting the original heir with another. This alteration did
not carry the requisite of the authenticating signature.
HELD: The entire will is voided or revoked since there is nothing that
remains in the will which could remain valid. To state that the will as
first written should be given efficacy is to disregard the seeming change
of mind of the testatrix. But that change of mind cannot be given effect
because she failed to authenticate it in the manner required by law by
affixing her full signature.
Q. What is the requirement as to the subsequent dispositions in a holographic will?

A. 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. 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.
Q. Examples please.
A. Study the following
WILL
# 1 subsequent disposition signed only
# 2 subsequent disposition signed only
# 3 subsequent disposition signed AND dated validates all the preceding dispositions
WILL
# 1 subsequent disposition dated only
# 2 subsequent disposition dated only
S.Y. 2003 - 2004
# 3 subsequent disposition signed AND dated preceding dispositions are not validated, only #3 is
valid
WILL
# 1 subsequent disposition not dated or signed
# 2 subsequent disposition not dated or signed
# 3 subsequent disposition dated AND signed all preceding dispositions are void; only #3 is valid
Q. What is the requirement of the authenticating witness in the probate of a holographic will?
A. 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.
CRC: It is not the number of witnesses but the credibility of the witnesses that is important.
Rivera v. IAC
182 SCRA 322 (1990)
Venancio Rivera died. Jose Rivera claims to be the son and claims that
Venancio died intestate. Jose was declared not a son. Adelaido, the true
son, presented the will which was holographic. Jose Rivera contested the
will because Adelaido did not present three witnesses as required under
Art. 811.
HELD: Jose Rivera is not the son of the deceased. Hence, being a mere
stranger, he has no personality to contest the wills and his opposition did
not have the legal effect of requiring the three witnesses. The testimony
of Zenaida and Venancio Jr. who authenticated the wills as having been
written and signed by their father was sufficient.
Joint Wills
Fight! Fight to the last man! Fight for your lives! Gandalf, in the Siege of Minas Tirith
Q. What is the rule as to joint wills?

A. 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.
Q. Two Filipinos execute a joint will abroad, in a country where joint wills are allowed. Valid here?
A. 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.
Codicil
Not quite. There's room for a little more. Frodo to Sam, handing him the book
CRC: A codicil is sometimes called a small will. But this is a misnomer. A codicil may even be larger
than the original will. It is ALSO A WILL. So it must be executed with the formalities of a will. A codicil
may either effect a partial amendment or a total amendment.
S.Y. 2003 - 2004
1. Partial amendment the codicil is an annex or a part of the original will. The original + the
codicil is treated as one. It is the case of two wills working as one. Think of it as the amended
contract, annexed to the original contract, giving rise to a restatement of the contract.
2. Total amendment the codicil amends everything. It is a revocation of the original will even if
the revocation is not express. The codicil is not annexed because it becomes subsequent to the
original will
Q. In what form (notarial or holographic) must the codicil be? Does it depend on the original will?
A. No. Study the following chart:
Original Will Codicil Valid?

Notarial Notarial YES
Holographic Holographic YES
Notarial Holographic YES
Holographic Notarial YES
Q. Why is it that when the original will is holographic, a codicil in the notarial form is valid? Isnt it that all
insertions, corrections, erasures and alterations of a holographic will should be written and signed by the testator?
A. The original holographic will speaks of just one will. The notarial codicil is an entirely separate will.
So it should be allowed. It is not an insertion or alteration at all, but a separate will.
Q. What is the legal effect of a codicil?

A. The execution of a codicil referring to a previous will has the effect of republishing the will as modified
by the codicil.
Allans obiter: If in a will, you wrote Dec. 26, 2003: All to X then you purchase more land after the
execution, X will not get this land. But if you execute a codicil, which states, I reaffirm the will I made
on Dec. 26, 2003, then the land purchased after the execution of the first will is now included in the
disposition to X.
Incorporation by Reference
You cant mean that! You cant leave! Sam to Frodo
CRC: Here, the paper is not a will in itself. It is in the same concept as having a document incorporated
and made part of the will. So the paper comes together with the will. But it should already be in
existence at the time that the will is made.
Q. Can it be a will?
A. If so, it would already be the codicil. It will be considered a new will, so the new will is a codicil.
Q. Is there a means by which to remedy a will which is void as to form?

A. He must republish the will and reproduce the dispositions contained in a previous one. A mere codicil
will not be effective because it is a separate will in itself, and an incorporation by reference will not be
effective, since it is not a will.
Q. What are the requisites of an incorporation by reference?

A. The following:
1. the document or paper must be in existence at the time of the making of the will.
2. the will must describe and identify the paper
3. the paper must be identified as the paper referred to in the will.
4. the paper must be signed by the testator and the witnesses on each and every page, except in case
of voluminous books of account or inventories.
S.Y. 2003 - 2004
1. the document or paper must be in existence at the time of the making of the will
CRC: You can prove this using extrinsic evidence, to show compliance with the requirement.
2. the will must describe and identify the paper
Q. What does the original will need to show?

A. It must identify the incorporated paper and state the number of pages.
Q. What is the effect if the number of pages of the incorporated paper is absent?
A. Then the incorporation is invalid!
3. the paper must be identified as the paper referred to in the will
CRC: There must be clear evidence that the paper is that referred to in the will. The Rules of Court will
govern as to what constitutes clear evidence. Extrinsic evidence may be used. Note that it is not requied
for the will to be physically attached to the will.
4. the paper must be signed by the testator and the witnesses on each and every page, except in case of
voluminous books of account or inventories
Q. This last requirement states that it must be signed by the testator AND witnesses. Does this mean incorporation
is valid only in notarial wills?
Will Incorporated Paper Valid?
Notarial Notarial YES
Notarial Holographic YES but the incorporated paper
must be signed by the testator
and the witnesses
Holographic Holographic YES but the incorporated paper
must be in the handwriting of the
testator and signed by him; no
need for witnesses to sign
Holographic Notarial NO because the will is no
longer entirely written and
signed by the testator
* So incorporation by reference is generally not valid for holographic wills.
Q. If books are incorporated, does it have to be signed?

A. Signing the first and the last page should be enough. It is not clearly defined by the law if all the
pages have to be signed.
Revocation of Wills and Testamentary Dispositions

Do you wish then that our places had been exchanged? Faramir to his father.
A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.
Q. Is soundness of mind also important in determining animus revocandi?

A. Yes. If the testator is not of sound mind at the time of revocation, the revocation is not effective.
Note: Revocation can either be total or partial.

S.Y. 2003 - 2004
Note: When revocation is done by an overt act (e.g. by tearing), it need not be done to the entire will, as
long as animus revocandi is present.
Q. How can revocation be done?

A. By:
1. implication of law
2. testators acts
1. implication of law
Q. What are some examples of when a will is revoked by implication of law?

A. When there is an annulment, legal separation, declaration of the nullity of a marriage, then the
designation of the guilty spouse as heir in the will is revoked by operation of law.
Q. Is the will totally revoked?

A. As a general rule, no. Only those provisions that affect the guilty spouse will be revoked. The
exception is if the only disposition in the will is that which is in favor of the guilty spouse. Then the
entire will is revoked.
Q. Do you have some other examples for when a will is revoked by implication of law?
A. Yes.
1. When the dispositions in favor of the witness is revoked (Art. 823, Art. 1027, p. 4)
2. When the testator disposes of property that he thought was his (Art. 930)
3. When the legacy is lost, transformed, destroyed by the testator (Art. 957)
2. testators act
Q. Does the revocation require a reason?

A. No. Although a requirement for this manner of revocation is that the revocation should be a conscious
act, no reason is required when the testator revokes. As long as you have your legitime, there is no need
to justify the inequality.
Q. What are the means of revoking a will by a testators act?

A. they are:
1. By a will or codicil
2. By an overt act
1. By a will or codicil
Q. What are the requisites for a valid revocation by a subsequent instrument?

A. They are:
1. subsequent instrument must comply with the formal requisites of a will
2. testator must possess testamentary capacity
3. subsequent instrument must either contain an express revocatory clause or be incompatible with
prior will
Q. What is the doctrine of dependent relative revocation?

A. The doctrine states that where the act of destruction is connected with the making of another will so as
fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of
the new disposition intended to be substituted, the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the original will remains in full force. (Molo v. Molo)
S.Y. 2003 - 2004
Q. Testator executed Will 1. Then he executed Will 2 which expressly revoked Will 1. If Will 2 is void for non-
compliance with a formal requisite, is Will 1 reinstated? Why?
A. Will 1 is reinstated. In Samson v. Naval, the Court used the doctrine of dependent relative revocation.
The Court in Molo v. Molo said, that even in the supposition that the destruction of the original will by
the testator could be presumed from the failure of the petitioner to produce it in court, such destruction
cannot have the effect of defeating Will 1 because of the fact that it is founded on the mistaken belief that
Will 2 has been validly executed and would be given due effect. The theory on which this principle is
predicated is that the testator did not intend to the intestate. And this intention is clearly manifest when
he executed two wills on two different occasions and instituted his wife as his universal heir. There can
therefore be no mistake as to his intention of dying testate.
Allan: CRC mentioned that the doctrine of dependent relative revocation is not really necessary. The test
should be if the second will can pass probate. There is a distinction between an in inoperative will, and
an invalid will. An inoperative but valid will cannot pass property, but this is immaterial, since it will
allow revocation to take place. (?)
Q. Will 1 All to X
Will 2 Revoke Will 1
Will 3 Revoke Will 2 is Will 1 revived?
A. No. Will 1 is not revived unless Will 3 expressly revives Will 1.
Q. How do you revive a will which was revoked?

A. Two ways:
1. Republication - execute a codicil to revive Will 1; this is effective only when the will is revoked,
not where the will is void as to formalities
2. Re-execution for wills which are void as to formalities
Q. Will 1 All to X
Will 2 All to Y impliedly revokes Will 1
Will 3 All to Z impliedly revokes Will 2. Effect?
A. Revives Will 1, unless Will 1 and Will 3 are inconsistent.
2. By an overt act
Here, you revoke a previously executed will. Any act coupled with animus testandi is sufficient. The
intention of the person is ascertained, but it is a judgment call. Note that the presumption is always that
the testator is testate.
Q. The Code says the overt acts are burning, tearing, cancelling, or obliterating the will. Is this exclusive?
A. No. You can wrap it around stone and throw it to the sea or you can flush it down the toilet.
Q. Does burning and tearing require destruction to the point that it cant be read?
A. No. a physical act with intent to revoke is sufficient.
CRC: The destruction or burning or tearing of the will may be done to destroy a prior will to give effect to
a subsequent will. Therefore, the doctrine of dependent relative revocation may also apply. But if the
will is just torn up, then the doctrine does not apply.
In the case of cancellation, the cancellation is done after the execution of a will. For the
cancellation of a holographic will, the authentication with the full signature of the testator is required.
Only the portion cancelled will cease to exist. However, if what is cancelled is the date or the signature,
then the holographic will becomes void. The cancellation of specific provisions is okay.
S.Y. 2003 - 2004
Q. Is cancellation allowed in notarial wills?

A. Puno and Reyes say no. To execute a notarial will, you need witnesses and a notary, so even if you
authenticate the cancellation on the notarial will with your full signature, it does not have the required
formalities of the attestation by the witnesses and the acknowledgment by the notary.
Q. Who performs the overt act of cancellation?

A. By the testator himself, or by some other person in his presence, and by his express direction. Note
that cancellation by a third party can be done to both notarial and holographic wills. To prove
cancellation, you need to show 1) the overt act, and 2) intention to revoke.
Q. What if the overt act is done by an unauthorized person?

A. 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.
Gago v. Mamuyac
49 Phil. 902 (1927)
The loss of unavailability of a will may, under certain circumstances,

give rise to the presumption that it had been revoked by physical
destruction.
Gan v. Yap
104 Phi. 509 (1958)
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.
Rodelas v. Aranza
119 SCRA 16 (1982)
If the holographic will has been lost or destroyed and no other copy is
available, the will cannot be probated because the best and only evidence
is the handwriting of the testator in said will. But a photostatic copy or
Xerox copy of the holographic will may be allowed because comparison
can be made with the standard writings of the testator.
CRC: There is no need to state the cause in a revocation. But a revocation which states the reason and the
reason is a false cause is void. Revocation based on false cause can only be proven if it is stated in a
subsequent will or codicil. Otherwise, the revocation will stand.
Q. What law must be observed in revoking wills?

Revocation done Testator domiciled in RP Testator not domiciled in RP

1. Outside RP 1. law of the place where the 1. law of the place where will
will was made was made
2. RP law 2. law of place of domicile
2. Inside RP RP law RP law
Codal provisions which were not discussed:

S.Y. 2003 - 2004
Art. 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)
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. (714)
Probate of a will
A great shadow has departed. Gandalf, in bed with Frodo.
CRC: The matters taken up in probate are very limited. They are:
1. identity of the will whether the will was made by the testator
2. formalities
3. due execution
4. testamentary capacity
Outside of this, the probate court has no jurisdiction. Note that before the will is admitted into probate, it
is not legally enforceable. It is just an expression of the testators desires.
Q. What are the exceptions to the general rule that only those 4 matters can be taken up by the probate court?
A. They are as follows:
1. ownership of property
2. on its face, the provisions are intrinsically void
1. Ownership of property
General rule: Ownership of property is not passed upon in probate. It is to be determined in the
inclusion/exclusion proceedings.
Exception: It can be passed upon. But the determination of the probate court does not settle the matter
with finality. It is just a provisional determination of ownership. Anyone can still claim ownership of the
property.
Luy Lim v. CA
323 SCRA 102 (2000)
Pastor Lim died intestate. His widow Rufina Lim petitioned to include
the assets of certain corporations as part of the estate of the deceased.
She claims that Pastor Lim, during his lifetime, organized and owned by
himself the corporations, and that the incorporators had no participation
at all and were mere dummies. The assets include parcels of land with
TCT registered in the name of the corporations and under the possession
of the same. Rufina claims that the determination is merely provisional
anyway and is not conclusive.
HELD: If a property covered by TCT is involved, the presumptive

conclusiveness of such title should be given due weight, and in the
absence of strong compelling evidence to the contrary, the holder thereof
S.Y. 2003 - 2004
should be considered as the owner of the property in controversy until

his title is nullified. The records reveal no strong compelling evidence
that the properties were owned by Lim. The real properties are also in
the possession and are registered in the name of the corporations, which
possess a personality separate and distinct from the stockholders. Mere
ownership by a single stockholder of all the stock is not sufficient reason
for disregarding the separate corporate personalities.
De Leon v. CA
386 SCRA 216 (2002)
Teresita De Leon is the administratrix of the estate of Rafael Nicolas.

Ramon Nicolas opposed the proceedings and filed a motion for collation,
claiming that Rafael had given real properties to his children by
gratuitous title and this was not included in the inventory of the estate.
The RTC ordered the collation. De Leon did not appeal in time, so the
CA ruled that the order directing the inclusion of the property to the
estate is final.
HELD: A probate court can only pass upon the questions of title
provisionally. The question of ownership and title which results in the
inclusion to the inventory of the property can only be settled in a
separate action. The CA erred in considering the failure to appeal as
having the effect of binding the parties. Actually, the order is
interlocutory and not a final order. The Order is merely for including the
subject property in the inventory of the estate.
Maloles II v. Phillips
324 SCRA 172 (2000)
Arturo de Santos filed a petition for the probate of his will. The will
stated that he had no compulsory heirs and that all his property shall be
devised to De Santos Foundation. The will was admitted to probate by
Branch 65 of the Makati RTC. After his death, Phillips filed for the
issuance of letters testamentary with Branch 61 of the Court. Maloles
filed a motion for intervention, claiming that he was a nephew so he was
an heir. He claims that Branch 65 has no jurisdiction because the probate
proceedings did not terminate upon the admission of the will to probate.
He argues that the proceedings must continue until the estate is fully
distributed so Branch 61 has jurisdiction. Branch 65 agreed.
HELD: No merit. The authority of the court in probate proceedings is

limited to ascertaining the extrinsic validity of the will, whether the
testator was of sound mind, freely executed the will, in accordance with
the formalities prescribed. Thus, after the allowance of the will, there
was nothing else for Branch 61 to do except to issue a certificate of
allowance of the will. There is no basis for the ruling of Branch 65 that
Branch 61 shall continue to exercise jurisdiction to the exclusion of all
other courts.
S.Y. 2003 - 2004
Note: Another exception is when all the heirs agree to the determination of ownership, then the probate
court can proceed. In this case, the determination is no longer provisional, but it is final.
Reyes v. Reyes
345 SCRA 541 (2000)
Ismael owned land but for failure to pay taxes, the BIR levied and sold
this land to the government. Ismael died and Oscar, his son redeemed
the property. Ismaels administrator, another son, Cesar, filed for
appointment as administrator of the estate which included the property
subject to levy. Oscar objected to the inclusion of the property he
redeemed. The probate court ruled that the property redeemed shall not
be included but without prejudice to the outcome of any action to be
brought in the proper court. The administrator Cesar claims the
exception to the rule that the parties interested are all heirs and they both
have submitted the question of title to the property, so the court has
jurisdiction.
HELD: Correct. The jurisdiction of the probate court merely relates to

matters having to do with the probate of the will, the appointment of
administrators, and the settlement of the estate. The question of
ownership is, as a rule, an extraneous matter which the probate court
cannot resolve with finality. The probate court may pass upon the title
thereto, but such determination is provisional and not conclusive, and
subject to the final decision in a separate action to resolve title. The facts
do not call for the application of the exception. The administrator Cesar
presented evidence to determine what was included in the inventory.
On the other hand, the son Oscar presented evidence to oppose the
inclusion. Thus, there is nothing on record to show that both parties
submitted the issue of ownership for its final resolution.
2. On its face, the provisions are intrinsically void
CRC: The instance when this is done is usually in preterition. Preterition totally annuls the will. But as to
other intrinsic matters, the courts will hesitate to rule upon it. The heirs that can be preterited are the
parents, since they are compulsory heirs in the direct line, and children. The spouse is a compulsory heir
but is not an heir in the direct line. This is wrong. The spouse is not an heir in the direct line. Anyway, if
the testator made provisions in the will in favor of the heir, there is no preterition.
In the Cayetano case, the testator was a US citizen. The Court made a determination as to
citizenship, and since it was determined that the testator was American, the Court held that there is no
preterition, since there is no system of legitimes in the US. But it is not correct to say that there is no
legitimate in the US. The determination should be done state by state. There are some states in the South
which observe the system of legitimes.
In Nepumuceno, the estate was being contested by the wife and the mistress. The will of the
testator admitted that the mistress was a mistress. So some, but not all of the provisions, were annulled.
So the courts can look into the intrinsic provisions of the will.
An order admitting the will into probate is a judgment. Once the order becomes final, the
matters ruled upon cant be taken up again. One exception, again, is the intrinsic validity of the will.
Dorotheo v. CA
320 SCRA 12 (1999)
S.Y. 2003 - 2004
Lourdes Dorotheo took care of Aniceta Reyes before she died. After
Reyes died, Dorotheo filed for the probate of the will of Reyes. The will
was admitted to probate, but the children of Reyes filed a motion to
declare the will intrinsically void. The will was declared void in 1986
and the estate was to be divided according to the rules of intestacy. In
1990, Dorotheo asked the court to set aside the order declaring the will
void.
HELD: Dorotheo was privy to the suit calling for the declaration of the
invalidity of the will. Although the order in 1986 declaring the will to be
void does not bind those who are not parties, the order is res judicata as
to those who were parties to the probate proceedings. Petitioner
Dorotheo cannot again raise those matters anew for relitigation,
otherwise that would be forum-shopping. The claim that the 1986 order
is merely interlocutory cannot stand because the estate was ordered to be
distributed according to the rules of intestacy. The fact that the husband
of the testator disposed of the conjugal properties in his will cannot
reverse the final and executory order. The matter of who owns the
property may still be properly ventilated in the intestate proceedings.
Note that for joint wills, the case of Vda de Perez v. Tolete is interesting. It is not a joint will. It is
a formality issue, determining the property subject matter of probate proceedings. In De la Cerna v.
Potot, spouses A & B executed a joint will. A died, will was admitted to probate. B died, the daughter
again petitioned for the probate of the will for the property of the mother. One was admitted, the other
was not admitted. But a joint will is really just one will, so the will should have been admitted to probate.
This reasoning can no longer be applied now. But the doctrine in Vda de Perez applies. Just one probate
for the two wills, because the provisions are identical.
Q. Who can have the will admitted to probate?

A. Either 1) the testator himself, or 2) by an interested person or the custodian of the will.
CRC: You file for the probate of your own will. After the will is admitted to probate, you can still change
it and make a new one. Of course, the new one should be subject to probate also.
The Rules of Court provide for a period wherein which you should submit the will to court for
probate. But this is not a prescription period. If you have it in your possession, it can always be
probated.
In the probate, you should prove:
i. Death
ii. Prove due execution and testamentary capacity
If you know the handwriting or someone knows the handwriting of the testator, there is no need to get
expert testimony. Expert testimony is usually done for forgery. If a holographic will is contested, there
may be a need to have 3 witnesses who know the handwriting of the testator to testify.
Ajero v. CA
236 SCRA 488 (1994)
Ajero instituted proceedings for allowance of decedent Anne Sands

holographic will. Sand opposed the petition claiming that neither the
wills body nor the signature was in the decedents handwriting, that it
contained alterations that were unsigned and that the will was procured
by undue influence. The RTC admitted the will to probate but the CA
reversed, saying the holographic will failed to meet the requirements of
Art. 813 & 814.
S.Y. 2003 - 2004
HELD: In holographic wills, what assures authenticity is the requirement

that they be totally written by the testator. Failure to observe strictly
other formalities will not result in the disallowance of a holographic will
that is unquestionably handwritten by the testator. A holographic will
can be admitted to probate notwithstanding non-compliance with the
provisions of Art. 814 on erasures. Unless the unauthenticated
alterations were made on the date or on the testators signature, their
presence does not invalidate the will itself. The lack of authentication
will only result in the disallowance of such changes.
Codoy v. Calugay
312 SCRA 333 (1999)
Calugay filed a petition for the probate of the holographic will of Matilde
Ramonal. Codoy filed an opposition to the petition alleging that the will
was a forgery and that it was illegible. Calugay presented six witnesses
to establish the authenticity of the will. The RTC denied probate but this
was reversed by the CA. Codoy appealed claiming
HELD: Art 811 says that as a requirement for the probate of a contested
will, at least 3 witnesses should declare that the signature is the genuine
signature. This is mandatory. The possibility of a false document being
adjudged as the will of the testator cannot be eliminated, which is why if
the holographic will is contested, the law required three witnesses to
declare that the will was in the handwriting of the deceased.
If the witness of a notarial will is gone, it is okay, because the subject of his testimony is contained in the
notarial attestation. It may be that the attestation did not happen, and the attestation can still be
disproved. But it would be difficult for the forger of a will to get 3 people to lie and sign as witnesses.
Q. What are the grounds for the disallowance of the will?

A. They are the following:
(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.
Q. Can you summarize the grounds?

A. Yes. They can be summarized to: 1) failure of formalities, 2) vice of consent, 3) testator did not sign.
Christmas Break
I am going to save you. Eowyn to King Theoden
You already did. King Theoden to Eowyn.

S.Y. 2003 - 2004
Who Inherits from the Testator?
And where will other men turn when Gondor falls? Dethenor to Gandalf.
CRC: The ISRAI guide of Paras is a good guide because it sets out who are the heirs and what happens
when the designated heir does not inherit.
Q. What is ISRAI?
A. Institution, Substitution, Representation, Accretion, Intestacy.
1. Institution
Q. What does institution cover?

A. It is limited to testate succession, and only as to the free portion.
Q. What is the compulsory heir is instituted to the legitime?

A. This is a surplusage and does not affect the validity of the compulsory heirs acquisition of the
legitime.
2. Substitution
Q. What does substitution cover?

A. This is done when the instituted heir does not inherit. It is also limited to testate succession, and only
to the free portion.
NOTE: This order is not followed in case of preterition, because you go immediately to intestacy.
3. Representation
Q. What does representation cover?

A. It covers both testate and intestate succession.
Q. When is there representation in testate succession?

A. There is representation as to the legitime of the heir, in case of predecease, incapacity, or
disinheritance.
Q. Is it possible when the compulsory heir repudiates?

A. Never. In case of repudiation, it goes directly to the next order of heirs.
Q. When is there representation in intestate succession?

A. Only in case of predecease and incapacity.
4. Accretion
Q. What does accretion cover?

A. It covers testate succession, and only as to the free portion.
5. Intestacy.
Q. How is intestacy done in case of predecease or incapacity?

A. It applies only in the failure of the heirs of the first order. It follows the following order:
S.Y. 2003 - 2004
1. representation
2. if none, the co-heirs, by their own right or by accretion
3. next order
4. the State
Q. How is intestacy done in case of repudiation?

A. It follows this order:
1. co-heirs by accretion
2. co-heirs in their own right
3. next order
4. state
Note: No representation in case of repudiation
Institution
Shadowfax! Show us the meaning of haste! Gandalf, riding to Minas Tirith.
Institution of the heirs is one of the substantive issues in testamentary succession.

It assumes that the will has been admitted to probate.
Q. What is institution of heirs?

A. 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.
Q. Is the institution of heirs in the will mandatory?

A. No. A will shall be valid even though it should not contain an institution, or such institution should
not comprise the entire estate, and even though the person instituted 1) repudiates or 2) is incapacitated.
In such cases, the remainder of the estate shall pass to the legal heirs by intestacy.
Q. What are the requirements for valid institution?

A. The requirements are:
1. The will must be admitted to probate
2. The institution should be made personally by the testator except as to valid class institution
3. Institution can be only for the free portion
4. The heir has to be identified
5. There has to be no preterition, because it will annul the institution of heirs
Q. What happens if the instituted heir cannot be identified?

A. Then you follow the order of Paras; substitution, representation, accretion, intestacy.
Q. What is the ideal way of identifying the heir?

A. By his name and surname.
Q. What if there are two or more persons with the same full name?
A. Check middle name, if it was indicated by the testator. Note that the identification can be based only
from what was written on the will, and not by evidence aliunde.
Q. What if the instituted heir was designated with his incomplete name or unique nickname?
A. It is valid if the identification can be made. Only intrinsic evidence is admissible.
Q. What is the rule when there is no name, and the heir was just described?
A. Only intrinsic evidence is admissible to determine who this heir is.
S.Y. 2003 - 2004
Q. What may be done when there is an error in the name or designation of the heir?
A. 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. Extrinsic evidence may be
used. Note that sometimes, it may be possible to identify the heir only after the death of the testator. E.g.
when the testator writes, The son of mine who gave me the most number of grandchildren. The
minimum requirement is that the instituted heir must be conceived.
Q. What is after this process, the heir cant be identified?

A. Then none of them shall be an heir.
Q. What are the basic principles in institution?

A. The basic principles are 1) equality, 2) individuality, 3) simultaneousness
Q. What is the principle of equality?

A. In the absence of designation of shares, the heirs instituted shall inherit in equal parts. It does not
matter if the heirs are siblings or children of one person, or that some are full blood and some are half-
blood.
Q. Is this the same in intestacy?

A. No. In intestacy, the ratio of full blood to half blood is 2:1.
Q. What is the principle of individuality?

A. Heirs are instituted by the testator in their individual capacity. Thus, even if the will 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. Note:
Here, C does not have to die for his children to inherit.
Q. What is simultaneousness?
A. When the testator calls to the succession a person and his children they are all deemed to have been
instituted simultaneously and not successively.
Note: In institution, the relationship or closeness of the testator with the instituted heir is not an issue.
Q. Do you have to state why you are instituting certain heirs?

A. No. There is no need to do so, assuming there is no disqualification, like for paramours. However, if
the cause is stated and it is false, then there is a danger.
Q. What is the rule when the heir is instituted by virtue of a false cause?
A. General rule : the false cause is considered as not written.
Exception : if it appears from the will that the testator would not have made such institution if he
had known the falsity of such cause, the instituted is voided.
Q. What are the requisites in annulling the institution based on false cause?
A. They are:
1. The false cause is stated in the will
2. The falsity of the cause is proven proven by the person who alleges it is false; evidence aliunde
admissible
3. It is shown that the testator would not instituted the heir had he known the cause to be false.
e.g. P1M to Mr. Vent for being the most handsome in class. even if this is not true, institution is
valid.
P1M to Mr. Vent for saving my life in the fire. if not true, institution is voided.
S.Y. 2003 - 2004
CRC: To be sure, just institute the heir, dont state the cause anymore.
Q. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, but
their aliquot parts together do not cover the whole inheritance, what will be done?
A. Each part shall be increased proportionally. Example: All to A, B, and C. A takes 30%, B 30%, C
15%.
Share in the Will Increase

A 30% 10%
B 30% 10%
C 15% 5%
------------- ------------
75% 25% increase this proportionately (ratio of 2:1)
Q. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the
whole inheritance, each part shall be reduced proportionally. Illustrate.
A. See the following
Share in the Will Decrease
A 60% 20%
B 60% 20%
C 30% 10%
------------- ------------
150% 50% decrease this proportionately (ratio of 2:1)
Preterition
No you wont, you thief! Frodo to Sam
Q. What are the elements of preterition?

A. They are:
1. Total omission
2. The heir omitted is a compulsory heir in the direct line
3. Omitted heir must survive the testator, save in representation
1. Total omission
Q. Is the total omission of the compulsory heir limited to the will of the testator?
A. No. Art. 906 says that the compulsory heir may be left legitime in any title. This includes property
given by donation. When this is done, there is no preterition, and all that the heir can do is to demand
that the legitime belonging to him be fully satisfied. Even if the name appears in the will but you are not
given anything, there is preterition. (Nuguid)
Q. What is ineffective disinheritance?

A. Disinheritance 1) without a specification of the cause, 2) for a cause not proved, or 3) not one of those
set forth in the Civil Code
S.Y. 2003 - 2004
Q. What are the differences between preterition and invalid disinheritance?

A. Check the following chart:
Preterition Invalid Disinheritance

Annuls the institution of heirs completely Annul the institution only as it may prejudice the
intestacy follows person disinherited.
Legacy and Device are respected Same
Q. What is the difference in effects if an heir who is preterited and an heir who is invalidly disinherited?
A. A hypothetical will best illustrate this.
Problem: A dies, P100,000 net estate, children are A, B, C. X, a friend of A, was given a legacy of P25,000.
Preterition: The will of A states, Aside from legacy, everything to A and B.
Under the Will Institution annulled,

property divided
equally
A P37,500 (P75,000/2) P25,000
B P37,500 P25,000
C 0 P25,000
X P25,000 P25,000
Ineffective Disinheritance: The will of A states, I disinherit C for marrying a lawyer. Legacy of P25,000
to X. Everything else to A and B.
Under the Will Legitime Share from free Total

portion
A P37,500 P16,666.67 P12,500 P29,166.67
(P75,000/2) (1/2 of P100K)/3
B P37,500 P16,666.67 P12,000 P29,166.67
C 0 P16,666.67 P16,666.67
X P25,000
Therefore: the heir who has been invalidly disinherited get less than what the other heirs get. CRC
suggests that instead of preteriting an heir whom you dislike, just disinherit him in your will. He will get
a share less than what the other heirs get.
Q. What are the two types of preterition?

A. The two types are:
1. Where the compulsory heir is completely omitted in the will.
2. Where the heir is omitted from a deed of extrajudicial settlement, which has the effect of
preterition (Non v. Court of Appeals)
Non v. Court of Appeals

325 SCRA 652 (2000)
Petitioner and respondents are siblings whose parents left them

property. Petitioner asks that the property be equally divided between
them, but respondent claims absolute ownership over the property,
predicating her a deed of extrajudicial settlement where petitioner
waived his share in favor of respondent. Petitioner claims that the
exclusion of one other sibling from the extrajudicial settlement resulted
in preterition and should warrant the annulment of the settlement.
S.Y. 2003 - 2004
Held: The exclusion of the sibling from the deed of extrajudicial

settlement has the effect of preterition. To remedy this, resort to Art.
1104 of the Civil code, where the preterition is not attended by bad faith
and fraud, the partition shall not be rescinded but the preterited heir
shall be paid the value of the share pertaining to her.
2. The heir omitted is a compulsory heir in the direct line
Q. Who are the compulsory heirs?

A. They are:
1. Parents and ascendants
2. Children and descendants (legitimate and illegitimate)
3. Spouse
Parents
Q. Can parents of legitimate decedents be preterited?

A. There is a distinction. Parents do not obtain any legitime when they survive the testator together with
legitimate children. But when parents can obtain legitime when they survive together with illegitimate
children. So parents are preterited only when they survive with illegitimate descendants and are
completely omitted.
Q. Can parents of illegitimate decedents be preterited?

A. Only when there are no legitimate or illegitimate children. Parents of illegitimate decedents are
excluded by both legitimate and illegitimate descendants. When they concur, the parents dont get any
legitime.
Children
Q. What kind of children can be preterited?

A. Legitimate, illegitimate, adopted children may all be preterited.
Solano v. Court of Appeals

126 SCRA 122 (1983)
Solano executed a will instituting Zonia as his universal heir to all his
personal and real properties in Camalig, Tabaco and Malinao, all in Albay.
Will was admitted to probate. Brothers Garcia claim that they are
illegitimate children of Solano and they claim preterition. The RTC
found that Zonia and the brothers are all illegitimate children. This is
not contested. RTC ruled that the entire will is void and intestacy issues
due to the preterition of the Garcias.
Held: SC ruled that the preterition of the Garcias should annul the
institution of Zonia only insofar as the legitime of the omitted heirs is
impaired. The will is valid subject to that limitation. It is plain that the
intention of the testator was to favor Zonia with certain portions of his
property which, under the law, he had the right to dispose of by will, so
that the disposition is upheld as to the extent that it does not impair the
legitime of the Garcias.
S.Y. 2003 - 2004
CRC: It seems that this decision is a fluke. Whenever an heir is totally omitted, the institution of the heirs
should be annulled entirely. It should not be annulled only to the extent of the legitime of the other heirs.
The only way to possibly explain this decision would be that the institution of Zonia was actually a
device and a legacy, since there was a specific description of the real and personal properties being given
to her, and that this is not an institution. But this is really just a freak decision, and the Court probably
just used as basis, equity and justice. Note that this case shows that preterition is possible among
illegitimate children
Maninang v. Court of Appeals

114 SCRA 478 (1982)
Testator died and left a holographic will leaving all properties to

Maninang. She filed a petition for probate. Bernardo, the adopted son of
the testator, claims to be the sole heir of the decedent, filed a motion to
dismiss, claiming the will was null and void since he was preterited.
RTC dismissed the petition.
Held: There are cases where the court passes upon the intrinsic validity
of the will even before probate, and that is because practical
considerations demanded. This is not the case here, since the probate is
insisted on by the petitioners and a resolution on the extrinsic validity of
the Will is demanded. A crucial issue that demands resolution is
whether the adopted son was preterited or disinherited. The dismissal
by the RTC shows that it considered the adopted son preterited. But this
is not indubitable.
CRC: This case is not very clear as to whether adopted children may be preterited.
Allan: This case sucks! Dont blame the digest.
Acain v. IAC
155 SCRA 100 (1987)
Petitioner, a nephew of testator, filed a petition for the probate of the will
of the testator. Respondent, an adopted daughter and the widow filed a
motion to dismiss on the ground of preterition, since all the property was
given to the petitioner. Petition was dismissed. Petitioner appeals
saying preterition refers to compulsory heirs in the direct line, and does
not apply to respondents, an adopted daughter and a widow, so their
omission shall not annul the institution of heirs.
Held: As for the widow, even if she is a compulsory heir, there is no

preterition even if she is omitted from the inheritance since she is not in
the direct line. But the adopted daughters case is different. Under the
Child and Youth Welfare Code, adoption gives to the adopted person the
same rights and duties as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. It cannot be
denied that she was totally omitted and preterited.
CRC: In adoption, the line is created not by blood but by law. Right now, it is the Family Code which
creates this link, since the Child and Youth Welfare Code has been repealed.
S.Y. 2003 - 2004
Spouse
Q. Can spouses be preterited?

A. It appears that spouses are not heirs in the direct line (blood relationship) so they may not be
preterited. CRC says that this is unfair.
3. Omitted heir must survive the testator, save in representation
Testator Son Grandson
Q. If the Son predeceases the testator and nothing is given to the son or grandson, is there preterition?
A. Yes. The grandson would represent the son in inheriting from the testator so he is entitled to the
legitime of the son.
Q. What if there is no grandson?

A. Then there is no preterition.
Q. What if the grandson is illegitimate?

A. Then representation is not possible, so there is no preterition.
Q. In what cases is representation possible?

A. It is possible where the compulsory heir 1) dies before the testator, 2) is incapacitated to succeed, and
3) disinheritance. There is no representation when the heir renounces the inheritance.
Q. Does the children of a voluntary (or testamentary) heir represent him?

A. A voluntary heir who predeceases the testator transmit dies before the testator transmits nothing to his
heirs.
Substitution of Heirs
Distinguish modal institution from substitution of heirs. Question XIIIB, 2002 Bar.
Q. When can there be substitution of heirs?

A. Only in case of testamentary succession, and only as to the free portion of the estate.
Q. What are the causes for substitution?

A. The testator may designate one or more persons to substitute the heir instituted in case such heir 1)
should die before him, 2) repudiates, 3) or should be incapacitated to accept the inheritance.
Q. Can the testator provide for substitution in other cases?

A. Yes, because the free portion is entirely in the control of the testator.
Q. What if no cause for substitution is stated?

A. A simple substitution, without a statement of the cases to which it refers, shall comprise the three
mentioned.
Q. What is the purpose of substitution?

A. It is really to prevent intestacy.
Q. Can there be substitution for legacies and devices?

A. Yes, as long as these are not given as part of the legitime.
S.Y. 2003 - 2004
Q. What are the kinds of substitution?

A. They are:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
CRC: The major classes are simple and fideicommissary.
1. Simple substitution
CRC: There is a first heir and a second heir. The will provides, A, in default, substitute B. So A and B
succeed directly from the testator. They cannot succeed at the same time, and both cannot succeed. Only
either can succeed. This is alternative.
Q. After succeeding the testator, A dies. Does B substitute him?

A. No. After succeeding the testator, the title to the property is vested in A. The heirs of A would now
succeed to A.
2. Fideicommissary substitution
Q. Who are the parties to a fideicommissary substitution?

A. The parties are the first heir, the fiduciary, and the second heir, the fideicommissarry.
Q. Who succeeds from the testator?

A. Actually, both succeed the testator. So both should have capacity to succeed the testator upon his
death, and both should be alive. The succession is not simultaneous, but the second heir is certain to
inherit.
Q. Describe the mechanics of fideicommissary substitution.

A. Here, the first heir instituted is entrusted with the obligation to preserve and to transmit to a second
heir the whole or part of the inheritance.
Rabadilla v. Court of Appeals

334 SCRA 522 (2000)
Belleza devised land to Rabadilla with the condition that he (or his heirs,
on his death) should deliver 75 piculs of sugar to Maria until she dies.
The will also provides that should there be failure to deliver, Maria shall
immediately seize this lot from my heir and shall turn it over to my
near descendants, and the latter shall have the obligation to deliver sugar
to Maria. Maria filed a complaint for reconveyance of the land, saying
that Rabadilla, was to be substituted by the testators heirs since the
obligation to deliver the fruits to the respondent was not complied with.
The CA found that this was a case of modal institution and ordered
Rabadilla to convey the land to the estate of Belleza. Rabadilla appealed,
claiming that this was a substitution. Since Belleza, the testator, has no
heirs, there is no duty to convey the land to any person.
Held: CA is correct. Substitution may either be simple or

fideicommissary. There is no simple substitution because the will does
not provide that should Rabadilla default due to predecease, incapacity
S.Y. 2003 - 2004
or renunciation, that the testators descendants would substitute. What

the will provides is that should Rabadilla not fulfill the conditions, the
property shall be turned over to the testators descendants. Neither is
there a fideicommissary substitution because Rabadilla is allowed to
alienated the property provided the sale is to near descendants or the
sisters of the testator. Thus, a very important element of a
fideicommissary substitution is lacking: the obligation clearly imposing
upon the first heir the preservation of the property and its transmission
to the second heir. Another missing element is that the second heir must
not be beyond one degree from the first heir. The manner of Rabadillas
institution is evidently modal, since it imposes a charge upon the
instituted heir without affecting the efficacy of such institution.
Q. What are the limitations of fideicommissarry substitition?

A. It shall be valid provided:
1. Such substitution does not go beyond one degree from the heir originally instituted, and
2. The fiduciary or first heir and the second heir are living at the time of the death of the testator.
Q. What does it mean when the law says that the substitution may not go beyond one degree from the heir
originally instituted?
A. It pertains to blood relationship. So only a parent or a child can be fideicommissary substitutes.
Ramirez v. Vda de Ramirez

111 SCRA 704 (1982)
In a will, Juan and Roberto, respondents, were instituted as simple and

fideicommissary substitutes of Wanda. They opposed the substitution.
As to the simple substitution, they claim it is void because Wanda
survived the testator. As to the fideicommissary substitution, they claim
it is void because Wanda is not related to them, so it must be conveyed to
them immediately.
Held: As to the simple substitution, it is valid even if the heir designated

survives the testator, inasmuch as simple substitution can take place also
by incapacity to inherit or by renunciation.
As to the fideicommissary substitution, the substitutes are not
related to the supposed fiduciary. But the validity of the
fideicommissary substitution depends on what is meant by the
requirement of the first heir being one degree from the second heir. The
Supreme court of Spain has adopted the construction that the second
heir must be related to and be one generation from the first heir. Thus,
the fideicommissary can only be either a child or a parent of the first heir.
These are the only relatives who are one generation or degree from the
fiduciary. Therefore, there is no absolute duty imposed on Wanda to
transmit the usufruct to the substitutes/respondents.
Q. Can the fiduciary sell the property? Is he obliged to preserve the ownership?
A. The fiduciary cannot sell the property. The fiduciary is akin to a mere usufructuary who holds the
property in trust for the fideicommissary heir. If he sells, he will be in breach of this fiduciary duty.
Q. But then what will be the effect of the violation? Between the purchaser and the fideicommissary, who will be
favored?
S.Y. 2003 - 2004
A. The fiduciary has no absolute right to the title. So the sale to the third person is not effectual even if
there is good faith. When the cause of the substitution takes place, the fideicommissary may now take the
property.
Q. When does the obligation to transmit arise?

A. It is left to the will of the testator. If he does not expressly provide for it, it is understood to be at the
death of the fiduciary.
Q. If there are changes in the quality of the property, will the fiduciary be liable?
A. It depends:
1. Damages arising from a) fortuitous events and b) normal wear and tear fiduciary not liable
2. Expenses for preservation charged against the fideicommissary
Q. Where can the expenses for preservation be taken?

A. From the increase in value of the property or its earnings.
Q. Can it be charged from the principal?

A. No. Only from the earnings and the appreciation in value. 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.
Q. What if the fideicommissary dies ahead of the fiduciary?

A. The property goes to the heirs of the fideicommissary. Their heirs of the fiduciary will NEVER inherit.
Q. What if the fiduciary predeceases the testator?

A. Then the fideicommissary substitution will not be effective.
Q. What are the prohibitions as to fideicommissary substitutions?

A. 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 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.
Note: Art. 863 one degree
Vda. de Kilayko v. Tengco

207 SCRA 600 (1992)
Maria Lizares died testate, and Eustaquia was one of the heirs. After the
finality of the probate and partition, petitioners Kilayko filed a case for
reconveyance of property given to Eustaquia under the will. They base
their claim on a supposed fideicommissary substitution under the will of
Lizares (the will was written in Spanish).
Held: Res judicata bars the case. Granting that it has not barred the case,
the will does not impose upon Eustaquia a clear obligation to preserve
the estate in favor of Kilayko, and neither may the will be said to provide
for simple substitution. Where the testator merely names an heir and
S.Y. 2003 - 2004
provides that if such heir should die, a second heir also designated shall
succeed, there is no fideicommissary substitution. The substitution
should be construed as a mere simple substitution. Here, Eustaquia
survived the testator. Hence, there can be no substitution of heirs for
upon the testators death, the properties unconditionally devolved upon
Eustaquia.
Q. Does the nullity of the fideicommissary substitution prejudice the validity of the institution of the heirs first
designated?
A. No; the fideicommissary clause shall simply be considered as not written.
3. Brief or Compendious substitution.
Q. What is brief substitution?

A. In brief substitution, upon the default of one heir, two or more heirs substitute him.
Q. What is compendious substitution?

A. Upon the default of two or more heirs, one heir substitutes them.
Note: The testator can provide portions in substitution. For example, All to X. On default of X, 1/4 to A
and 3/4 to B.
Q. Will says All to A and B. C is compendious substitute. A predeceases the testator. Does C get As share
immediately?
A. There are two schools of thought:
1. Simple view C takes the share immediately.
- flaw: it is of a brief succession school of thought
2. Caguioa the immediate taking can be done only when there is a designation of the shares. If
not, the probable intention of the testator is for either of the simultaneously instituted heirs
(either A or B) to get everything.
- flaw: this contravenes the ISRAI theory of Paras, since this imposes accretion of the
shares of A and B. But substitute comes before accretion.
CRC: Its really your choice between these two schools of thought. Both of them have their flaws.
4. Reciprocal substitution
Q. What is reciprocal substitution?

A. Here, there is no first or second heir. Both are substitutes of each other. For example, All to A and B.
If either cannot succeed, the share goes to the other. Reciprocal substitution can apply whether or not
there is a designation of the shares.
Q. I institute A, B, and C as reciprocal substitutes. 50% to A, 25% to B, 25% to C. B predeceases. How is the
substitution done?
A. A and C will take the share of B in a 2:1 ratio.
Q. What is the condition of the substitute taking the share?

A. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary, or the charges or conditions are personally
applicable only to the heir instituted.
S.Y. 2003 - 2004
Q. For how long can the testator hold the property inalienable?
A. Twenty years. The dispositions of the testator declaring all or part of the estate inalienable for more
than twenty years are void.
The provisions on conditional testamentary dispositions and testamentary dispositions with a term
will be discussed by CRC in the portion on Oblicon.
Legitime
What does your heart tell you? Aragorn to Gandalf
That Frodo is alive. Gandalf to Aragorn
Q. Is a will needed for the heirs to obtain their legitime?

A. No. The legitime is reserved for the heirs by law. But in testate succession, a line is drawn by
legitimes.
Q. Is there any difference between legitime and intestacy?

A. Yes. In intestacy, all the properties of the decedent is affected, and is distributed according to the
presumed will of the decedent. In the system of legitimes, only a portion of the properties is affected, and
it is distributed independent of the will of the testator. The intention of the testator is discarded.
Q. The legitime imposes an obligation on the testator to preserve the properties. What does this mean?
A. It means that the testator cannot dispose of all his properties gratuitously and has to preserve a portion
for his heirs.
Q. Can the testator sell his property? Does he need the consent of his heirs to do so?
A. The testator can sell his property, because in sale, the property does not really leave the testators
estate, it is merely converted into cash. The legitime speaks of cash value. Cash replaces the assets. So it
is in donations where the obligation to preserve is present.
Q. Is there such a thing as an inofficious sale?

A. No. Inofficiousness means a transfer which impairs the legitime of the compulsory heirs. A sale can
never be inofficious since the property is exchanged for other property. There are only inofficious
donations, when the donation impairs the legitime.
Q. What is the basis of the legitime?

A. The assets existing at the time of the death of the decedent, plus the assets donated (which are
collated).
Q. At what point do you determine the value of the donations?

A. The value at the time of the donation. The increase and decrease of the value after the donation is for
the account of the donee.
Q. How do you challenge the sale?

A. The sale may be challenged if it is not legitimate, and it is merely simulated or fictitious.
Q. Does legitime speak of specific property? Is the donated property itself brought back?
A. Legitime speaks of a mass of property. It does not speak of specific property. So only the value of the
donated property is brought back to the estate. This is in stark contrast with reserva troncal, where the
specific property is brought back to the estate.
Q. Who are the compulsory heirs?

A. 1) Children and descendants, 2) Parents and ascendants, 3) Widow or widower.
S.Y. 2003 - 2004
Q. How can you group compulsory heirs?

A. They can be grouped in two ways:
1. Whether they inherit a definite portion of the estate
2. Whether they can be excluded by others
Q. What is the grouping of the compulsory heirs based on whether they inherit a definite portion?
A. They are:
1. Fixed these heirs always get a fixed share regardless of who they concur with. They are:
a. legitimate descendants they always get 1/2 of the estate
b. parents/ascendants they always get 1/2 of the estate, but only when they inherit
2. Variable these heirs dont get a fixed share
a. spouses
b. illegitimate children
Q. What is the grouping of the heirs based on whether they can be excluded?
A. They are:
1. Primary these heirs always inherit, and cannot be excluded
a. legitimate children/descendants
b. illegitimate children
c. surviving spouse
2. Secondary these heirs may be excluded
a. parents and ascendants they are excluded by legitimate children, but can concur with
illegitimate children, except when the decedent is illegitimate
Q. What is the order of priority in the legitime of the heirs of a legitimate decedent?
A. It is:
1. Legitimate children/descendants excluding illegitimate descendants, due to the bar of Art. 992
2. Parents/ascendants
3. Illegitimate children & legitimate and illegitimate descendants
4. Surviving spouse
Q. What is the legitime of the heirs of a LEGITIMATE DECEDENT?

Legitimate Parents Illegitimate Surviving Spouse
children children
1. Legitimate 1/2 (equal Leg ch 1/2 Leg ch 1/2 Leg ch 1/2
children among Parents ILC each 1/2 Spouse equal
themselves) NONE of the share of to share of leg chi
each leg ch if more than one,
1/4 if only one
2. Parents Parents 1/2 (equal Parents 1/2 Parents 1/2
NONE between lines) ILC 1/4 Spouse 1/4
Leg chi 1/2
3. Illegitimate ILC 1/2 share ILC 1/4 1/2 ILC 1/3
children of leg chi Parents 1/2 Spouse 1/3
Leg chi 1/2
4. Surviving Spouse - Equal Spouse 1/4 Spouse 1/3 1/2, Except: 1/3
Spouse to share of each leg Parents 1/2 ILC 1/3 in articulo mortis if
chi if more than spouse died within
one, 1/4 if only 3 months Except if
one lived together
Leg ch 1/2 more than 5 years
S.Y. 2003 - 2004
Q. Are there possible combinations of three?

A. Yes. They are as follows:
1. Parents/Illegitimate children/Spouse 1/2, 1/4, 1/8
2. Legitimate children/Spouse/Illegitimate children 1/2, share of each LC or 1/4 if only one, 1/2
share of each LC but not to exceed free portion
Q. What is the order of priority in the legitime of the heirs of an illegitimate decedent?
A. It is:
1. Legitimate children/descendants both leg & illeg, since the bar of Art. 992 does not apply
2. Illegitimate children & legitimate and illegitimate descendants
3. Parents
4. Surviving spouse
Q. What is the legitime of the heirs of a ILLEGITIMATE DECEDENT?

Legitimate Illegitimate Parents Surviving Spouse

children children
1. Legitimate 1/2 (equal Leg ch 1/2 Leg ch 1/2 Leg ch 1/2
children among ILC 1/2 share Parents Spouse equal
themselves) of each leg chi NONE to share of leg chi
if more than one,
1/4 if only one
2. Illegitimate ILC 1/2 share 1/2 of estate ILC 1/2 ILC 1/3
children of each leg chi Parents Spouse 1/3
Leg ch 1/2 of NONE
estate
3. Parents Parents Parents 1/2 of estate Parents 1/2
NONE NONE Spouse 1/4
Leg ch 1/2 ILC 1/2
4. Surviving Spouse - Equal Spouse 1/3 Spouse 1/4 1/2, Except: 1/3
Spouse to share of each leg ILC 1/3 Parents 1/4 in articulo mortis if
chi if more than spouse died within
one, 1/4 if only 3 months Except if
one lived together
Leg ch 1/2 more than 5 years
Q. Are there possible combinations of three?

A. Yes. But only one, that of the legitimate children/Spouse/Illegitimate children 1/2, share of each LC
or 1/4 if only one, 1/2 share of each LC but not to exceed free portion
De la Merced v. De la Merced
303 SCRA 683 (1999)
Evarista died and her brother Francisco inherited. He died too. His
illegitimate son, Joselito, asked to be part of Franciscos share in
Evaristas estate. The heirs of Francisco argue that being an illegitime
child, Joselito cannot inherit from Evarista, because of the bar in Art. 992
prohibiting illegitimates from inheriting from legitimates.
HELD: Art. 992 is not applicable because involved here is not a situation
where an illegitimate child would inherit from a legitimate sister of his
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father. Rather, the illegitimate son would be inheriting from his father,
the latters share in what was already inherited from the deceased sister,
Evarista. So there is no legal obstacle for the illegitimate son to inherit in
his own right as an heir to his fathers estate.
Reserva Troncal
You fool! No man can kill me! Die now Witch King to Eowyn
I am no man! Eowyn to Witch King
CRC: The Spanish Civil Code used to have several provisions on reserva in order to preserve wealth and
ownership. The New Civil Code does away with all of them except reserva troncal. This is a means of
preserving wealth within one family. But this is really a feudalistic and oligarchic in concept. It is also
contrary to the constitutional precepts on distribution of wealth.
Q. What is the difference between legitime and reserva troncal?

A. The testator, in legitime, is required to preserve certain aliquot shares. But in reserva troncal, he is
required to preserve certain specific properties.
Note: Only ascendants are burdened with the obligation to preserve.
Q. What is the most common scenario where reserva troncal occurs?

A. A parent (lets say the father, since Jack says men usually die before women, since women are better
suited to withstanding pain and suffering) dies and leaves property to the son. The son dies then the
property is inherited by the mother.
Origin Reservista
(father) (mother)
gratuitous operation of
title law
Prepositus
(son)
Q. Who is the origin?

A. He is the source of the property.
Q. Which persons may be the origin?

A. Only two kinds of people may be origins:
1. Ascendant of the prepositus
2. Brother or sister of the prepositus
Solivio v. Court of Appeals

182 SCRA 119 (1990)
Esteban acquired property from his mother. Esteban died leaving as his
heir a maternal aunt, and a paternal aunt. The paternal aunt was able to
have the properties placed in her name. But the maternal aunt filed an
opposition, claiming that she is also an heir. The maternal aunt claims
that all of the property is hers, since it is covered by reserva troncal.
S.Y. 2003 - 2004
HELD: The property of Esteban is not reservable property, because

Esteban was not an ascendant, but the desendant of his mother, from
whom he inherited the properties. Therefore, he did not hold his
inheritance subject to a reservation in favor of his maternal aunt. The
reserva troncal applies to properties inherited by an ascendant from a
descendant, who inherited it from another descendant. It does not apply
to property inherited by a descendant from his ascendant, the reverse of
the situation covered by reserva troncal.
Allan: I think the maternal aunt was claiming that Esteban was a reservista. But Esteban, being a
descendant, can never be a reservista. At most, he was a probable prepositus, but since he no longer had
an ascendant to transfer the property to, reserva troncal never arose.
Q. Who can be the prepositus?

A. Any descendant can be a prepositus. It may be a child or a grandchild. The degree does not matter.
Q. Illustrate the danger sought to be avoided by reserva troncal.

A. Paternal grandfather dies and leaves property to the grandson. Grandson dies and his property is
inherited by maternal grandmother. Without reserva troncal, it is possible for the siblings of the
grandmother to inherit the property. Thus, the wealth is transferred from the paternal line to the
maternal line.
Q. Paternal grandfather dies, leaves property to grandson. Grandson dies, leaves property to father.
A. There is no reserva troncal here, since the property never left the paternal line.
Q. What are the principles to remember in reserva troncal?

A. They are as follows:
1. Reserva troncal is limited to the legitimate line.
2. There may be reserva troncal with an adopted child as prepositus, but not always.
3. There may be reserva troncal with a collateral as origin, but not always.
4. From the origin to the prepositus, the property should transfer by gratuitous title.
5. From the prepositus to the reservista, the property should transfer by operation of law.
6. The prepositus must not leave legitimate descendants.
1. Reserva troncal is limited to the legitimate line.
Q. Why is reserva troncal limited to the legitimate line?

A. Because of the bar on illegitimate relatives from inheriting, provided by Art. 992. So the only people
who can benefit from the reserva troncal are legitimate relatives of the origin and the prepositus.
Q. Lets take this step-by-step. Can the father donate property to the illegitimate son?
A. Yes. The illegitimate son is entitled to succeed from the father.
Q. Can the property of the illegitimate son be inherited by the mother?

A. Yes. Parents are compulsory heirs of their children.
Q. So can the grandfather, uncle, or cousin inherit?

A. No. The bar provided by Art. 992 prevents the illegitimate from inheriting from the legitimate
relatives, and vice versa.
Q. What if the father has other illegitimate children, can they inherit via reserva troncal as reservatarios?
A. There are two views:
S.Y. 2003 - 2004
1. One view provides that the reservatario inherits from the prepositus. So under this view, the
reservatarios can inherit, since the bar under Art. 992 will not apply to prevent illegitimates from
inheriting from other illegitimates.
2. Second view says that the reservatario inherits from the reservista. There can be no transfer here,
since the bar under Art. 992 will apply.
CRC: The weight of the authorities is with the first view, that the reservatarios inherit from the
prepositus. So the bar of Art. 992 will not apply, and they can inherit.
2. There may be reserva troncal in the adopted line, but not always.
Q. Can an adopted child be a reservatario? For example, father dies, leaves property to son. Son dies, leaves
property to mother. Father and mother have an adopted child. Is there reserva troncal in favor of this child?
A. It all boils down to the twin requirements that the reservatario should be in the direct line and should
be within three degrees from the prepositus. So if the adopted son is a nephew or an uncle of the
prepositus, then it is allowed. If the adopted son was an illegitimate child of the father, then it is allowed.
But if the adopted son is a stranger, then it is not allowed. It may be argued that adoption creates a line
by fiction of law. But this line exists only between the father and the adopted son. The prepositus is not
connected to the adopted son, so the adopted cannot claim.
Q. Can an adopted child be a prepositus?

A. No. The line created is personal between the adopter and the adoptee.
3. There may be reserva troncal in the collateral line, but not always.
Q. Father and Mother have two children, A and B. Father dies. A dies and wills the property to B. B dies without
issue, and the property transfers to his mother. Is there reserva here?
A. No. The danger sought to be avoided by reserva is not present, because the child A, and his mother
both belong to the same line. So there is no obligation to preserve the property in favor of the line from
which the property came from.
Q. In what instance may the brother or sister be an origin?

A. It is limited to when the sibling is a half-brother or a half-sister. Father and Mother marry, bears
Cinderella. Mother dies. Father marries Step Mother, bears Snow White. If Father dies and transfers
property to Cinderella. Cinderella dies transferring property to Snow White. Snow White dies,
transferring property to Step Mother. At this point, the property has changed lines. So there is reserva
troncal. Step Mother now has to preserve the property in favor of the reservatarios from the Fathers line.
Q. Im confused.
A. Study illustration below:
Mother Father Step Mother

(reservista)
gratuitous title operation
Cinderella Snow White of law
(origin) (prepositus)
Q. Can the reservatario be a sibling or a collateral?

A. Yes, as long as he or she is in the same line and is within the third degree of the preopositus.
Q. Can the reservista be a collateral?

A. Never. The reservista is always an ascendant.
S.Y. 2003 - 2004
4. From the origin to the prepositus, the property should transfer by gratuitous title.
Q. How should the property transfer from the origin to the prepositus?
A. It should transfer by gratuitous title. This limits the manner of transfer to donation and succession.
Both testate and intestate succession are covered. Even the legitime is covered. So a transfer is gratuitous
if the prepositus does not pay for the property transferred.
Q. What if the property acquired by the prepositus was sold to the reservista, then purchased again by the
prepositus?
A. Then the property would no longer be covered by reserva troncal, because it was now acquired for
consideration.
5. From the prepositus to the reservista, the property should transfer by operation of law.
Q. How should property transfer from the prepositus to the reservista?

A. By operation of law. This includes both the transfer by legitime or by intestacy.
Q. What portion of the property transferred by legitime is covered by reserva troncal?

A. This is answered by the theory of reserva maxima and reserva minima.
FACTS: Father dies, transfers hacienda to son.
Q. What if the hacienda is the only property of the son?

A. Then the entire hacienda goes to the reserva. There is a maxima/minima distinction only when the
prepositus has other property.
Q. What if the property transmitted from the origin to the prepositus is cash?
A. If the cash is the only property of the son and he did not spend the entire thing, then it will be covered
by reserva.
CRC: If the son dies intestate and does not have property apart from what he obtained from the origin,
forget reserva maxima/minima. The entire property goes to reserva. Maxima/minima applies only
when the son owns some property of his own property.
FACTS: Sons net estate: P100M cash, hacienda worth P100M. Dies without issue survived only by his
mother. Will says, All to my mother.
Q. Explain reserva maxima under the given facts.

A. In reserva maxima, as long as the property can be accommodated in the legitime, the entire property
will be reservable. So the entire hacienda is covered by the reserva since it can be accommodated into the
legitime. The legitime will be the hacienda worth P100M, the free portion will be the P100M cash.
Q. Explain reserva minima under the given facts.

A. All the property passing to the reservista must be considered as passing partly by operation of law and
party by will of the testator. So you will get 50% of the lot by legitime, 50% by reason of the will. Here,
only half of the hacienda becomes reservable.
Q. Which is preferred?
A. The one more preferred is usually reserva minima. It is more democratic. But it does not answer the
purpose of the reserva troncal.
S.Y. 2003 - 2004
6. The prepositus must not leave legitimate descendants.
Q. If the prepositus has his own descendants, will there still be reserva?
A. No. For the legitimate prepositus, his legitimate children will exclude the ascendants. The legitimate
descendants will prevent the inheritance of ascendants. For the illegitimate prepositus, there is a bar in
Art. 992 from inheriting. Essentially, there is no reserva in the illegitimate family. There is only reserva
in the legitimate line.
Q. What are the qualifications of the reservatarios?

A. They must be in the same line as the prepositus, and within three degrees from him.
Q. So who are these people? Indicate also whether they may be reservatarios.
A. Let us identify all the heirs that fall within the same line and within the third degree:
1. First degree
a. Parents NO; will be the reservista
b. Children NO; Leg - will exclude the ascendant, Illeg no reserva
2. Second degree
a. Grandparents YES
b. Brother/sister YES
c. Grandchildren NO; Leg will exclude ascendant, Illeg no reserva
3. Third degree
a. Great grandparents YES
b. Great grandchildren NO; Leg will exclude ascendant, Illeg no reserva
c. Nephews and nieces YES
d. Uncles and aunts - YES
Residual Issues on Reserva
Q. From whom does the reservatario inherit?

A. From the prepositus. Theoretically, there is no absolute ownership by the reservista. So he isnt the
one from whom the reservatario should inherit. The reservatario just has to survive the reservista in
order to inherit.
Q. Is there representation among the reservatarios?

A. Only insofar as those who represent each other belong to the third degree. Those in the third degree
can represent those in the second degree, those in the second degree can represent those in the first
degree. The only effect is for them to obtain preference, since the nearer exclude the further. But those
beyond the third degree can never inherit by reserva troncal, not even by representation. Cousins
therefore cannot obtain the reserva, since they are in the fourth degree. They are barred from inheriting
the reserva.
Q. Compare the reservista in reserva troncal with the fiduciary in fideicommissary substitution.
Reservista Fiduciary
Takes the property not knowing it is subject to Takes the property knowing that it is subject to a
reserva troncal, especially if the ascendant does not subsequent transfer
know where the property of the
prepositus/descendant comes from
Usually in good faith; does not know his duties He knows that he has fiduciary duties
Reserva troncal does not have to be provided in the Fideicommissary substitution has to be provided
S.Y. 2003 - 2004
will for in the will

Has some duties (unsettled) A position of trust, has certain trust characteristics,
so he has the duty to preserve and to transfer
Q. Does the reservista have to comply with duties?

A. Under the Spanish Civil Code, the reservista in reserva viudal had three duties. The provisions stated
that the reservista in reserva troncal has the same duties. These duties are as follows:
1. To annotate the nature of the reserva
2. To make an inventory of the assets under reserva
But the New Civil Code has done away with reserva viudal, and there are no longer duties provided in
the Code. So some commentators will say that he has no duties, despite of the rulings in the cases of
Gonzales and Sumaya.
Sumaya v. IAC
201 SCRA 178 (1991)
Raul inherited property from his father. He died and this property was
inherited by his mother, who sold the property to Sumaya. Upon the
death of Consuelo, Rauls brothers and sisters filed a case claiming that
the property sold to Sumaya was reservable in character, and claim
reconveyance. Sumaya claims that it is an innocent purchaser for value.
HELD: The reservista (here, Consuelo the mother) has the obligation to
annotate the reservation in the title. The jurisprudential rule requiring
annotation of the property subject to reserva viudal as it applies to
reserva troncal stays despite the abolition of reserva viudal. The right to
compel registration accures upon the time of the death of the reservista
and not upon the death of the prepositus. Only when the reservista dies
will the reservatario acquire the reserved property and only then will
they take their place in the succession of the prepositus of whom they are
relatives within the third degree.
Although there was no annotation on the title, Sumaya was not an

innocent purchaser for value, since the parties had knowledge of the
reservable character.
Q. If the reservista does not cause the annotation of the reserva on the title, what can the reservatario do?
A. He can ask for the annotation. He has personality to ask for the lien to be annotated. But there will be
no penalty for the reservista for his omission.
Q. Can there be an innocent purchaser for value?

A. If the reservation is annotated, then there can be no innocent purchaser for value.
Q. But is the sale still valid?

A. Yes, because the reservista has valid title. CRC says however, that the Supreme Court
pronouncements on this matter have vacillated (or, as CRC says, has flip-flopped).
Q. What is the right of the reservatario in this case?

A. He can ask for the return of the property. But this right is subject to prescription.
Completing the Legitime (includes Inofficious Donations & Legacies and Devices)
Home is behind, the world ahead,
And there are many paths to tread.
Through shadow, to the edge of night,
Until the stars are all alight.
Mist and shadow, cloud and shade,
All shall fade! All shall fade ...
- Pippin singing
S.Y. 2003 - 2004
Q. Why is reserva troncal placed together with legitimes?

A. Because the reserved property is not included in the inventory of the assets to complete the net estate
of the heir
Gonzales v. CFI Manila

104 SCRA 479 (1981)
Filomena inherited property from her father Benito. Filomena died

intestate, so property was inherited by mother, Mrs. Legarda. Mrs.
Legarda executed a will bequeathing the property to her grandchildren.
After she died, one of her daughters sought to exclude from the
inventory that Mrs. Legarda obtained from her daughter Filomena. The
daughter (2nd degree) claims that these properties are subject to reserva
troncal. The grandchildren (3rd degree) in turn argue that since they are
heirs in the third degree, then the result is the same.
HELD: Mrs. Legarda cannot convey the reservable property which she
inherited from Filomena. All of the reservatario are equally entitled to
share in the reserva troncal. While it is true that by giving the reservable
property to only one reservatario that it did not pass to the hands of
strangers, nevertheless, it is likewise true that the grandchildren were
only some of the reservatario and there is no reason why the other
reservatarios should be deprived of their share in the reservable
property.
Q. What are the steps in completing the legitime?

A. They are:
1. Listing and valuation of the assets of the deceased
2. Computation of the Net Partible Estate
3. Imputing the donations
4. Reduction of the donations
1. Listing and valuation of the assets of the deceased
CRC: This should include only the assets of the deceased at the point of death. From this inventory,
subtract the liabilities of the testator. This figure is called the Net Estate. You proceed to the computation
of the net partible estate only when you have more assets than liabilities. When you have more liabilities
than assets, you have an insolvent estate. So apply the provisions of the Code on Concurrence and
Preference of Credits to partition the estate among the creditors.
2. Computation of the Net Partible Estate
CRC: The net partible estate is computed by collating the donations and adding this to the Net Estate.
Collation is done for purposes of equalization among the heirs. At this point of collation, there is no
S.Y. 2003 - 2004
actual or physical return of the assets. Only the value at the time of the donation is brought back to the
estate. All transfers which are gratuitous are collated. Transfers to both compulsory heirs and voluntary
heirs are collated. The value obtained is the Net Partible Estate. This becomes the basis for the legitime
and the free portion.
3. Imputing the donations
FACTS: X dies, leaving as heirs his children A and B, wife Y. He gave a donation of P50M to A during his
lifetime, and P50M to stranger. He left P170M of assets, P20M liabilities.
Inventory P170M
- Liabilities P 20M
--------
Net Estate P150M
+ Donations P 50M
--------
Net Partible Estate P200M
So:
Legitime Donations given
A P50M P50M
B P50M -
Y P50M -
Stranger - P50M
The donation of P50M to A, the child, is imputed to his legitime. The donation to the stranger of P50M is
imputed to the free portion. Both are allowed. Note that the P200M need not be at hand. As in this case,
some of the shares (particularly the donation to A and the Stranger) have been paid already.
4. Reduction of the donations
This is done only when the legitime is impaired. The basic things to remember:
1. Donations are given priority; annul or reduce the legacy and devise ahead of the donation.
CRC: The legacies and devises are contained in a will. The donation is inter vivos. Both constitute the
testators free will, so it should be respected. But the donation was done earlier, so it is given preference.
Q. Art. 911 says that the reduction of the devises or legacies shall be pro rata, without any distinction whatsoever.
But Art. 950 says that the reduction of devises and legacies follow a certain order, that is, remuneratory,
preferential, those for support, then education. How do you reconcile this conflict?
A. Art. 911 applies only when the question of preserving the legitime of compulsory heirs from
inofficious dispositions is involved, while Art. 950 applies when such question is not involved in the case,
and the conflict is only among the legatees and devisees only, since the only people who survive are the
legatees and devisees.
Q. What is the rule where the devise or legacy consists of a usufruct or life annuity?
A. If the value can be accommodated in the free portion, it is to be respected. If its value is greater than
that of the disposable portion, the compulsory heirs may choose between:
1. Complying with the testamentary provision, or
2. Delivering to the devisee or legatee the entire free portion only
S.Y. 2003 - 2004
Art. 912. If the devise subject to reduction should consist of real property, which cannot be
conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and
in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in
cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that of the disposable portion and of the share
pertaining to him as legitime.
Imperial v. Court of Appeals

316 SCRA 393 (1999)
Leoncio Imperial donated property to Eloy Imperial, his son. Leoncio

died, leaving as his heirs, Eloy, and an adopted son, Victor. After the
death of Victor, his biological siblings filed a complaint to annul the
donation, claiming it is inofficious, as it impaired the legitime of Victor.
Eloy, the donee son, claims there has been prescription.
HELD: This is a case of a real action over an immovable. The Civil Code
does not provide for the prescriptive period for the reduction of
inofficious donations. So the general rule applies, embodied in Art. 1144
which says that actions upon an obligation created by law must be
brought within 10 years from the time the right of action accrues. Thus,
the 10 year period applies to the obligation to reduce inofficious
donations. This shall be reckoned from the time the cause of action
accrues, which is upon the death of the donor-decedent. This is because
only then can the net estate be ascertained and the legitimes determined.
The case was filed 24 yers after the death of Leoncio, the original
decedent. So the action has long prescribed. Note that a claim for
legitime does not amount to a claim for title.
2. When the legacies and the devises are exhausted and the legitime is still impaired, reduce the
donations.
Q. Is there any preference among donations?

A. Based on time. The rule is last in, first out. So the prior donations are respected since they were given
ahead.
Q. When it is necessary to bring the donation back to the estate, is the donee charged with interest?
A. No. There is no penalty or damages or interest imposed on the donee, since it was given by the
testator.
Q. What is the exception on donations that may not be collated even when it impairs the legitime?
A. The exception is found in Art. 1070: Wedding gifts by parents and ascendants consisting of jewelry,
clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the
sum which is disposable by will.
Vizconde v. Court of Appeals

286 SCRA 217 (1998)
Estrellita purchased from Rafael, her father, the Valenzuela property.

She sold this and bought the Paranaque property. When she died, half
of the Paranaque property was inherited by her father, and half was
inherited by her husband, Lauro, since she died without issue. The
S.Y. 2003 - 2004
father died. Later, the heirs of the father claim that the sale to Estrellita
of the Valenzuela property was simulated. Hence, the Paranaque
property, which was purchased from the sale of the Valenzuela property,
should be brought to Rafaels estate for collation.
HELD: The order of collation is premature, because the records do not

indicate that the legitime of any of Rafaels heirs have been impaired to
warrant collation. In any case, the husband is not one of Rafaels
compulsory heirs. The husband was not even a creditor of the father.
Hence, he may not be dragged into the intestate proceedings.
Furthermore, it is to be stressed that Estrellita died ahead of her father.
In fact, it was the father who inherited from Estrellita. Thus, collation
may not be allowed as to the value of the Valenzuela property, since it
has long been returned to the estate of Rafael.
Collation is an act by virtue of which the descendants who intervene in

the division of the inheritance bring into the common mass, the property
received from him, so that the division may be made according to law
and the will of the testator. Collation is only required of compulsory heir
succeeding with other compulsory heirs and involves not the property
itself but the value of the property at the time it was donated. Hence,
collation does not impose any lien on the property or the subject matter
of the collationable donation.
Disinheritance
That future is almost gone. Elrond to Arwen
But it is not lost. Arwen to Elrond
Q. What is the effect of disinheritance?

A. Disinheritance deprives a compulsory heir of his legitime and his share in the free portion.
Q. How do you effect a disinheritance?

A. Only through a will, and the legal cause shall be specified.
Q. What are the common grounds for disinheritance?

A. They are:
1. When the heir has been found guilty of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
2. When the heir has accused the testator of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found groundless;
3. When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a
will or to change one already made;
4. A refusal without justifiable cause to support the testator
1. When the heir has been found guilty of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants.
Q. Is final conviction needed?

A. It is needed only to disinherit the ascendant and the descendant. As for the spouse, conviction is not
needed, because an attempt against the life of a spouse is ground for legal separation. One of the grounds
for disinheriting a spouse is when he or she gives ground for legal separation.
S.Y. 2003 - 2004
Q. So is legal separation needed to disinherit?

A. No. Merely giving ground is sufficient.
Q. Does the attempt include the other stages in the criminal act?
A. Only the frustrated stage. It cannot include the consummated stage, because after the heir kills the
testator, the testator can no longer validly disinherit the heir, on account of his death. However, the heir
still cannot inherit because of unworthiness. Unworthiness arises by operation of law, and there is no
need for it to be provided in the will.
2. When the heir has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
Q. Explain the six years penalty.

A. It means that six years is the maximum imposable penalty. It does not pertain to the actual penalty
imposed.
Q. Must the heir file the criminal complaint himself?

A. No. He may just be a witness. Note that by reason of filial privilege, the heir cannot be compelled to
testify. So if he testify, he waives this privilege and a cause for disinheritance arises. However, the
accusation here is must be groundless. The truth, as CRC says, shall set you free.
Q. To disinherit the descendant, the accusation must be groundless, and for the ascendant and the spouse, false.
Any difference?
A. None. No distinction.
Q. Who determines if the accusation is groundless?

A. The court makes the finding, by acquitting the accused testator. The finding of groundlessness does
not lie with the testator.
3. When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made;
Q. Is there a need for the new will to benefit the new heir?
A. No. So even if the will is made for the benefit of the maid or the driver, the heir is disinherited.
Allan: CRC thinks this ground is unfair.
4. A refusal without justifiable cause to support the testator
CRC: The refusal here has to be unjustified. If the heir has no resources, obviously the refusal cannot be
unjustified. If the heir has resources, you have to check the reason. If the reason is merely greed, then the
testator may disinherit. If the reason is because whenever the heir gives him money, he goes and buys
liquor, then the refusal is justified.
Q. What are the grounds for disinheriting a descendant which is unique to him?
A. They are:
1. Maltreatment of the testator by word or deed, by the child or descendant;
2. When a child or descendant leads a dishonorable or disgraceful life;
3. Conviction of a crime which carries with it the penalty of civil interdiction.
S.Y. 2003 - 2004
Q. What does maltreatment of the testator consist of?

A. Not just physical, hence by word or deed. So if you go around and tell people about family secrets,
then this is a ground for disinheritance. But the maltreatment should be intentional.
Q. Why does leading a dishonorable life constitute a ground for disinheritance?

A. Although the child may argue that he may lead his life the way he chooses, doing so will cause
damage to the name of the testator. So he may disinherit the child. The dishonorable life need not be
sexual in nature. Leading a life of an estafador can also be ground for disinheritance.
Note: Civil interdiction is an accessory penalty, imposed for crimes where the penalty is death, reclusion
perpetua and reclusion temporal.
Q. What are the grounds for disinheriting an ascendant which is unique to him?
A. They are:
1. When the parents have abandoned their children or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;
2. When the parent or ascendant has been convicted of an attempt against the life of the testator, his
or her spouse, descendants, or ascendants;
3. The loss of parental authority for causes specified in this Code;
4. An attempt by one of the parents against the life of the other, unless there has been a
reconciliation between them.
Q. What are the grounds for disinheriting a spouse which is unique to him?
A. They are:
1. When the spouse has given cause for legal separation;
2. When the spouse has given grounds for the loss of parental authority;
CRC: There are 10 grounds for legal separation, but only 8 grounds are due to a spouse. Those which do
not arise because of the fault of the spouse should not be grounds for disinheriting. For instance,
acquiring a sexually transmissible disease through a blood transfusion need not be a ground for
disinheriting.
Allan: But sexually transmissible disease does not seem to be a ground for legal separation. It is a ground
to annul the marriage.
Q. Why is giving ground for loss of parental authority a ground to disinherit the spouse?
A. Because when the spouse does something to the child, this can be cause for hurting the feelings of the
testator.
Q. What is the effect of subsequent reconciliation?

A. A subsequent reconciliation between the offender and the offended person deprives the latter of the
right to disinherit, and renders ineffectual any disinheritance that may have been made.
Q. Is there representation in disinheritance?

A. Yes. The children and descendants of the person disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not
have the usufruct or administration of the property which constitutes the legitime.
Midterms
The very warmth of my blood seems drawn away. Gimli, on the road to Dimholt
S.Y. 2003 - 2004

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Allan Verman Ong Civil Law Review 2: The Return of the Dean 1 of 59

S.Y. 2003 - 2004

WILLS AND SUCCESSION

Dont go where I cant follow! Sam to Frodo

Q. What are the elements of succession?

1. Mode of acquiring ownership

Succession - a mode of acquiring ownership, similar to tradition

2. Transfers rights, properties and obligations

Q. What rights are transferred via succession?

Q. What is the rule on the transfer of obligations?

Q. Examples of obligations which may transfer to the heirs please.

3. Transferred by will or operation of law

Q. Is the will purely up to the wishes of the testator?

Q. How is property transferred by operation of law?

4. Death of the testator

Death completes the transfer of title; succession is always mortis causa

Q. When does a person die?

Ordinary rule: - after absence of ten years

Q. When is the person presumed dead?

My friends, you bow to no one. Aragorn kneeling before the Hobbits.

Q. What property is included in the inheritance of a person?

Q. Who are the parties in succession?

Q. What are the elements of a will?

2. The will should be made by a person

Q. What persons may make wills?

3. Formalities of the will

Q. What rules govern the formalities?

4. Control over disposition

Q. Is it necessary for the validity of a will for it to contain dispositions of property?

6. To take effect after the death of the person.

Rules on Interpretation of Wills

Q. What is the general rule on interpretation of wills?

Q. What are the types of ambiguities?

Q. What is the rule on intrinsic ambiguities?

Q. What is the rule on extrinsic ambiguities?

Q. Why exclude the oral declarations of the testator as to his intention?

Q. What are some other rules on interpretation of wills?

Q. What properties are covered by the will?

Q. What is covered by the devise or legacy of a testator?

Determining the Validity of the Will

Q. What do you look at to determine the validity of the will?

Time of reckoning Governing law

ISSUE: Whether or not foreign law governs the incidents of Lorenzos

HELD: Lorenzo became an American citizen long before his divorce

The decree of divorce between Lorenzo and Paula is valid. Thus,

Q. What does this case talk about?

HELD:The wills of the Cunanan spouses will only be effective in RP is

i. due execution of the will in accordance with foreign law

Q. What does this case talk about?

Q. Why would a will admitted to probate abroad be reprobated in RP?

Q. Joint wills are not allowed. Is joint probate allowed?

Testamentary Capacity and Intent

Q. Who may make a will?

Q. Does the testator have to be sane to execute a will?

Q. What does testamentary capacity require?

Q. Does disease affect testamentary capacity?

Q. Does drunkenness affect testamentary capacity?

Q. Does commission of a crime affect testamentary capacity?

Q. May a married woman make a will?