WILLS AND SUCCESSION

WILLS IN GENERAL
Articles 783-795

QUESTION NO. 39
What is a will?
A will is a personal, solemn, revocable, and free act by which a person disposes of his property, to take
effect after his death. (Art. 783, CC)

QUESTION NO. 40
What are the essential elements and characteristics of a will?
A will has the following essential elements and characteristics:
a. The making of a will is a statutory (not a natural) right. This is evident from the clause “permitted…
to control to a certain degree.” This means that the making of a will should be considered subordinated
to both the law and public policy.
b. The making of a will is a unilateral act. This means that no acceptance by the heirs is required while
the testator is still alive; any acceptance made prematurely is useless.
c. The making of a will is a solemn or formal act. This is so because a will must be executed in accordance
with the formalities prescribed by law.
d. There must be animus testandi or intent to dispose ,property mortis causa.
e. The testator must be capacitated to make a will.
f. The making of a will is strictly a personal act and cannot be delegated.

QUESTION NO. 41
Juan executes a handwritten document denominated as “Kasulatan sa Pag-aalis ng Mana.” The
document reads:
“Ako, si Juan Galvez, Filipino, may asawa, naninirahan sa 465-A Flores St., Ermita,
Manila, at nagtataglay ng maliwanag na pag iisip at disposisyon, ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang panganay kong anak na si Alfredo dahil siya
ay naging lapastangan sa akin at ilang beses s’yang nagsalita ng masama sa harapan ko at
kapatid niya na si Virginia na labis kong ikinasama ng loob ko.”
Alfredo, the disinherited heir, opposes the will on the basis that it does not contain any disposition of
estate and therefore does not meet the definition of a will under Article 783 of the Civil Code. He
claims that the will only shows an alleged act of disinheritance by Juan of his son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor instituted as heirs, legatees or
devisees, hence; there is preterition which would result in intestacy.
a. Is the handwritten document which contains a provision only on disinheritance of an heir a valid
will?
The document is a valid holographic will. A holographic will, under Article 810 of the Civil Code, 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. An intent to dispose mortis causa can
be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition
of the testator’s property, the disinheritance results in the disposition of the property of the testator in favor
of those who would succeed in the absence of Alfredo.
It is a fundamental principle that the intent or the will of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the supreme law in succession. Accordingly, the document,
even if captioned as Kasulatan sa Pag-aalis ng Mana, was intended by Juan to be his last testamentary act
and was executed by him in accordance with law in the form of a holographic will. Unless the will is
probated, the disinheritance of Alfredo cannot be given effect.

b. Is there preterition of compulsory heirs in the will?

No. Juan’s holographic will was his last expression to bequeath his entire estate to all his compulsory heirs,
with the sole exception of Alfredo. More important, Juan did not institute an heir to the exclusion of his
other compulsory heirs. The mere mention of the name Virginia, Juan’s daughter, did not operate to institute
her as a universal heir. Her name was included plainly as a witness to the altercation between Juan and his
son, Alfredo.
Considering that the document is Juan’s holographic will, and that the law favors testacy over intestacy, the
probate of the will cannot be dispensed with. Thus, unless the will is probated, the rights of a person to
dispose of his property may be rendered nugatory. (Seangio v. Reyes, 508 SCRA 177 [2006])

QUESTION NO. 42
Give that the making of a will is a strictly personal act, are there matters that the testator can entrust
to third persons?
Yes. After the testator has exercised his testamentary discretion, he may entrust to third persons the
following:
a. Manner of distribution of specific property or sums of money that he may leave in general to specified
classes or causes. [Example: The testator sets aside Php1 million from his estate for the benefit of
orphanages in Manila—a specified amount was given to a class or for the discovery of a vaccine to kill
a virus—a specified amount was given to a specified cause.]
b. Designation of the persons, institutions, or establishments to which property or sums of money are to be
given or applied.

QUESTION NO. 43
What law governs the extrinsic validity of a will?
In point of time, the extrinsic validity of a person’s will, whether he is a Filipino or an alien, is determined
by the law in force at the time of its execution. That the Filipino later changed his citizenship after the
execution of the will does not affect its validity.
In point of place, the extrinsic validity of a will executed by a Filipino is determined either by Philippine
law (Art. 15 and Arts. 816 and 817, Civil Code), or by the law of his domicile (Art. 816, Civil Code, by
analogy), or by the law of the place of execution of the will. (Art. 17, Civil Code)
In point of place, the extrinsic validity of a will executed by an alien is determined either by Philippine law
(Art. 15 and Arts. 816 and 817, Civil Code), or by the national law of the alien (Arts. 15, 816 and 817, Civil
Code), or by the law of his domicile (Art. 816, Civil Code), or by the law of the place of execution of the
will. (Art. 17, Civil Code)

QUESTION NO. 44
What law governs the intrinsic validity of a will?
In point of time, the intrinsic validity of a will executed by a Filipino is determined by the law in force at
the time of his death.
In point of time, the intrinsic validity of a will executed by an alien is determined by his national law. (Art.
16, Civil Code)
In point of place, the intrinsic validity of a will executed by a Filipino is determined by his national law
which is Philippine law. (Art. 16, Civil Code)
In point of place, the intrinsic validity of a will executed by an alien is determined by his national law.

QUESTION NO. 45
Joe, an American, executed a will in Baguio City. In paragraph 1 of his will, he directed his executor
to distribute his under Philippine law. Is the testamentary provision valid?
The testamentary provision is void because it is contrary to paragraph 2, Article 16 of the Civil Code which
explicitly declares that it will be the national law of the person whose succession is under consideration that
will govern. (Bellis v. Bellis, 20 SCRA 358 [1967])

QUESTION NO. 46
What is meant by renvoi?
Renvoi literally means a referring back. The problem of the renvoi arises when there is a doubt as to whether
a reference to a foreign law for decision is a reference to the internal law only of said foreign law or is a
reference to the whole of the foreign law, including its conflict rules.

QUESTION NO. 47
Homer and Winda, husband and wife, are Californians domiciled in the Philippines. Homer dies in
Baguio City, leaving properties in Pasay City. Illustrate how the renvoi doctrine operates.
Article 16, paragraph 2 of the Civil Code expressly provides that successional rights are regulated by the
national law of the person whose succession is under consideration. Since Homer was a citizen of California
when he died, the law that should govern successional rights to his estate should be the law of California.
But the second paragraph of Article 16 of the Civil Code is not clear whether a reference to California law
is a reference only to the internal law on succession of California OR is a reference to the whole of
California law, including its conflict rules.
If the reference under Article 16, paragraph 2 is a reference to the whole of California law, including its
conflicts rules, there is a possibility that the renvoi problem may arise if California law adheres to the
domiciliary theory.
QUESTION NO. 48
Peter, a Californian domiciled in the Philippines, died leaving several properties in Makati City
valued at Php50million. In his will, he gave all these properties to his brother, John. To his illegitimate
children, Arthur and Bernard, he left legacies of P1 million each. Under the internal law of
California, the testamentary dispositions are valid, while under the internal law of the Philippines,
there is an impairment of the legitimes of Arthur and Bernard. Under the conflicts rule of California,
the domiciliary principle is followed; the internal law of the Philippines (which is the decedent’s
domicile) respecting legitimes must, therefore, be applied. On the other hand, under the conflicts rule
of the Philippines, the nationality principle is followed; the internal law of California (of which the
decedent is a national) which does not recognize the system of legitime shall, therefore, be applied.
A Philippine court now sits in judgment to determine the validity of Peter’s testamentary dispositions.
How will the court rule?
In Aznar v. Christensen-Garcia, 7 SCRA 95 [1963], the Supreme Court accepted the renvoi. As applied to
the above problem, the answer is as follows: the law of the Philippines applies.
Under the second paragraph of Article 16 of the Civil Code, Peter’s national law must govern. According
to the internal law of California, the testamentary dispositions are valid, but then its conflicts rule also says
that the internal law of Peter’s domicile must govern and not the law of California. So the case is referred
back (renvoi) to the internal law of the Philippines. The Philippine court must, therefore, apply its own law
as directed in the conflict of law of California, Peter’s national law.

QUESTION NO. 49
Hilaria, a Filipina, and her American husband, Bill, executed a joint will in Arkansas when they were
still residing in that State. The law of Arkansas allows the execution of joint wills. If Bill dies, may
the joint will be admitted to probate in the Philippines?
Yes, but only insofar as Bill’s estate is concerned. While Article 819 of the Civil Code prohibits the
execution of joint wills here and abroad, such prohibition applies only to Filipino citizens. Hence, the joint
will which is valid where executed is valid in the Philippines but only with respect to Bill. Under Article
819 of the Civil Code, the joint will is void with respect to Hillria whose joint will remains void in the
Philippines despite being valid where executed.

QUESTION NO. 50
What is testamentary capacity?
Testamentary capacity is the capacity of a person to make a will. This capacity must be present when the
testator makes his will. Only natural persons can make a will.

QUESTION NO. 51
What are the essential requisites of testamentary capacity?
To make a valid will, the testator must be at least 18 years of age and of sound mind.

QUESTION NO. 52
May the wife alone execute a will?
Yes. Under the law, either spouse may execute a will without the consent of the other spouse and even
without judicial authority. Either spouse may dispose by will his or her own interest in the community
property.

QUESTION NO. 53
Why is the making of a will a formal or solemn act?
The making of a will is a formal or solemn act because the law prescribes formalities that are essential for
its validity. Accordingly, the will is void if the formalities are not followed. The purpose of the formalities
is to close the door for possible bad faith and fraud and to avoid substitution of the will and guarantee its
truth an authenticity.

QUESTION NO. 54
What are the formalities common to both notarial and holographic wills?
To be valid, a notarial and holographic will must be in writing and executed in a language or dialect known
to the testator.

QUESTION NO. 55
What are the additional formalities for the validity of a notarial will?
The law requires the following additional formalities for the validity of a notarial will:
a. Subscribed. The will must be subscribed by the testator himself or by the testator’s name written by
some other person in his presence, and by his express direction, in the presence of witnesses.
b. Attested and subscribed by witnesses. The will must be attested and subscribed by THREE or more
witnesses in his presence of the testator and of one another.
c. Testator must sign each page. The testator or the person requested by the him to write his name, must
sign the will on each page of the will, except the last, on the left margin, in the presence of witnesses.
d. Witnesses must sign the will. The witnesses must sign on each page of the will, except the last, on the
left margin, in the presence of the other witnesses and of the testator.
e. Numbering of pages. All the pages must be numbered correlatively in letters placed on the upper part
of each page.
f. Attestation clause. The will must contain an attestation clause.
g. Notarization. The will must be acknowledged before a notary public by the testator and by the
witnesses.

QUESTION NO. 56
Is there a need to state in the attestation clause of a notarial will that the person authorized by the
testator to sign on his behalf did so in the presence of the testator?
No. A statement in the attestation clause of a notarial will that the person authorized by the testator to sign
on his behalf did so in the presence of the testator is not essential for the validity of the will. It is enough
that it be proved in court that this was what happened.
QUESTION NO. 57
The attestation clause of a will reads: “x x x and he (the testator) signed at the bottom of the will in
our presence and we at his request did the same in his presence and in that of each other as witnesses
to the will, and lastly, the testator, as well as we, as witnesses, signed in the same manner on the left
margin of each sheet.” Is the attestation clause sufficient?
The attestation clause is sufficient because the words “in the same manner” mean nothing but that the
testator and the witnesses signed on the left margin of each sheet of the will “in the same manner” in which
they signed at the bottom thereof, that is, the testator in the presence of the witnesses and the latter in the
presence of the testator and of each other (Fernandez v. Vergel de Dios 46 Phil. 922 [1936)

QUESTION NO. 58
The law requires that the witnesses must sign on each page of the will, except the last, on the left
margin, in the presence of the other witnesses and of the testator. What is the meaning of the clause
“signed in the presence of?”
“Signed in the presence of” does not mean that the testator and the instrumental witnesses actually saw each
other sign. The true test is whether they might have seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with respect to each other at the moment of
inscription of each signature. (Nera v. Rimando, 18 Phil. 450)

QUESTION NO. 59
Juan executed a will in Filipino consisting of two pages. The first page contains the disposition of his
estate, while the second page contains the attestation clause as follows:

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinapahayag sa amin ni Juan dela Cruz, tagapagpamana, na siya nyang Huling Habilin,
ngayong Ika-10 ng Mayo 2010, ay nilagdaan ng nasabing tagapagpamana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagpamana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatang ito.

The validity of the will is assailed on the ground that the attestation clause does not contain the
number of pages on which the will is written. Is the defect fatal?
Yes. The law declares that one of the essential facts which must be stated in the attestation clause is the
number of pages upon which the will is written. The omission of this fact goes into the very essence of the
attestation clause itself; in other words, the defect is substantial or essential.
It is, of course, true that Art. 809 of the Civil Code provides that “in the absence of bad faith, forgery, or
fraud, or undue or improper pressure or influence, defects or imperfections in the form of attestation or in
the language used therein will not render the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all of the requirements of Art. 805.” But it is clear from the
language of the article itself that this rule, which is sometimes known as the “doctrine of liberal
interpretation,” is applicable only to two kinds of defects of attestation clauses – first, defects and
imperfections in the form of the attestation; and second, defects and imperfections in the language used
therein. It is evident that the defect or imperfection of the attestation clause of the will of Juan is neither a
defect in the form nor in the language used therein. Consequently, the defect is fatal to the validity of the
will.

QUESTION NO. 60
Article 805 of the Civil Code specifically provides that the attestation clause is a requirement separate
from the subscription of the will and the affixing of signatures on the left-hand margins of the pages
of the will. Distinguish one from the other.
Article 805 of the Civil Code particularly segregates the requirement that the instrumental witnesses sign
each page of the will from the requisite that the will be attested and subscribed by the instrumental
witnesses. The respective intents behind these two classes of signatures are distinct from each other. The
signatures on the left hand corner of every page signify, among others, that the witnesses are aware that the
page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from
the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause,
such signatures cannot demonstrate these witnesses’ undertaking in the clause, since the signatures that do
appear on the page were directed towards a wholly different avowal.

QUESTION NO. 61
Who is required to sign the attestation clause?
Under Article 805 of the Civil Code, it is the witnesses, and not the testator, who are required to state the
number of pages used upon which the will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause. (Aluad v. Aluad, G.R. No. 176943. October 17, 2008)

QUESTION NO. 62
Is it necessary that the notary public be present when the testator executes his will?
There is no requirement under the law that the notary public be present at the execution of the will; his
presence is required only for the acknowledgment.

QUESTION NO. 63
Is the notary public required to read the will, or to know its contents, before he notarizes it?
The notary public is not required, not even allowed, to read the will or to know the contents thereof, unless
the testator permits him to do so. The only instance when the notarty public is required to read the will is
in the case contemplated by Article 808 of the Civil Code -- regarding a blind testator.

QUESTION NO. 64
May the notary public be an instrumental witness in a will?
w
No. The notary public before whom the will is acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having witnessed and signed the will. If the third
witness were the notary public himself, he would have to acknowledge his having signed the will in front
of himself. This cannot be done because he cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the making of the will. Furthermore, the function of
the notary public is, among others, to guard against illegal or immoral arrangements. This function would
be defeated if the notary public is one of the instrumental witness. (Cruz v. Villasenor, 54 SCRA 31 [1973])

QUESTION NO. 65
The attestation clause signed by the three witnesses in the will of T states: ”We, the undersigned
attesting witnesses whose residences appear on the opposite of our respective names, do hereby certify
that the Testament was read by him and the testator, T; has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in
the letters on the upper part of each page, as his Last Will and Testament and he has the same and
every page thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.” Does the attestation clause
comply with the requirements of the law?
No. The attestation clause violates the express requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses because it fails to specifically state the fact that the testator signed the
will and all its pages in the presence of the instrumental witnesses and the witnesses likewise signed the
will and every page thereof in the presence of the testator and of each other. Specifically, it suffers from a
fatal defect that it lacks ”the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another.” (Caneda, et al. v. CA, GR. No. 103554, May 28, 1993)

QUESTION NO. 66
Thinking of her mortality, Clara drafted a will and asked Roberta, Hannah, Luisa, and Benjamin to
be her witnesses. On the day of the signing of the will, Clara fell from the stairs and broke her arms.
Coming from the hospital, Clara insisted on signing her will by thumb mark and said that she can
sign her full name later. While the will was being signed, Roberta experienced a stomachache and
kept going to the comfort room for long periods. Hannah, while waiting for her turn to sign the will,
was reading a Harry Potter book on the couch, beside the table on which everyone was signing.
Benjamin, aside from witnessing the will, also offered to notarize it. A week after, Clara was run over
by a drunk driver while crossing the street. May Clara’s will be admitted to probate?
No. It is an indispensable requirement that the testator and at least three witnesses must all sign in each
other’s presence. Here, Clara and the witnesses did not sign in the presence of Roberta because she was
always in the comfort room. Roberta could not have seen the signing while inside the comfort room.
Therefore, only two witnesses signed the will in the presence of Clara.
Second, a notary public before whom the will was acknowledged cannot be considered as an instrumental
witness because he cannot acknowledge before himself his having signed the will. Therefore, Benjamin,
the notary public, could not have been counted as a witness.
In addition, it appears that Clara did not intend her thumb mark as her signature because she said that
she”can sign her full name later.” In short, her intent is to affix her signature later. Therefore, Clara’s
signature in the will is absent.
QUESTION NO. 67
Ona his deathbed, Vicente was executing a will in the room where Carissa, Carmelo, Cornelio and
Atty. Abe, a notary public, were present. Suddenly, a street brawl caught Carmelo’s attention
prompting him to look out the window. Carmelo did not see Vicente sign the will. Is the will valid?
Yes. Article 805 of the New Civil Code provides that the testator must sign in the presence of the witnesses.
Under existing jurisprudence the true test of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether they might have seen each other sign,
had they chosen to do so, considering their mental and physical condition and position with relation to each
other at the moment of inscription of each signature does not require a witness to actually see the testator
sign the will. It is sufficient if the witness could have seen the act of signing had he chosen to do so by
casting his eyes to the proper direction. Here, Carmelo was not actually looking at the signing of the will
by Vicente, but he might have seen it had he wanted to.

QUESTION NO. 68
Who may witness the execution of a will?
For a person to qualify as a witness to a notarial will, the witness:
a. must be at least 18 years of age;
b. must be of sound mind;
c. must be able to read and write;
d. must not be blind, deaf or dumb;
e. must be domiciled in the Philippines;
f. must not have not been convicted of falsification of a document, perjury, or false testimony.

[NOTE: It is not necessary to establish in the probate court that the witnesses are of good standing in the
community, or possess reputation for trustworthiness or honesty, because these attributes are presumed.
The above requirements re not continuing requirements. They must only be competent at the time of
attesting and need not be so thereafter.]
[NOTE: A person who is qualified to execute a will is not necessarily qualified to be a witness. For instance,
even a blind or deaf mute person can be a testator but cannot be a witness. The notary public before whom
the will was acknowledged cannot be counted as one of the witness; he is disqualified. The notary public
cannot acknowledge before himself his having signed the will. However, the lawyer who prepared the will
(who is not the notary) can be a witness.]

[NOTE:] Unless there are other sufficient number of competent witnesses, any legacy or device is void if
given to: (1) the witness, or (2) the spouse of a witness, (3) the parent of a witness, or (4) the child of a
witness, or (5) any person claiming from the same persons. The witness is qualified but the gift is void.

QUESTION NO. 69
What are the additional special formal requirements for holographic wills?
(1) The will must be entirely written by the hand of the testator;
(2) The will must be entirely dated by the hand of the testator; and
(3) The will must be entirely signed by the hand of the testator.
QUESTION NO. 70
In the execution of a holographic will, may the mechanical act of drafting the will be left to
someone other than the testator?
Yes. The mechanical act of drafting a holographic will may be left to someone other than the testator, as
long as the testator himself copies the draft in his own handwriting, dates it, and signs it.

QUESTION NO. 71
How many witnesses are necessary for the probate of a holographic will?
In the probate of a holographic will, it is 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 are required. In the absence of any competent
witness referred to in the preceding paragraph, expert testimony may be resorted to. (Art. 811, Civil Code)

QUESTION NO. 72
If a holographic will is contested, is the requirement under Article 811 of the Civil Code that at least
three witnesses explicitly declare that the signature in the will is the genuine signature of the testator
mandatory or permissive?
The requirement is mandatory because of the use of the word “shall” in Article 811 of the Civil Code. Laws
are enacted to achieve the intended goal and to guide against an evil or mischief that it aims to prevent. In
the instant problem, the goal to achieve is to give effect to the wishes of the testator and the evil to be
prevented is the possibility that unscrupulous individuals will employ means to defeat the wishes of the
testator. (Codoy v. Calugay, 312 SCRA 333 [1999])

QUESTION NO. 73
The probate of a will is opposed on the ground that the testator was, at the time of the execution of
the will, extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent
attacks of asthma; that he was too sick to rise unaided from his bed; that the needed assistance even
to raise himself to a sitting position; and that during the paroxysms of asthma he could not speak.
Given these physical conditions of the testator, should his will be admitted to probate?
Yes. The physical weakness of the testator in no way establishes his mental incapacity or lack of
testamentary capacity. Testamentary capacity is the capacity to comprehend the nature of the transaction in
which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who
would naturally be supposed to have claims upon the testator.

QUESTION NO. 74
What are joint wills? Are they valid in the Philippines?
Joint wills are those which contain in one instrument the will of two or more persons jointly signed by them.
They are void under Article 818 of the Civil Code. Moreover, joint wills executed by Filipinos in a foreign
country shall not be valid in the Philippines, even though authorized by the laws of the country where they
may have been executed. (Art. 819, Civil Code)
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