Professor: Atty. Carla Santamaria-Sea

Transcribers:

Marc Roby de Chavez (MARX)Mon Cristhoper Pasia (MON) Ruth Anne Datay (RUTH) Socrates Benjie Marbil (SOC) April Gerero (APRIL)

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH

WILLS1Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.

Patrimony- the totality of the property, rights and obligation of a person who is still alive. What happens in the patrimony if this person dies? It may or may not be diminish. But in all likely, it would diminish, why? What is the effect of death upon patrimony? Because some of the rights and obligations may be extinguished by death. We look at death as some kind of a filter, so when death takes place, there will be transmission, but not all rights and obligations will survive death, some of them will be extinguished. After death had intervene, how do we now refer to the property rights and obligations which have survive death? With respect to the heirs, it shall be known as inheritance; With respect to the other persons of the rest of the world, it shall be known as estate. How do we classify the estate? Is this a person or is this just the totality of the properties, rights and obligations? It is both, because essentially it is the inheritance (the properties, rights and obligations which have survived death) but for a limited purpose afforded the estate some kind of a legal personality, it is considered to be juridical person. Why does the law afford the estate this legal personality? It is to enable to settle the pending affairs of the decedent, pending affairs may include the enforcement of right belonging to the decedent or settling obligations owed by the decedent to third persons. Depersonalization? It is the patrimony which was eventually liable or answerable for the obligations of the person who contracted the obligation. If we invoked relativity of contracts, we are limited to heirs and the assigns. heirs and the assigns will only be liable to the extent of they receive, there will be no personal liability vesting upon them. Depersonalization was related to Obligations and contracts. What is depersonalization of obligation? It means that in the end every obligations will have to be satisfied against the property of the debtor, every obligation. Note, if you have an obligation, what is the remedy of the creditor against the debtor if it does not want to perform it voluntarily?1

What is succession? Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law The phrase to the extent of the value of the inheritance to which does that apply? Obligations Why obligations only? The rationale of the phrase? For protection of the heirs What is estate? The totality of all the properties, rights and obligations left behind the deceased. What is patrimony? An inherited estate; property inherited from the paternal side What is liquidate? To settle a debt or an obligation in the form of money The heirs continue the personality of the deceased Must there always be someone dying before succession takes place? No, Succession is not confined to that which takes place upon the death of a person. Succession can be understood in 2 senses: General Sense: the transmission of rights and properties from one person to another. Technical Sense: denotes the transfer of title to property under the laws of descent and distribution, taking place as it does, only on the death of a person. WILLS2 A person during his lifetime would acquire rights, properties and obligations, the totality of his properties would be his PATRIMONY

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH To bring an action for specific performance. If the debtor does not want to perform it personally and it was performed by other persons then the liability will be converted to reimbursing the creditor for the expenses of letting another person to perform that which the debtor should have done. And the debtor should pay? Reimbursement from the debtors property. If the obligation cannot be performed by the debtor himself the remedy is damages, which again will be satisfy to the debtors property. In that preferably, but if the debtor does not have cash, the court issues writ or levy to attach the debtors properties, the properties will be sold and the proceeds will be used to satisfy the obligation. All of this showing that every obligation is satisfied against your property. Depersonalization, patrimony to patrimony, the debtor does not want to perform, it cannot be perform, it can no longer be perform, the creditor will ask for damages and such damages will be satisfied against the debtors property. That principle (depersonalization) support the existence of the estate. In other words, the debtor himself does not have to be alive to be able to satisfy an outstanding obligation, the debtor becomes a dispensable party. Even the debtor is dead, the creditors has a recourse against whatever property the debtor leave behind thru the person created by law, the estate as a legal personality. Why do we need that concept of patrimony to patrimony? To protect the creditor and to create confidence in transactions. Absence of such concept there will be no or limited transactions. No one will have the confidence to create transactions. Succession vs Inheritance Succession is the mode by which the inheritance is transmitted while inheritance is the properties, rights and properties which survive death. How do we treat the corpse of the decedent would that be property? The corpse is not a property to be inherited Who has a better right the spouse or the mother of the decedent? Spouse, because the corpse is a not a property to be inherited What right is afforded or acknowledge to the spouse? The spouse has a limited right on how, where, when the will be buried What is the basis of saying that the spouse has the primary right? The law on obligation to give support Spouses Legitimate ascendants and descendants Parents and their legitimate and illegitimate children of the latter Parents and their illegitimate and illegitimate children of the latter Legitimate brothers and sisters, whether full or half-blood How will we determine if a property, right or obligation will survive death? When we say that rights are personal that will not be extinguished by death, what do we mean by personal right? 2 senses that which personal right is understood Personal right in its general sense inherent to the person Personal right in its contractual sense - right which survives death Personal right vs real right Personal right- enforceable against a specific of definite person Real right- enforceable against the whole world A personal right may or may not be extinguished by death because our basis that a right is so personal that it is extinguished by death would be the nature of that right as inhering to that person. So it is possible that we have a personal right in its contractual sense which will survive death. E.g. The right of the seller to collect from the buyer, it passes to the estate. Such right is a personal in a contractual sense because he can only enforce such right as against to the other party to the contract to sell who is the buyer. He cant enforce to any other person, in that sense it is personal. But is it personal in its generic sense? is it something which is inhered to the person of the decedent? NO, it is not personal in nature in its general sense. So rights which will be extinguished by death are that rights which are inherent to the decedent. Personal right in its contractual sense, they are not necessarily extinguished by death. e.g. of personal right contractually and personal right by nature Right of consortium in the marriage Are patrimonial rights be extinguished by death? Generally transmissible2

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What are patrimonial rights? Right which are related to the property e.g. of a patrimonial right which survives death Right of ownership which passes on from the decedent to his heirs Exceptions, when will patrimonial rights be extinguished by death? By stipulation of parties By provision of law e.g. of patrimonial right extinguished by death because of a provision of law Right of usufruct Why is it extinguished by death? Because the law so provides, it is extinguished upon the death of either parties Parties in a contract of Usufruct Naked owner and Usufructuary Are the rights of obligations transmissible? Yes What are the rights of obligation? The rights of the creditor and the corresponding obligation of the debtor. Obligations of the debtor are transmissible except those which are: Depending on the nature of the obligation (purely personal) intransmissible by express provision of law stipulation of parties. ESTATE OF HEMADY VS LUZON SURETY Relativity of contracts- binds only the parties, heirs and assigns. Contracts are generally transmissible, it is binding in the heirs. But the law provides exceptions to general transmissibility Express stipulation of the parties Express provision of law Depending on the nature of the obligation The Supreme Court applied this conditions, is the obligation of a guarantor one which is extinguished upon death by express provision of law? The SC said that there is nothing in the law which says that it will be extinguished by death. But what about the argument that death makes a person loose his integrity when it is a requirement for a guarantor, how will that affect the existence of the contract3

after death? The SC pointed put that this right to require the qualification can be waived by the creditor, should the guarantor lose all the qualification after the guaranty is constituted the creditor is given the right to ask for a replacement if he wants to. It is not also express in the stipulation of parties, the contract is silent about it The nature of the obligation, it is not purely personal because if we treat the contract of guaranty in its barest form it is just an obligation to pay a sum of money, to pay when the debtor cannot pay. ALVAREZ VS IAC The heirs contend that the liability arising from the sale made by their father to Siason should be the sole liability of deceased/of his estate, after his death. The Supreme Court held that the heirs cant escape the legal consequences of their fathers transactions, which gave rise to the claim for damages by the Yaneses. That said heirs didnt inherit the property involved is of no moment because, by legal fiction, the monetary equivalent thereof devolved into the mass of their fathers hereditary estate. And the hereditary assets are always liable in their totality for the payment of the debts of the estate, the heirs however, are liable only to the extent of the value of the inheritance WILLS3 SANTOS VS. LUMBAO Facts: Heir- children of Maria who are the original owner of the land and then pending the settlement of Marias estate. Rita, one of the co-heirs decided to enter into an agreement with the spouses lumbao pertaining to the inchoate right in marias estate. Now apparently the document bilihan ng lupa was witness by two of Ritas own children. However after Ritas death they no longer wanted to honor the document or the sale; and what were they saying? Their saying that they were not bound of the document or sale entered into by Rita, they did not want to give up the property anymore contracted by Rita. Ruling: The heirs are bound to the actions by their predecessor and must honor the contract because Property, rights and obligations are passed on to the heirs, also because the transaction affects the property. The

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH inheritance will be subject to whatever transaction affects such property. In this case the transaction is the deed of sale. NHA VS ALMEIDA Facts: Margarita had an option to buy the property because of the contract to sell that she entered into with the NHA. During her lifetime Margarita executed `a document, which was denominated as sinumpaang salaysay, it was witnessed by two people in that sinumpaang salaysay. In that sinumpaang salaysay kapag akoy pumanaw n at naayos n ang aking mga karapatan ay kilalanin ang kanyang anak na si Francisca They (heirs of Beatrice) also have a share to the inheritance, because their mother predeceased their grandmother so they become also the co-heirs of margarita. It is not therefore correct for francisca to declare to the court that she was the only heir left by margarita--- this is the purpose of self adjudication. Remember in the beginning that was the clash. That was the theory of franciscaI am the sole heir therefore the right goes to me--- pero magkakaroon n sila ng problema dahil hinahabol din ng ibang coheirs. So what does she do? Using the same document she devise a new theory, she was no longer claiming as an heir. This time around she was claiming as an assignee. The sinumpaang salaysay is actually an assignment of right made by margarita in my favor. That was now the new theory. And it was a brilliant theory. Why? Because it removes the sinumpaang salaysay from the law on succession and at the same time it renders irrelevant the actual use of self adjudication. Now the NHA can actually now decide without considering the affidavit of self adjudication. Which if have been allowed by the court and just focus on whether or not there was a valid assignment of right between Margarita and Francisca--- that was their theory. And on that premise the NHA granted the petition of francisca.4

Here again caught the heir of Beatrice to go to court and question the grant and this time around what did the S.C say? The S.C. say that it did not constitute a deed of assignment. Why not? By the very wording of the Sinumpaang salaysay. What does it mean? It means that the transfer be effective, when? At the time of her death. So, what could be a better explanation or justification that it was a transfer mortis causa, strictly pwedeng assignment yan coz you can always have an assignment during, what? During the lifetime of the transferor. And what more when did margarita died? She died in 1971; and when did the NHA grant the right to Francisca? It was in 1986. That is why the S.C said to admonish the NHA, you should have known that at the time you granted the right to francisca the other heir of margarita had already a vested right on the interest of margarita under the contract to sell, because they gave the grant after her death and succession to her estate has already open, you could have not ignore that, you should have not granted the right to margarita. For the purposes of discussion, with that ruling of the S.C, that the other heir of Margarita had a estate in the contract to sell, does it necessarily mean all is lost for francisca? That she could no longer claim the right to the property as to be her own-there is a possibility that she may acquire the property solely and exclusively--- how? Remember the sinumpaang salaysay? S.C only rejected it as a deed of assignment but it does not rule upon the validity as a last will and testament.--- bahala n yung probate court dian kung yan ay valid as a last will and testament. If that sinumpaang salaysay is obtained as a last will and testament, then it would be possible for francisca that she would be declare as the sole owner or sole holder of the interest in the contract to sell by virtue of the sinumpaang salaysay, that is if it would be validated as a last will and testament.

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTHArticle 777. The rights to the succession are transmitted from the moment of the death of the decedent.

How is it possible? Mixed succession. What is mixed succession? How does the law define mixed succession? Mixed succession is that effected partly by will and partly by operation of law. article 777it implies that death is the only requisite for succession to happen, that is not correct, death is not sufficient, because aside from the death of the decedent it further requires that there should be a basis for succession, either by the compliance of the last will and testament or provisions in the law, but remember class in our jurisdiction testamentary succession is given preference over the intestate succession, that is why you only refer to the provision in the law in the absence of or in the sufficiency of the last will and testament that left behind by the testator. But even if you have death, if you have a last will and testament or even in the provision of the law would be applicable, this would not be enough for succession to take place. What else must happen? There should be an acceptance. Why should there be an acceptance? What is the rationale of the law for requiring an acceptance? Because no one can be forced to accept the liberality of another.. in an abstract level it would seems to be unthinkable that anyone would not want to be left with something gratuitously. But if you would consider certain facts or certain circumstances there maybe more than ankle justification for the purpose of refuse. Example: if the X boyfriend of your wife would leave a last will and testament giving her momento of their relationship before would you be happy if your wife accept the inheritanceyour wife would be hesitant to accept the inheritance. The law recognizes her right to refuse. If you dont want to accept the liberality you can actually decline, there would be no succession taking place. So tatlo yun there should be death, basis of succession and acceptance. When we speak of death, what kind of death that the law contemplates? Either actual or presumptive death. Actual death- failure to inhale oxygen, physical death, actual death, clinical death. Presumptive death- when the person is missing for the period of 7 yrs he is presumed to be death, but for the5

Article 777the right of succession are transmitted from the moment of death of the testator--- what does that mean? Illustration: Decedent: Pedro ; died at 4pm Heirs: Mark, Lucas and Juan Supposing that the filiation of lucas, mark and Juan are not that are not establish at the time that Pedro died that the court litigation lasted for around 15yrs to establish their filiation. So 15 years after the death of pedro a lot of things had happened, his business has grown and his estate has doubled in value, so how much mark, Lukas and juan are entitled to get? So what value do we use? The value at the time when pedro died or the value 15yrs after? 15yrs after, because they become the owners at the time of Pedros death. Even if the filiation was proved after 15 years, it will retroact at the time when the decedent died. They are owners as of 4pm, at the precise moment when the decedent died With regard to the fruits, what will be the basis of their right? To the fruits, to the increase of the property by the estate of pedro--- is it also by virtue of their right to succeed which was deemed vested at the time of pedros death? So as of 4pm at the day of Pedros death any acquisition that they made in the form of fruit or an income of the property would vest in them by virtue of Ownership no longer as the right of succession. When we speak of decedent we refer to whom? Who is the decedent? The person who has died. Is it different from the testator? So the testator is also the decedent only he left better prepared because he left a last will and testament. And what do you call the people who stands to inherit from the decedent? The heirs, And the heirs, the basis of their right to inherit would be? Is it enough the heirs have right? Either provided by the will or provided by the provisions of the law. And in the absence of the will they have to rely on what is provided by the law. Is it possible that they rely both on the provisions of the will and the provisions of the law? Its possible.

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH purposes of succession 10 years from disappearance but if he disappears in the age of 75- absence of 5yrs will be sufficient. So what is the basis for declaration of presumptive death? His disappearance but not just ordinary disappearance it should be continuous disappearance that is the basis of the law. Disappearance must be continuous and unbroken. 10 yrs as a general rule but by way of exception if the person disappeared after the age of 75, 5 yrs. Why do we have that exception? Because the law makes a presumption that the person is weak before he disappears. When do we consider or deemed that death has taken place in case of presumptive death? It is at the end of 10 yrs or five year period. Now this period set forth, would there be any further qualification to the rule relating to them? Do we always observe to the 10yr or 5 yr period? No. Why? There are circumstances that the 10yr and 5yr period are not observed when the person who disappear is in danger of death. In that case what period do we follow? 4 yrs. So what are these circumstances that would justify shortening the period? Vessel or aircraft lost during its voyage; during war when the person missing is a member of the armed forces and he actually participated in the war; and in other cases when there is a danger of death Disappearance under the danger of deaththere is uncertainty whether the person survive, this is the essence of the provision, that is why you are to presume that he died. Example: the 9/11 incident if the person was inside the twin tower before the incident happen and after that he could no longer be located, then he is presumably disappear under the circumstances grave danger to his life, and if he could no longer be located, his body could no longer be located then we are justified to presume that he died in the attack.6

Now suppose that we have these circumstances, there is a disappearance for 10 or 5 yrs or a special disappearance for 4yrs, what are you suppose to do to be able to invoke presumptive death? Are you suppose to go to court and ask it to declare that the person disappearing, as presumptive death? No need to go to court, the court will not entertain such claim, for the reason that any declaration of presumptive death never attain finality, it can always over turn or negated by the suddenly appearance of the person who has been declared dead. so what do you do? You just simply file an action for the settlement of his estate and invoke in that proceeding that he has been absent for this long justifying the opening of his succession, but to bring a separate or independent action for that purpose alone, youll not be entertain by the court. Can the disappearance occasioned by special circumstances under art. 391, when is a person deemed to have died? at the time of the disappearance. USON VS DEL ROSARIO Facts: Faustino is married to maria uson but he also have a sideline he had an affair to maria del rosario in whom he had 4 childrenthis shows how aggressive a mistress can bewe have the legal wife on the other and a mistress on the other hand, and yet after the death of the husband, what did the mistress do? She was the one who aggressively took over the land left by the husband although she is a mistress, although matalino din si Faustino kasi pareho ng pangalan ang kinuha niang asawa at kabit, db? Kaya siguro ngkaroon sila ng anak ni maria del rosario dahil he took a wife before it was discovered by maria uson. Faustino died before the effectivity of the civil code. Under the old civil code illegitimate children dont have a successional right what was the basis of maria del rosario in claiming the land? Her basis was the provision of the new civil code giving right to succession to illegitimate children , the civil code took effect 1950, Faustino died in 1946. What was in the new civil code for it to apply retroactively? Vested right, this is the goal of her contention lies, there was a provision an ante___ provisions in the new civil code which says that all new rights created

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH thereunder will be given a retro active effect even to those situation which arose under the old civil code, but subject to one very important condition that no vested right are impaired. Were there already vested rights if the successional rights were transferred to the illegitimate children of Faustino. And what did the court say? The right of the wife would be impaired to succeed to the estate of the husband was already vested, when? At the moment of his death, because his death precisely open succession. So when he died rights are already transferred to maria uson, they were vested in her, that is why the right given to the legitimate children could not be given retro active effect because to do so would mean a reduction of the right of maria uson which was already vested. It is provided in Art. 2253 that the new rights recognized by the New Civil Code in favor of illegitimate children have retroactive effect only when they dont prejudice any vested right of the same origin. From the moment of decedents death, the rights of inheritance of his wife over the parcels of land became vested. Hence, the new rights recognized by NCC in favor on the illegitimate children of decedent cant be asserted to the impairment of the vested right of a person. DE BORJA VS VDA. DE BORJA Facts: There are two proceedings, one in rizal and one in nueva ecija. The one in rizal was the settlement of the estate of Francisco, the one in nueva ecija was the probate of the will of josefa, the relationship of the stepson and step-mom was getting tumultuous by the moment. so they entered into a compromise agreement, in that agreement, tasiana was waiving all her rights that she has to the estate of both josefa and Francisco for the sum of 800,000. Jose, the step son submitted the compromise agreement both the cfi of rizal and the cfi of nueva ecija. The cfi of rizal approved the compromise agreement, the cfi of nueva ecija denied. So appeal was taken by both tasiana and jose from the rulings of the lower court. But tasiana technically had a7

change of heart, she no longer wanted to continue the compromise agreement perhaps she was thinking that she was getting the mortem of the deed. Siguro naisip nia masmarami p xiang makukuha kung itutuloy na lang nia yung laban instead of compromising but there was a compromise agreement so it was a valid agreement. So what does she do? She invoke the case of guevarra vs. guevarra, she was assailing the validity of the compromise agreement on the ground that it was according to her invalid because it amounted to the partition of the decedent prior to the probate of the will. Sabi ni taciana hindi yan pepwede Ruling: but the court said no the ruling in guevarra is not even applicable because this is not a partition of the estate, what you simply did was to sell your inchoate right it was a waiver of whatever inheritance you are entitled to both estate, but was that valid? Can she do that? Yes, because at the time of death of the decedents both josefa and Francisco she was already entitled to the inheritance. But there is a difference between being entitled and being in actual possession of the inheritance. Actual possession can take place after the passage considerable time, but after the moment of death you are already an heir you are already entitled to the inheritance regardless of when you will going to be in actual possession of the inheritance. It maybe 1yr after, it maybe 10yrs after it doesnt matter. the law recognizes your right at the moment of death. Now what can you do at that time when you only have this right in the out-clock, kasi nga wala p sayo yung inheritance ano naman ang silbi non, may mana nga ako wala naman sakin ang mana ko, You can actually exercise right of ownership to your right and one act of ownership will be what? The right to dispose and this is what exactly what tasiana did, she disposes her right to the inheritance, can she do that? Absolutely, because she is the owner of that right and does she do it? Yes she did through the compromise agreement. The compromise agreement is valid and binding upon tasiana. What actually can comprise your

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH inheritance at the end? After the settlement proceedings are completed might may not be the same as what she thought her value of her inheritance at the time of the testators death. Kunyare at the time of death the value is 500,000, pero you must know during the settlement proceeding, there will be inventory and satisfaction of the obligation of the decedent. mas madaming obligasyon mas maliit ang matitirang net estate. mas maliit ang net estate mas maliit ang paghahatihatian. So it is possible that the value of the inheritance given at the time of death, may actually be reduce after the obligation of the estate has been satisfied. What is the significance of that possibility? It simply means that the transferee, the one who creates the transferor in this case tasiana, the money for the waiver, the money for the right, actually stance at risk, he may receive less than what he paid for kasi nga pwedeng magbago yung value after the settlement of the estate. To summarize Whatever transmissible rights sold or acquired by a person will be subject of the outcome of the settlement proceeding. Possible b n matapus kuing bilhin yung part ni taciana e wala pa akong makuha sa huli? Yes, that possible, if the obligation of the estate are far more than the property, so ano mangyayari sa binayaran q kay tasiana? Deemed lost, I cannot recover The compromise agreement is valid, since a hereditary share in a decedent estate is vested immediately from the moment of the death of the decedent, although the Compromise Agreement has been entered into pending probate of the husbands will. nd The 2 wife already had an interest in the hereditary estate, though not yet determined. The effect of such alienation, though, is to be deemed limited to what is ultimately adjudicated to the vendor heir. BONILLA VS BARCENA Since the decedent was still alive when the case to quiet a title was filed, the court should therefore, had acquired jurisdiction over the person. Upon such death, her heirs had become the absolute owners of her property, subject to the rights and obligations of8

the decedent. Hence, her heirs should be allowed to be substituted as parties in interest for the decedent. WILLS4Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real or personal property are respectively given by virtue of will.

Is their a distinction between an heir and legatee/devisee? Yes Distinguished heir is a person called to the succession either by the provision of a will or by operation of law Devisees and legatees are persons to whom gifts of real or personal property are respectively given by virtue of will Does the law make a distinction? no Why is it necessary to make a distinction, when the law itself does not? The distinction between an heir and devisees and legatees would appear to be significant with regard to one specific instance which is Preterition. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of an heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation (art.854) What is effect of preterition? annulling the institution of an heir How is preterition be relevant? If you are an heir and if there is Preterition your institution as an heir will be annulled, which means that you will not receive under the will. Example: It was stated in the will that the sole heir will be Mr. A but he is not related to the testator and it is proven that there is Preterition, so instead of being the sole heir and receiving the testators entire estate, he will end up receiving nothing. Ganun katindi and effect the Preterition. But if the testator instituted Mr. A not as an heir but a devisee or legatee, even there is Preterition and the institution of an heir is annulled,

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH the devise or legacy in Mr. As favor will still be respected. Thats why it is important to determine in what capacity the person is receiving. The law does not help us in relation to that one because there is an overlapping distinction between an heir and devisees and legatees. The definition of heir is broad enough to include the definition of devisees and legatees as defined in Art. 782. So the conclusion is a devisee or legatee is also an heir, so where do you draw the line? The authorities are one in saying that the better definition would be an HEIR is a person given the entire estate or a portion of estate, on the other hand a devisees and legatees would succeed to the testators personal or real property. The problem is if the estate is comprised of one single property. How would you treat the person who will receive the entire estate and there is Preterition? Example: I institute Ms. Cruz as my heir, then malalaman ninyo that my only property is house and lot. The testator omitted his children in the will. So what happens now? If you treat her as an heir, she will not receive anything because her institution as such will be completely annulled, but if you treat as devisee she will still receive at least of the property because, the legitime of the children comprises half of the estate. Because of the device and legacy, you only have to reduce insofar as it does not impair the legitime. Hence, even there is Preterition and the institution of the heir is annulled, the devise and legacy will be respected provided that the legitimes are not impaired. So how will we treat her? Go by the tenor of the institution. If her institution is to receive the entire estate and not to a specific property, we will treat her as heir, dahil isa lang yung property sa estate. It was the intention of the testator and because of Preteretion, she will not receive anything. But if the disposition pertains to the testators house and lot, she will be treated as a devisee. In this case there will be impairment of the devise to the extent of in order not to impair the legitime of the children but the devise will be respected.9

Different kind of succession: Testamentary based on last will and testament Intestate by operation of law; in the absence of last will and testament, and when there no valid last will and testament as when he does not dispose of all his properties Mixed Art. 780. It is effected partly by will or operation of law. Contractual - donations propter nuptias of future property, made by one of the future spouses to the other to take effect after death and to be done in the marriage settlement which is governed by Statute of Frauds. Compulsory Testamentary SuccessionArticle 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law.

Intestate SuccessionArticle 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Mixed SuccessionArticle 780. Mixed succession is that effected partly by will and partly by operation of law.

Compulsory Succession Compulsory - also by operation of law; succession to the legitime, takes place DESPITE the presence of a valid will and applies both in testate and intestate succession; it is compulsory succession because the compulsion lies upon the decedent who has no choice but to leave a certain portion of his property to certain heirs who are specified in the law. The compulsory heirs will also make up the intestate heirs because the compulsory heir is necessarily the testators nearest relatives. Kaya may confusion between intestate heirs and compulsory heirs. NOTE: The right of intestate heir to succeed may be defeated by simply executing the last will and testament but the right of compulsory heir cannot

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH be defeated even upon the execution of a last will and testament. Who are to be considered as compulsory heirs under the law? The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants with respect to their legitimate parents and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other legitimate children referred to in article 287. (Art.887) Legitime is that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (Art.886) In case of illegitimate children, apply first the Iron Curtain Rule then qualify Compulsory Succession (illustration) Mr. Francisco instituted Mr. X as his sole heir. When he died he was survived by his wife, one legitimate child and four illegitimate children. Mr. X argues that he is the sole heir. How much will he receive? The surviving spouse will get 1/4, the legitimate child will get his legitime and the illegitimate children will receive of the share of legitimate child which is 1/4 hence Mr. X will not receive anything because of compulsory succession. Compulsory Succession takes precedence over testate and intestate succession. If you have Compulsory Heir you can only control the decedent ___ portion of the estate which is known as the free portion it depends on the number and type of Compulsory Heir. Testate succession takes precedence over intestate, why? because it is expresses the desires and wishes of the testator while the latter contains only the presumed will of the testator. Contractual Succession That which takes place when the future spouses donate each other in their marriage settlement future property in the event of death Why is it contractual? Because such disposition is made in a marriage settlement Why is it succession? Effective upon death What is the form of marriage settlement? What is it about the marriage settlement which makes us say that the disposition made therein which takes effect upon death would be a form of contractual succession? A contract In the former Civil Code, oral marriage settlement is allowed which is valid but unenforceable, but in the Family Code it is required to be in writing to be valid and enforceable, hence we have no more Contractual Succession because the Family Code explicitly requires that donation of future spouses to take effect upon death must now comply with the formalities of wills and succession Article. 728. Donations which are to take effect upon. the death of the donor partake of the nature of testamentary provisions, and shall be governed in the Title on Succession.Article 783. A will is an act whereby a person is permitted with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.

In the definition provided by law, what is the indispensable requirement to make the will a valid last will and testament? There must be a disposition to take effect after death. If this element is lacking we can conclude that it is only an ordinary instrument that need not comply with the formalities prescribed by law for the last will and testament. Example: Mr. Flojo has illegitimate child but never recognized that the child was his, but he drew an instrument where he acknowledged the fact that he is the father of the child but the recognition must take effect only upon his death. That instrument was signed by Mr. flojo but does not comply with the requirements provided by law for a valid last will and testament. Would it still be a valid instrument? Will it be given weight by the Court? YES, because the instrument is NOT a last will and testament and therefore to be valid the same need not comply with the formalities required by law for a last will and testament. Why do you say that it is not a last will and testament? Because it does not contain any disposition to take effect upon death.10

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH What if the only provision in the will is disinheritance and nothing else? It would amount to indirect disposition in favor of intestate heirs who would receive in lieu of disinherited heir. VITUG VERSUS CA Facts: What does the husband want from the estate? Reimbursement for his advances he made for the estate. Where did the money in the bank account come from? From their conjugal property. How did Rowena Corona the executrix, attacked the Survivorship Agreement? That it is not valid because the contents of the same provide that either one of the spouses will get the fund upon the death of either one of them, hence she contends that it was a disposition mortis causa, meant to take effect upon the death and therefore the Survivorship Agreement should have complied with the formalities of a valid will. Did it complied with the formalities of a valid will? NO! It was just an ordinary contract, it was hardly a will. How did the Supreme Court resolved the issue? The Survivorship Agreement is valid and need not comply with the formalities required for a valid last will and testament because it is not a donation mortis causa because the property are conjugal. In a future marriage you have the husband, wife and conjugal partnership of future properties. Inside that marriage there are three patrimonies: the husband, wife and the conjugal partnership or community property. Even if you are married you can have your separate property, now if what was deposited is the separate property of the wife, then the contention of Rowena the executrix is valid. Because it will be a donation of the wife of HER property to the husband to take effect upon death, hence a donation mortis casua which must be contained in a last will and testament complying with the formalities required by law for a valid will. But if the fund is NOT a separate property of the wife and NOT of the husband, the fund is considered as CONJUGAL PROPERTY. Under the law if they both agree, they can actually dispose of it in any way they want. In this case, they invested the conjugal funds in the bank account in a form of Survivorship Agreement. ALUAD VERSUS ALUAD Discussion: If the instrument is to be treated as a last will and testament it would be NOT be valid, but if the same is treated a donation inter vivos it would be valid because there was a conveyance of property. In this case the same is notarized, there were 2 witnesses and there is conveyance of property which are sufficient to make the donation inter vivos valid. Supreme Court held that it was a donation mortis causa because it will take effect upon the death of Matilde but it did not follow the requirements provided by law for the validity of a last will and testament. Why was there even a conclusion as to the true nature of the donation? Because of the provision in the instrument saying anytime during the lifetime of the donor or anyone of them should survive, they could use, encumber or even dispose of any or all of the parcels of land herein donated. Implied and even possible that Maria can enjoy the property already even though Matilde has not died yet and this would support the contention that it was actually a donation intervivos because it took effect during the lifetime of the donor but the Supreme Court said NO, there was only a11

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH miswording because the donation really would took effect upon the death of Matilde. In the end, it held that the same did not comply with the formalities prescribed by law for a valid will hence it did not convey the property to Maria or to put it more accurately it never at all conveyed the property to Maria during the lifetime of Matilde thats why Matilde was never precluded or prevented from selling her property even after the instrument was executed by her.Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death

What are the characteristics of a valid will? Individual Unilateral Freely and voluntary Solemn Dispositive of property Mortis Causa Purely personal ambulatoryArticle 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Can the making of a will be delegated? Where do you draw the line, of what may be delegated and not? The mechanical act (typing) of drafting the will may be delegated, or writing the will, unless it is holographic will. Potential testator hired Atty. De Chavez in relation to his will. The testator must specify his heirs first, in what capacity they are succeeding whether as heirs or legatees or devisees, specify how much and what property they will receive, the institutions or establishments and the specific amount or property they are getting. Atty. De Chavez can fill in the details which amount of making the will for the testator but even the bulk of the work was done by the lawyer, the fact remains that all of the dispositions were done by the testator.Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

Purely Personal means the disposition in the will should also be made by the testator himself but nonetheless it does not preclude of the delegation of the mechanical aspect of preparing the will. For example, typing or encoding the will maybe delegated to the lawyer or the technical or agent of the lawyer. Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. What comprises testamentary disposition which cannot be delegated? Designation/appointment of heirs, legatees or devisees Duration and efficacy of their (heirs, legatees and devisees) designation Determination of the portion they are to take when referred to by name (when referred to by namean important qualification because of Art. 786, wherein the testator is allowed to make a delegation of authority to designate not just the identity of the recipient but also the portion to be received by the person. And this will happen if the testator will leave a specific amount or property to specified classes or causes.)Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.

Would there be an instance when a certain degree of delegation is nonetheless allowed by law? There can be delegation provided that the amount and property are specified, and the class of persons or organizations, the person who was given the power to make the determination is limited to naming of persons or organizations belonging to those specified and determination of the amount to be given to them.

WILLS512

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH The person who was given an authority has actually have a power not just to name the individual or entity or specified classes or cause specified by the testator but he also have the power to determine how much each of this people will be getting. In reality, that pertains to a greater delegated authority given to the third person because when the recipient is named automatically the third person can no longer venture into designating the portion they are to take. (When there is a name) E.g I leave my estate to Peter, Juan and David and I give the authority to Ms. Aguirre to determine how much each of one will be receiving that is not allowed (the exercise of the third persons power) why? Because they are named individually and yet if the testator will say Im leaving Php100,000.00 to womens causes and the third person authorize to carry out the disposition is Ms. Aguirre, we know what powers are given to her by virtue of that disposition, she (the testator) actually name the causes, the women causes, even the organization to the definite of that disposition.Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.

It is equally important to find out what does other sense means, if there is no such determination of what does that other sense means we cannot give effect to the testamentary intent. Example: Mr. Mateo, a single man, not married, without children but he is known to have a long term relationship with Ms. Montesa, and it is publicly known that he calls Ms. Montesa as baby. So he made a will saying that his leaving his properties to his only one Baby. Who is this baby in the ordinary sense? It can only refer to a child which in fact he does not have. Under the circumstances we would know that he intended to use the word baby in another sense. What about technical words? Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. Example: Mr. Mateo, a fish vendor, he made a will on his own, by simply writing it on a piece of paper, knowingly that he has an adopted child but such child was not judicially adopted. He made a will and gave everything that he had to his adopted child Ms. Aguirre. After his death somebody contested the will saying that such deposition cannot be given an effect because it say adopted child- someone who has been legally adopted. Does it mean that the disposition cannot be effected and the properties should go to the legal heirs? In this case, we can actually argued that notwithstanding that the testator uses a technical term we cannot give its interpretation as judicially adopted child because it is established that it is an ordinary layman and he is not familiar with legal terms and being a holographic will so therefore we can relax the rule and make use of an interpretation that adopted child in an ordinary layman understanding.Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. 13

The very purpose of statutory construction is always to determine the intention of the legislature, to determine and to give effect the legislative intent. In Succession, what will be determined is testamentary intent or the intention of the testator. What is the testators intent, thats why we have a law allowing the person to make a last will and testament is to allow that person with unique privilege to control the disposition of his property after his death. So, because of that purpose we should determine what the testamentary intent is. First among the rules is when the testator make use of ordinary words, what should we give in ordinary words? Also ordinary meaning Would there be any exceptions? Whenever we have such fact that there is a determination that there was an intention to use such words in another sense

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Consistent with our purpose that we should always determine the testamentary intent, the law acknowledges that we always find a vast interpretation that will give effect to all the provision of the will or at least every provision will have come effect. The law also tells us that if it is impossible to give effect to all of the provisions meaning to say that we have to nullify some of the provision, then we preferred the validity of other provisions unless it is shown that the testator would not have made such other dispositions if the first invalid disposition had not been made. Example: 1st situation: First Provision: Testator is giving a parcel of land to his concubine Second Provision: the testator made another disposition giving 1M to the same person but he did not make an express reference to that woman as a Mistress. The first provision is not valid but the second provision is valid because there is no palpable recognition of their illicit relationship which makes the first provision null and void. 2 situation: First Provision: Testator is giving a parcel of land to his concubine Second provision: the testator made another disposition giving 1M for construct a house on the parcel of land given to the same person in relation to the first disposition There is a dependency, so the first disposition being invalid because of the illicit relationship such invalidity is carried to nd the 2 disposition. As we said before, it is always possible that there is an ambiguity or inaccuracy to appear in the disposition in a will. But what kind of ambiguity can a will suffer? 2 kinds of ambiguity Latent ambiguity Patent ambiguity There is ambiguity when there is an: Imperfect description When no person or property exactly answers the description. Example: Im giving my land to my co-employee Alcantara it appears that there are 2 persons both of them surnamed Alcantara working in the same company where the testator is employed. It creates an ambiguity which of the two Alcantaras is the one that the testator is referring. In reading14nd

the will such ambiguity is not apparent, we will only find out the ambiguity outside the will or circumstances outside the will which makes the ambiguity Latent. How should we solve such latent ambiguity? Consult the will first, if there is no such answer, consult extrinsic evidence In kinds of ambiguity our first resort will always be the will because it is the repository of testamentary intent. Always consult the will. If we cant find the answers in the will then we will be allowed to go outside of the will and consider extrinsic evidence. What kind of extrinsic evidence? All kinds of extrinsic evidence except declarations or testimonies of the testator

oral

Why are we excluding those? Because a dead person can no longer refute what is being attributed to him. Supposing that one of the Alcantaras basis was not an oral testimony but it was an email message, would that constitute a valid extrinsic evidence? It can be accepted because it is not an oral declaration. Patent ambiguity- such ambiguity that is palpably apparent on the face of the will, meaning by reading the will itself and under the provision where the ambiguity lies, we can see that there is something wrong with the disposition. Example: I bequeath all of my houses to my friend to some of my cousins How do we solve patent ambiguity? After we go by the provision of the will, then we can consider extrinsic evidence but with certain limitation because the law provides that we have to consider the circumstances under which the will was made, all other considerations will be excluded. Example: in the preceding example, if it can be shown that at the time of making his will 10 of his cousins attempted to kill him, if the testator is estranged with his cousins he will not leave them something to his cousins who made the attempt. Article 781. The inheritance of a person 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.

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTHArticle 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.

Point reference in Art. 781 is the death of the decedent/succession opens, the successional rights will be vested. Meaning to say that inheritance will include those properties which accrue to the inheritance after the opening of succession. Because any property (income, fruits) that will accrue after the succession is opened, will that form part of the inheritance? Inheritance is something that you received from the decedent by virtue of succession, but if succession has been opened and there is income, interest or accessions to the property, would u as heir, be entitled to those income, interest or accessions by virtue of being an heir? Or u become entitled to them because u are the owner of the principal on which they accrued? As an owner Art. 781 should not be in interpreted as being in any way contradictory to Art. 793 because Art. 781 already pertain to properties accruing to inheritance whose ownership has already been vested. Example: the inheritance includes a saving account, as we know saving account earns income by way of interest. July 11, the interest that will be accruing after july 11, will go to the heirs by virtue of the savings account, the heirs are entitled because he is the owner because ownership was vested when succession was opened. Art.793, basically says any last will and testament that has been made can only cover those properties existing at the time of making of the will, it cannot include after acquired properties. It is important to understand that when we say after-acquired properties the point of preference is the making of the will not the opening of succession. So any last will and testament that has been made cannot cover afteracquired properties unless there is an express provision in the will covering after acquired properties. Example: u make a will, in this will the savings account is given to Ms. Aguirre, the will is made today July 11. After July 11, you as the testator made a deposit with the savings account, the original deposit amount of 1M has grown to 10M at the time of ur death. Will Ms. Aguirre be entitled to the 10M? the amount that has been made at the time of the death of the testator? Or the 1m, the amount that is the same in the provision of the will? 1M why is she not entitled to the other 9M? because it is in the nature of after acquired property, acquired after the making of the will.15

Can she be entitled to the other 9M? yes, provided that there is an explicit provision saying that the will covers after acquired properties. If there is no such provision, what will happen to the 9M? it will govern by intestate succession.Article 794. Every devise or legacy 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. Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.

What govern the execution of last will and testament? Extrinsic validity- shall be govern by the law in force at the time the will is made Intrinsic validity- shall be governed by the law in force at the time of decedents death Testamentary Capacity How important is testamentary capacity in the validity of a last will and testament? If u dont have testamentary capacity, u cannot made a valid will, the last will and testament is null and void When testamentary capacity should take place? At the time of making of the will Who has a capacity to make a will? Article 796. All persons who are not expressly prohibited by law may make a will.Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

The person should be of sound mind. If u would look around the classroom, who among ur classmate is of unsound mind? None Why? What does the law presumes? The law presumes that every person is of sound mind Why does the law presumes? It is easier to make such presumption. What is soundness of mind? When does a person consider that he is of sound mind? Requirements of sound mind only for the purpose wills and succession

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH o o o The testator must know the nature of the estate to be disposed of The proper object objects of his bounty The character of the testamentary act Why lucid interval? Because the law only requires that testamentary capacity be present at the time of the execution of the will, if the lucid interval will allow the testator to do that, then the will is valid.Article 797. Persons of either sex under eighteen years of age cannot make a will.

Negative definition of sound mind- the law does not require that the mind is wholly unbroken or unimpaired by disease, injury or other causes.Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

Would the gender of the testator affect the testamentary capacity? No A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Is this an accurate definition that a will is an act? No, the will must be in writing. An oral will is not valid.Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity.

What should be present when it comes to soundness of mind for us to say that a person although his mind in impaired or injured? He should be in touch with the reality

Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court. Article 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.

General Rule- the presumption is in favor of soundness of mind Exception- if the testator, one month, or less, before making his will was publicly known to be insane, the presumption is now abandoned Who has the burden of proving the soundness of mind? None, because there is a presumption of soundness of mind Who has the burden of proving the unsoundness of mind? The person whom opposes the probate of the will, unless the exception applies which is when the testator is publicly known to be insane a month or less after the execution of the will, in which case the burden is upon the proponent of the will. What does the proponent of the will prove? That the will is executed during lucid interval

2 kinds of will Notarial will Holographic will The notarial will is more formal than holographic will. A holographic will is written, dated and signed in the hand writing of the testator. SUROZA VS HONRADO Testatrix, who was an illiterate, supposedly executed a notarial will in English and was thumbmarked by her wherein she bequeathed all her estate to her supposed granddaughter Marilyn. The opposition to the probate of said will assailed the due execution thereof, and alleged that the institution of Marilyn as heir was void because of preterition of Agapito, testatrixs anak-anakan. The Supreme Court held that the will itself stated that the same had to be translated to the Filipino. This could only mean that the will is written in a language not known to the illiterate testatrix. The judge, on perusing the will, could have readily perceived that the will is void.

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WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH ABANGAN VS ABANGAN The opposition to the probate contended that there was no showing that testatrix knew the dialect in which the will was written. The Supreme Court held that the circumstance that the will was executed in the dialect of Cebu, where testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew the dialect. Even if this presumption doesnt apply, still the attestation clause need not allege knowledge on testators part, since this fact may be proved by evidence aliunde WILLS6Article 804. Every will must be in writing and executed in a language or dialect known to the testator. Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

It must be acknowledged before a notary public by the testator and witnesses

You said that these requisites that you mentioned is applicable to a notarial will. Is there any other kind of will? Holographic will Holographic will is one which must be entirely written, dated and signed by the hand (in the handwriting) of the testator himself. You can see that the holographic will is less formal than a Notarial will. But even then, there are certain requisites that are common to both notarial will or holographic will, so what are these requisites? It must be in writing and It must be in the language or dialect known to the testator. Now this fact, whether the will is written or not, it is immediately apparent. Now, what about that the will must be in the language or dialect known to the testator? Does the law require that this requirement must be in the will? In other words, Must the will say so? Or must the will states that it must be in the language or dialect known to the testator? NO. How do we establish this? It doesnt have to appear in the will, it may proven by extrinsic evidence Now, additionally, would there be any presumption in the law regarding the knowledge of the testator of the language or dialect known to the testator? Yes. There is a presumption that testator knows the language or dialect. What is the basis of your answer? Is it the presumption provided for by law? What do you think is the basis of this presumption? What is the authority to make this presumption? It may also be inferred from the fact that it was made in the dialect of the locality where testator is a resident and that dialect of that locality is the same dialect in which the will is written ABANGAN v. ABANGAN What is the issue in relation to the provision of article 804? The will did not say that it was in the language or dialect known to the testator.17

Lets go to the requisites of a valid notarial or ordinary will. What are the requisites? It must be in writing It must be in a language or dialect known to the testator. It must be subscribed at the end thereof by the testator himself or by the testators name written at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction. It must be attested and subscribed by three or more credible witness in the presence of the testator and of one another. It must be signed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof except the last on the left margin All pages must be numbered correlatively in letters placed on the upper part of each page. It must contain an attestation clause

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH Would that be a fatal defect? I think to establish fraud. And it can be proven by evidence aliunde. The court still took the occasion, took the opportunity to lay down the presumption. The presumption is that the will is written in the language or dialect known to the testator, in the locality, or if executed, or if the testator happens to be residing in the same locality. What is the effect if a will is shown is written to be not in the language or dialect known to the testator? The will is null and void Lets go to the requisites of a valid notarial will It must be subscribed at the end thereof by the testator himself or by the testators name written at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction. What does subscribe mean? To subscribe means to sign. When you are to signing a document, are you limited to signing your full signature? Does it require that it be in your full signature? No. It can be the initial, or the last name or the full name of the testator. Provided that the testator intends that to be his signature. It is the matter of intention. SO if I have to write in full name, or if I have to write in usual signature, what matter is that it is his intention to use what you have written as his subscription. What is the purpose of this requirement to subscribe? To identify the document as the will of the testator When we say that it is the purpose to identify, we are referring to the subscription of your name at the end of the will or in the left hand margin? Where should the signature appear? At the end of the will. You are seems to be very specific on the location, how come? Because when the testator signs at the end he intends that such is the last disposition What is the purpose of the signature appearing at the end of the disposition? To prevent fraud What about the signature appearing on the left hand margin? How would the signature on the left hand margin serves to show the number of pages of the will? the purpose should be to authenticate or to identify the pages of the will but not to show the number of pages that the will has. The presence of the signature is to prevent any intercalation or the substitution of the pages. Who are person that can subscribe the will? Another person may subscribe the will. 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 law does not require any justification or explanation before another person can subscribe the name of the testator for himself. What is that required is that a third person should sign under the authority of the testator, in his presence and this fact should be reflected in the attestation clause. If it is not attested in the attestation clause, the will is Null and Void What should the third person write on the will if he is asked by the testator to sign for him? He should write the name of the testator Is it required that the third person should also write his name NO, it is not required Is it required that there is some kind of document evidencing authority to sign? No. It is not required. It is not required that a SPA be attached at the back of the will. This is already addressed that the signing be done at the presence of the testator. PAYAD V. TOLENTINO What does this case tells you? First, Subscription is not limited to affixing ones signature. Subscription can include printing of marks that can be associated to the testator. In this case, what mark is that, it is a Thumb mark. Secondly, a thumb mark is acceptable subscription. It is acceptable as a form of subscription then the will was not18

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH effectively signed by the third person on behalf of the testator because it is in thumb mark. Because of this, there was no longer need for a statement in the attestation clause to the effect that a third person signed in his presence and by his express direction. The attestation here would be perfectly valid MATIAS VS SALUD Facts: it would appear that the deceased, who left no ascendants or descendants, bequeathed most of her properties to her niece Aurea Matias, in recompense for the services rendered by the latter to the former for more than 30 years. Some legacies were made to her other nephews and nieces. Aurea Matias was appointed executrix without bond. The probate of the deceaseds alleged will was opposed by Basilia Salud, another niece of the deceased. After hearing, the trial court denied the documents admission to probate, principally on the grounds that the will was not executed and witnessed as required by law; nonproduction of witnesses, and fraud in the execution of the will Ruling: The legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testators name at his request. While in some cases the signing by mark was described in the will or in the attestation clause, it does not appear that the Court ever held that the absence of such description is a fatal defect. The will having been executed and witnessed as required by law, the same should be admitted to probate GARCIA VS LACUESTA In this case, the testator supposedly signs by affixing a cross to the will. And he never signs his name although his name was signed for him by Atty. Javier, the problem is, that the attestation clause did not indicate that there was an authority given to Atty. Javier to sign on behalf of the testator. So, what did he tried to do? He tried to invoke the previous cases in Payad v. Tolentino. They were saying that there is no need for attestation clause to19

contain such statement because of the presence of the cross. If the cross, unacceptable form of subscription to show that his presence will do away with the need for the attestation clause to inure the statement regarding the delegation of the authority made by the testator. Would it be acceptable act of subscription? Remember that subscription not with regard to the signature of the testator, although ideally it is by his full signature that the testator should subscribe or sign the will. In signing important documents, it should be in full signature. But such is not even a requirement. You can sign in your initials or in any way that you want so long as your intention is there. Now, supposing that there is such an intention here, would it be acceptable, would the cross be acceptable? can this be liken to a thumb mark? Supreme Court said, No. You cannot rely on the cross on the same manner that you rely on a thumb mark. Thumb marks are unique for every individual. No two thumb marks are alike. In other words, with regard to the thumb mark, there is a clear, categorical and an reliable association between a person who create the thumb mark and the person himself. There would be an association. But what about the cross? We said earlier that so long that the intention is there? But then, we have to think of over all purpose of these formalities and solemnities. What is the purpose? To guard against any fraud. If you accept this as sufficient subscription, would you still be faithful for this purpose regarding this fraud? Not anymore, because a cross is a cross. My cross would not be different to the cross of Ms. Bermudez and to the cross of Ms. Domingo. That is only a cross. Who can say that it is my cross? Its hard to tell. You cannot just readily accept it.

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH There was no showing even that this was the usual way that the signature signed his name. What does that tell you? Had it been the case that this was his usual signature, that this was what he best guide in terms of identifying himself, this could have been acceptable. If for example, in case of ZORRO- signing Z Would you accept? How do we identify him? By signing Z. And you apply the ruling of the Supreme Court, would you accept the letter Z as a subscription? Yes. Because in the case of Zorro, there is no doubt that usual way the testator Zorro signed his name or identify himself. There is an established association. Whereas the cross which allegedly by Antero Mercado, there is no established connection between the cross and Mr. Mercado. There was no showing that that this was the usual way by which he signs. That statement is pregnant with implication. Had it been the reverse or had it been the usual way in signing his name, it could have been acceptable. BARUT VS CABACUNGAN The implication was that the name of the testator and the signature of the person who supposedly wrote her name, were not done by one and the same person. Another person actually wrote the name of the testator and another person also signed below the name of the testator. Now, would this be a fatal defect? Remember that the law does not even require that the person who actually writes the name of the testator be identified in the will. You always suppose to write the name of the testator. It is sufficient that the attestation clause explained it, that a third person signs for the testator, in his presence and under his express authority.20

It is immaterial, it does not matter, who actually write the name of the testator. It is immaterial who write the name for him, it is more irrelevant, it is more unimportant that the name of the person, does not appear in the will. Any discrepancy will not affect the validity of the will. What about the witnesses, are you suppose to sign the will as well? What is the participation of the witnesses in the application of the will? The establishment not to the contents of the will which they do not have to know but to the fact of execution of the will. Thats why that the will should not have been in the language known to the witnesses, because they are not required to know the contents of the will. Now, what is their participation in the implication of the will? They are required to authenticate and identify the will and also, they are required to attest to its execution. How do they carry out this function of identifying or authenticating the will? By signing on the left hand margin on each and every page of the will except the last page and same purpose as the signing of the testator, to prevent any intercalation of the papers of the will. The function of attesting the will? How was this done by the witnesses? They do it by executing an attestation clause. The attestation clause must 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. What constitutes presence? It constitutes Sight or Vision and Proximity of Position Sight or Vision Act is done in the presence of one who if he wants to, with reasonable case, without

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH danger to his life and without changing his relative position can see the act. It is sufficient if the person, if he wants to, can see the act by simply casting his eyes in the proper direction. Proximity of Position When the act is done at a point close to a person so that it may be said to be in his presence. The requirement of presence applies to both witnesses and testator Must these elements of presence which is proximity and sight always concur? Only with respect to the witnesses. (that proximity and sight must concur) But to the testator who is blind, obviously, the requirement of sight cannot be met. It is a very well known fact that people who cannot see have NERA VS RIMANDO In the case, we have two separate rooms. witnesses in the presence of the testator and of one another. Why there is no presence? Because no matter what the witness does, the one who is supposedly in the bigger room, he cannot, by the mere moving of his head, casting of his eyes at direct direction of what is going on in the smaller room. There was a curtain between the two rooms. Requirement: the testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses ICASIANO VS ICASIANO These requirements are mandatory. Thats why the will must be in the formal of document. So, if you do not comply with the mandatory requirement, ordinarily, your will, will be Null and Void. However, even as you say this, you should always be reminded, that these formalities are meant to safeguard the will. So if these objections of safeguarding the will are otherwise achieved, you do not have to be as ___ technical or formal requirement. To do so, would be to defeat the testamentary intent. So, in this case, the Supreme Court relaxed the rule. Why? First, because the witness who failed to signed the third page, testified in court. That he was threatened when the will was signed. Secondly, we have also in evidence a duplicate original, it is another copy of the will that was executed at the same time as the original. In evidence, a duplicate original or one executed simultaneously with the original copy is as good as the original. We can afford to relax the rule. CAGRO VS CAGRO This case is in relation to the requirement of the signatures of the witnesses on the left hand margin, but this time, in relation to their duty to provide an attestation clause of the will. The will here only consisted of a single page. However, the witnesses did not sign under the attestation clause, what they did sign was the left hand margin of the document, of the one page will.21

witness testator witness Curtain

We have two adjoining rooms. A small room and big room. There was a curtain. The testator and the other witness was in the small room and the other, on the bigger room and that there was a curtain. In reality, it was established that all the witnesses were in a small room. But the Supreme Court was not happy on what the lower court held that it could not have mattered in the will. But the Supreme Court held that, had this been the case, that one of the witness was actually in the big room, and separate by a curtain and the will would have been invalid because there was no compliance with the requirement that signing be done by the testator in the presence of the witnesses and by the

WILLS AND SUCCESSION REVIEWER BY MARX, MON, SOC, APRIL and RUTH When the will presented for probate it was opposed for this ground, that there was no attestation clause because of the failure of the witnesses to affix their names at the end of the attestation clause. The proponents of the will wanted the SC to treat that the signature on the left hand margin as sufficient, both to authenticate (left hand margin) and to constitute as attestation of the last will and testament. What the Supreme Court says or how the Supreme Court explains? Why it cannot constitute that the signature on the left hand margin as sufficient signature as well for the attestation clause? Because of the purpose, we pointed out earlier that one is for authentication and identification and the other is more substantial act of attestation. How did the Supreme Court distinguish attesting the will or one simply identifying and authenticating a will? The Attestation clause is a written memorandum of the act or the circumstances surrounding the execution of the will. It is not simply a mechanical act of identifying or authenticating a document. It is more substantial than, when the only signature one which serves to authenticate or to identify a document, it could not expand its scope or its effect to include attesting. Say again that this is the document that the witnesses signed, by signing on the left hand margin, is not the same as saying that this document was published to the witnesses to them as the last will and testament that it was signed in their presence, that they all signed in the presence of the testator and of one another, that is different. What could have happened if the circumstances were reversed? Or what if the attestation clause which contains the signature of the witnesses and the left hand margin was remain blank? Then the will could have pass probate. For the simple reason that attesting a will, a one page will in this case would necessary include the act of identifying or authenticating a will. Identifying or authenticating does not necessarily include attesting but attesting. Specifically if the22

document consist of one page would necessarily include identification and authentication. Dissenting opinion of Justice Bautista That the Supreme Court may have been unduly strict in this case because the reason of supreme court that Maybe there is no attestation clause in the last will and testament and they only just typed it or attached it. This could be a more fatal defect. But according to Justice Bautista, the witnesses themselves testify that when they signed, the attestation clause was already in the will. What is his point, the point is that the objective of the law of safeguarding the will against fraud had already been achieved. There was no use to be strict anymore, nagsabi naman ang mga witnesses eh, when they signed, the attestation clause was already there. Mali lang siguro ang pinaglagyan ng ating lagda. But then, the Supreme Court stood by its ruling and