Succession from Balane and Baveria.pdf

8/12/2019 Succession from Balane and Baveria.pdf

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Notes And Cases On SUCCESSION

Based on Lectures given by:

Prof. Ruben Baane and Prof. Aracei Baviera

Co!"ied and Edited by Rode A. #oina

UP La$ Batc% &''(

This work is a compilation of Prof. Ruben Balane's

lectures in succession, by his students both in the UP College of

aw and in the !teneo aw "chool. ectures of Prof. Ba#iera in

Ci#il aw Re#iew $"uccession% ha#e also been included in this

work.

"pecial thanks to ouella &ra for lending me her magic

notes on "uccession as compiled by students of the !teneo aw

"chool, to ianne Tan for lending me her diskette in "uccessioncontaining the lectures of Prof. Ba#iera and to the late duardo

Balangue for lending me his magic notes on "uccession as

compiled by students of the UP College of aw.

This work is dedicated to Class !, UP aw Batch ())*,

to which & belong.

-- RAM

_______________

IN)RO*UC)ION

Conce"t.++ Succession is the last mode of acquiring ownership. It is an independent mode of

acquiring ownership.

Re,uisites of Succession:

(1) eath of the predecessor!(") #$istence and capacit% of the successor!

(&) 'roision of the law or proision of a will granting the right of succession!

() Acceptance *% the successor.

-: Is tradition deivery/ re,uired for o$ners%i" to transfer0

A+ ,o. wnership is transferred *% succession not *% an% other mode.

Ety!oogy.++ Succession is deried from " /atin words+ sub meaning under (e.g. an underling

a su*ordinate if a plane traels at a su*sonic speed or fl% *elow opposite-- su*sonic) and cedere

meaning to gie to pass.

Succession therefore is a passing under. It gies the idea of the nature of succession as

originated from Roman /aw. 0h% do the Romans call it a passing under 2ec. of the fiction in

Roman /aw that a personalit% occupies a space that is a legal personalit% is permanent. A

permanent fi$ture *ut the occupant will go awa%. And it is the successor who will occup% the


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Notes and Cases on SUCCESSION3ompiled and #dited *% RAM

space %ou left acant. 4here is alwa%s what %ou callpersonalitas. 5Sound through5 li6e a pla%

where %ou wear a mas6 and the one *ehind the curtain is sounding through. that is some*od% is

reall% tal6ing *ehind %ou. 4his *% analog% is succession.

Persona means 5%ou5 the character. Personalitaor personalit% w7c is alwa%s there and

there is or there will alwa%s *e an occupant who comes and goes! it ma% change the characterthe person passes under. 0hat is *ehind all this 'ersonalit% neer dies. 0e are *ut dust and

shadows *ased on the realit% of death.0h% do we hae to deise this fiction 0h% the law on succession 4he /aw on

succession has arious underpinnings in Roman /aw that is first the ague idea of after life li6e

the ideas of 8orace -- state of good in the #lipian fields! second that the law deelops *ased on

conditions of societ%. ne of the most *asic desire of man is the desire for immortalit%.

8ow 0hen 4o 0hom In 0hat proportion are the% transmitted -- Succession.

2ASIS 9 48# /A0 , S:33#SSI,+

1. Succession proides the ehicle for satisf%ing %our %earning and longing for immortalit%. It

satisfies or consoles %ourself that something in %ou lies foreer and this is %our personalit%.

thers usuall% leae something li6e paintings *oo6 of poems statue so that the% will *eremem*ered foreer e.g. 8orace *% Sha6espeare.

". 3oncept of pater familias. iligence of pater familias. Pater familias means head of the

famil%. 4he *asic unit of Roman societ%. It is he who managed and e$ercised authorit% oer hischildren a*solute control oer his wife. In Roman law a man;s wife is his child. It is he who is

the guardian of the famil% gods. It is a position that must *e occupied eer% time. It is

unthin6a*le to *e otherwise. nce he dies it is a*solutel% necessar% not onl% in religion that he

is to *e replaced immediatel%. 4his is indispensa*le.

4hese underpinnings are gone now. 4oda% succession is nothing *ut a mode of acquiring

ownership. 0h% 2ecause %ou do not hae the fiction to hae succession *ec. of the spread of

3hristianit% w7c too6 the place of those %earnings that it is *elieing in


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from personalit%. Some of these legal relations are permanent some are transitor%. Some of

these relations are+ paternit% and filiation marriage and maternit% mem*ership of the *ar

student of :' etc. w7c other persons do not hae. 4here are transitor% relations and e$amples of

these are one when *ought a *ottle of 3o6e! lease of an apartment unit! a mortgage! a contract of

partnership! when one rides a *us etc.

0hen a person dies personalit% is e$tinguished. Some of these =uridical relations willdie w7 %ou-- intuitu personae++ SSS ou hae to set a deise. >ou can not

leae them hanging in the air. >ou hae to deise a set of rules to determine the how when to

whom to what e$tent these rights will *e transmitted. 4he law w7c goerns them is succession.

And that is all on succession eer%thing is footnotes.

*I44EREN) 5IN*S O4 SUCCESSION

A. 2% the moment of transmission+1. mortis causa++ ta6es place *% irtue of death

". inter #i#os++ ta6es place independentl% of death during the lifetime of the parties (now

called onation inter #i#os.)

2. #$tent of rights inoled+

1. Uni#ersal-- this is er% catch%- it inoles the entire estate or fractional or aliquot or

undiided part of the estate e.g. I gie %ou 17" of m% estate.

". Particular partial.-- succession to specific items

a. legac%-- specific personal prop. e.g. I gie %ou m% car

*. deise-- specific real prop. e.g. I gie to < m% fishpond in /aguna.

3. As to cause+1. Compulsory.-- that effected *% operation of law to forced heirs een if not in a will!

succession to the resered portion7 legitime

". Testamentary.++*% will

&. &ntestate or legal.++ succession in default of a will! su*ordinate to testamentar%

succession

. -ied.-- com*ination of the a*oe.?. Contractual.-- #.g. donationpropter nuptias*% one to another of future prop. w7c

ta6es effect after death. 0h% contractual 2ec. of the transfer of prop. is not *% irtue of a will

*ut *% contract. So it is goerned *% the law on contracts. 8ence it must *e goerned *% the

Statute of 9rauds. It must *e in writing to *e enforcea*le.

. As to parties to succession+1. ecedent transferor causante, acutor, de cuius

". Successor transferee causa habiente

#. As to terms+

1. 4estator.-- decedent left a will

". Intestate.-- decedent did not leae a will

&. 8eir.-- one who succeeds *% uniersal title or to a share of the estate

. eisee.-- one who succeeds *% particular title to real prop.

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?. /egatee.-- one who succeeds to a specific personal prop.

Ee!ents of Succession #anresa./:

1. 3hange of su*=ect (cambio de suheto.)-- ownership is transferred from deceased to heir(su*=ectie change.)

". Identit% of *=ect (identidad de ob/ecto)-- same prop. is inoled onl% the owner is changed.

4he right is the same (o*=ectie identit%.)

I!"ortant Princi"es of Succession $%ic% "er!eates t%e entirety of Succession/:

1. -ortis Causa.++Succession can not ta6e place while the owner is alie. 4he heir7

successor has a mere e$pectanc% right to the prop. of the decedent during the lifetime of the

latter.

". Interest of the famil% ma% oerride the will of the decedent *ec. of compulsor% heirs.

4here is a legitime resered for the famil%. A will cannot impair the legitime.

&. 4he estate passes or deoles to the famil% unless the decedent e$pressl% orders

otherwise in a will. 9amil% coers spouse ascendants descendants and collateral relaties.. 4he famil% can not *e entirel% depried of the estate *ec. of the s%stem of legitime.

?. 0ithin the famil% heirs of equal degree7 pro$imit% inherit in equal shares.

'resumption of equalit%. 4his is onl% the general rule. 4here are e$ceptions.

@. 4he State has a share in the inheritance through ta$es.

. 4he heirs are not lia*le for the de*ts of the estate *e%ond their share in the inheritance.

#state is lia*le for the de*ts left *% the decedent. e*ts are to *e deducted *efore the heirs can

get their shares. 'rocedure+ 3ollect all assets deduct de*ts then partition the shares. :p to what

e$tent :p to all its assets. If the estate is Bero *alance the heirs get nothing.

:nder the modern ciil law if the decedent left more de*ts than assets it will not change or affect

%our status an%wa% *ut not w7 the decedent;s creditors-- the% hae to *eware-- ca#eat creditor.

Basis of t%e La$ on Succession.++ Some sa% it is the law on propert% w7c seems to *e the *asic

attitude of the 3ode. thers sa% succession is a law on persons *ec. of the compulsor% heirs.

8ow can %ou e$plain that Is there some lin6 *et. the law on succession and propert% 4here is.

3astan said that law on succession is *oth law on persons and propert%. 8oweer in a pure

testamentar% succession the law on persons do not come to pla%. Sa% a will giing :' a

propert%. 4his is more on the law of propert%. 4his is the ecclectic theor% of 3astan.

#a6or C%anges in t%e Ne$ Civi Code on Succession:

1. Allowance of holographic wills (Art. C1D.) It gies greater freedom to the decedent to

choose in what form he can dispose *% will his estate. 8olographic will is not a noelt% *ut a

reial. 4his was allowed in the Spanish times *ut was a*rogated during the American regime. Itwas onl% restored under the ,33.

". Improement in the successional position of the suriing spouse. :nder the 33

the suriing spouse had a right of usufruct onl%. :nder the ,33 the suriing spouse is gien

full ownership and is a compulsor% heir. 4he share is aria*le that it is so *ewildering.

&. A*olition of the right of me/ora or *etterment (the right of the parent to gie a child

more than the other.) 4his is *asicall% a portion of the legitime 17&. 9reedom is gien to the

testator as to who among his children he will gie the 17&. 4his s%stem was neer utiliBed *ec. it

was neer understood *% the people.

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. A*olition of the reser#as and re#ersiones. 4he ,33 restored reser#a troncal,

re#ersion adopti#a (under ' @D&.)

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Art. 77>. Succession is a !ode of ac,uisition by virtue of $%ic% t%e "ro"erty; rig%ts

and obigations to t%e e?tent of t%e vaue of t%e in%eritance of a "erson are trans!itted

t%roug% %is deat% to anot%er or ot%ers eit%er by %is $i or by o"eration of a$.

2alane+ &. Succession is a !ode of ac,uisition.++ 'ropert% rights and o*ligations aretransmitted! those w7c are not e$tinguished *% death of the decedent is inheritance. Succession is

*ut a process of transmission.Succession is a mode of acquisition of inheritance transmitted to the heirs upon the death

of the decedent through a will or *% operation of law.

. )$o ee!ents of Succession.++ (1) identit% of o*=ects! (") change of su*=ects.

8. Rue.++ 4he estate of the decedent pa%s for the o*ligations of the decedent. 0hat is left is

gien to the heirs.

>. Connect Art. 77> $@ Art. 77(; su"ra.

9or mone% de*ts+ If not paid in settlement proceedings heirs could *e lia*le to the e$tent

of what the% receied

9or o*ligations+ #.g. lessee-lessor-- o*ligation to 6eep the lessee in the peacefulpossession is transmitted to the heirs.

. Pro"erty and Rig%ts+ 'assed on to the decedent;s successors

(. Obigations:

a. #onetary.++


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1. 'ropert% rights and o*ligations which are purel% personal are e$tinguished *% the

death of the decedent. 4he% are not part of the inheritance e.g. mem*ership in the *ar or right of

consortium w7 %our wife.

". 4hose w7c are purel% patrimonial.


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2or=a . 2or=a.-- 4he right to inherit is ested at the moment of death. #en if she did

not 6now how much she was going to inherit she could still dispose of her share in the

inheritance. Said right to the share was hers from the moment of death and she could do

whateer she wanted w7 her share een sell it.

2onilla . 2arcena.-- >ou do not need a declaration of heirship whether testate or

intestate oluntar% etc. 4he rights of the heirs to the prop. est in them een *efore =udicialdeclaration of their *eing heirs in the testate proceedings.

An action to quiet title is not e$tinguished *% the death of the decedent it *eing a

patrimonial right. 8ence the heirs hae the right to *e su*stituted to the action een *efore their

haing declared as heirs.

FimeneB . 9ernandeB.-- 3arlos died in 1E&@ *efore the effectiit% of the ,33. As such

his illegitimate child cannot inherit from him. As such title to the land *elongs to the cousin who

inherited the land w7 3arlos.

.

Art. 77. Succession !ay be:

&/ )esta!entary9/ Lega or Intestate9 or

8/ #i?ed.

2alane+

1. 4estamentar% (Art. E.)-- designation of an heir in a will

". /egal or Intestate .-- w7o a will or the will is inalid

&. Mi$ed (Art. CD.)-- partl% *% will and partl% *% operation of law

. 3ompulsor%.-- Succession to the legitime *% a forced heir.

Art. 77'. )esta!entary succession is t%at $%ic% resuts fro! t%e designation of an%eir; !ade in a $i e?ecuted in t%e for! "rescribed by a$.

2alane+ 8eir includes deisees and legatees.

Art. 7D. #i?ed succession is t%at effected"arty by $i and "arty by o"eration of

a$.

Art. 7&. )%e in%eritance of a "erson incudes not ony t%e "ro"erty and t%e

trans!issibe rig%ts and obigations e?isting at t%e ti!e of %is deat%; but aso t%ose $%ic%

%ave accrued t%ereto since t%e o"ening of t%e succession.

2alane+ It is *etter to scrap Art. C1. It has no significance. #en w7o it those w7c accrue after

death will still *elong to the heirs.

#.g. A has a son G. A dies in 1ECC. Inheritance is a mango plantation. In 1EED there is

a crop. Is it part of the inheritance

1. According to Art. C1 %es. 4his is inconsistent w7 Art *ec. succession occurs at

the moment of death. Art. C1 implies a second succession.

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". /egal concept.-- ,o. G owns it through accession and not succession. 9ruits are no

longer part of the inheritance. It *elongs to the heir *ec. of ownership of the land he receied at

the moment of death. (Art. .)

4hose w7c hae accrued thereto after death do not comprise the inheritance *ut the%

accrue *% irtue of ownership (accretion.)

Art. 7. An %eir is a "erson caed to t%e succession eit%er by t%e "rovision of a $i

or by o"eration of a$.

*evisees and egatees are "ersons to $%o! gifts of rea and "ersona "ro"erty are

res"ectivey given by virtue of a $i.

2alane+ 4he definitions gien in this article are not good. 4he definitions contained in the

Spanish 3iil 3ode were *etter. An heir succeeds *% uniersal title. eisee or legatee succeeds

*% particular title.

According to 3astan an heir is one who succeeds to the whole (uniersal) or aliquot part

of the estate. eisee or legatee is one who succeeds to definite specific and indiidualiBed

properties.

#.g. I *equeathed 17" of m% fishpond in 'ampanga to A. Is the successor an heir legateeor deisee A deisee the prop. *eing a specific real prop.

-: Is it i!"ortant to distinguis% bet. %eir devisee and egatee0

A+ 2efore %es. 4he heir inherited een de*ts of the decedent een if it e$ceed the alue of the

propert%. eisees or legatees were lia*le for de*ts of the decedent onl% up to the e$tent of the

alue of the prop.

,ow ,o. #$cept in one instance in case of preterition in Art. C?. If read carefull%

institution of heir is annulled while deise and legac% are not so long as there is no impairment of

the legitime.

Art. 7 is not a $oring definition.++ Someone who is a deisee (succeeded *% a particular

title) can fit into the definition of an heir (succeeds to a fractional7 aliquot7 undiided part of the

estate.) and ice ersa.

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C%a"ter

)ES)A#EN)ARF SUCCESSION

Section &

2ILLS

Subsection &

2ILLS IN


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#.g. A dictated 4he Secretar% wrote it down and t%ped. Is the will alid >es. 0hat cannot *e

left in whole or in part to a third person is the e$ercise of the will ma6ing power the e$ercise of

the disposing or testamentar% power. 4he mechanical act can *e delegated.

Art. 7. )%e duration or efficacy of t%e designation of %eirs; devisees or egatees; or

t%e deter!ination of t%e "ortions $%ic% t%ey are to tae; $%en referred to by na!e; cannotbe eft to t%e discretion of a t%ird "erson

2alane+ 4his proision clarifies Art. C on will-ma6ing power.

)%ings 2%ic% Cannot be *eegated to a )%ird Person by t%e )estator:

1. esignation of heir legatee or deisee e.g. I here*% appoint G as m% e$ecutor and it

is in his discretion to distri*ute m% estate to whomeer he wants to gie it. 4his can not *e done.

". uration or efficac% of such disposition li6e 52ahala 6a na Ru*en.5

&. etermination of the portion to w7c the% are to succeed when referred to *% name.

Art. 7(. )%e testator !ay entrust to a t%ird "erson t%e distribution of s"ecific

"ro"erty or su!s of !oney t%at %e !ay eave in genera to s"ecified casses or causes; and

aso t%e designation of t%e "ersons; institutions or estabis%!ents to $%ic% suc% "ro"erty or

su!s of !oney are to be given or a""ied.

2alane+ Art. C@ is an e$ception to Arts C and C?. It coers things that are part of the essence

of will ma6ing *ut allowed to *e delegated.

E?a!"es of Pro%ibited *eegation:

1. 3an not delegate the designation of the amount of prop. e.g. I here*% set aside the sum _____

w7c m% e$ecutor ma% determine for the cause of mental health. 4he amount is not specified.

". 3an not delegate the determination of causes or classes to w7c a certain amount is to *e gien

e.g. I here*% set aside '1M for such worth% causes as %ou ma% determine. 4his is not alid *ec.

the cause is not specific.

2% wa% of e$ception there are " things w7c can *e delegated. 4he testator must specif%-- (a) theamount of propert%! (") the cause of classes of propert%-- *efore the delegation can ta6e effect.

1. 4he designation of person or institution falling under the class specified *% the testator.

3hoosing the mem*ers of the class *ut is restricted *% the class designation e.g. I here*% setaside the sum of '1M for the deelopment of AIS research. M will choose w7c institution. 4his

is allowed *ec. %ou hae guided alread% M;s decision. 8oweer M cannot designate Manila8otel.

". 4he manner of distri*ution or power of apportioning the amount of mone% preiousl% set aside

or prop. specified *% the testator e.g. I designate the following hospitals to get the share in m%

estate and appoint M to apportion the amount of '1DM. I set aside '"?DDDD for the following

institutions+ :' '


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Art. 77. )%e testator !ay not !ae a testa!entary dis"osition in suc% !anner

t%at anot%er "erson %as to deter!ine $%et%er or not it is to be o"erative.

2alane+ 4his proision clarifies what is meant that 5a will is personal.5 4his is in effect

delegating the discretion to the disposition of the will.

Artices 7+ 7'. Inter"retation of 2is@ Rues of Construction.

Art. 7. If a testa!entary dis"osition ad!its of different inter"retations; in case of

doubt; t%at inter"retation by $%ic% t%e dis"osition is to be o"erative s%a be "referred.

2alane+ Art. CE is the rule on interpretation in order that the will ma% *e alid and not perish.

Rationale+ 4he State prefers testate to intestate. 0h% 2ec. testamentar% disposition is

the e$press will of the decedent. Intestamentar% is the presumed will of the decedent. 4his is

mere speculation on what the decedent wanted.

Ut res mages #alet 0uam pereat.++ that the thing *e alid than perish.

#.g. 4he word 5chic65 can hae " interpretations+ (1) a girl in w7c case inoperatie *ec. not w7in

the commerce of man and (") sisiw.-- operatie. Interpret according to the second.

Art. 7'. 2%en t%ere is an i!"erfect descri"tion; or $%en no "erson or "ro"erty

e?acty ans$ers t%e descri"tion; !istaes and o!issions !ust be corrected; if t%e error

a""ears fro! t%e conte?t of t%e $i or fro! e?trinsic evidence; e?cuding t%e ora

decarations of t%e testator as to %is intention9 and $%en an uncertainty arises u"on t%e face

of t%e $i; as to t%e a""ication of any of its "rovisions; t%e testatorGs intention is to be

ascertained fro! t%e $ords of t%e $i; taing into consideration t%e circu!stances under

$%ic% it $as !ade; e?cuding suc% ora decarations.

2alane+

&. 5inds of A!biguity:

a. 'atent apparent.-- that w7c appears in the face of the will e.g. 5I gie 17" of m%

estate to one of m% *rothers.5 0ho among the *rothers 4his is patentl% am*iguous.

*. /atent hidden.-- perfectl% unclear on its face. 4he am*iguit% does not appear until%ou appl% the proisions of the will e.g. 5I gie to M the prop. intersecting 2uendia and '. de

Ro$as. 4he am*iguit% is determined onl% when the will is pro*ated. 4hat is when it appears that

I am the owner of all the corners of the lot. ,ow w7c of those lots

. Rue: 3larif% am*iguit% and *e guided *% these+ 4estac% should *e preferred or upheld as far

as practica*le. An% dou*t shall *e resoled in faor of testac%.

-: 1o$ $i you resove t%e a!biguity0 2%at evidence do you ad!it0

A+ >ou can admit an% 6ind of eidence as long as releant and admissi*le according to the Rules

of 3ourt. 4his includes written declarations.

#$cept+ ral declarations of the testator. 0h% 2ec. the% cannot *e questioned *% the

deceased. Also *ec. the% are eas% to fa*ricate.

If inspite of eidence %ou still cannot cure am*iguit% then annul the will.

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If the am*iguit% is patent disregard the will. If latent loo6 into the eidences allowed *%

law.

Art. 7'D. )%e $ords of a $i are to be taen in t%eir ordinary and gra!!atica

sense; uness a cear intention to use t%e! in anot%er sense can be gat%ered; and t%at ot%er

can be ascertained.

)ec%nica $ords in a $i are to be taen in t%eir tec%nica sense; uness t%e conte?t

ceary indicates a contrary intention; or uness it satisfactoriy a""ears t%at t%e $i $as

dra$n soey by t%e testator; and t%at %e $as unac,uainted $it% suc% tec%nica sense.

Art. 7'. )%e invaidity of one of severa dis"ositions contained in a $i does not

resut in t%e invaidity of t%e ot%er dis"ositions; uness it is to be "resu!ed t%at t%e testator

$oud not %ave !ade suc% ot%er dis"ositions if t%e first invaid dis"osition %ad not been

!ade.

2alane+ . Every devise or egacy s%a convey a t%e interest $%ic% t%e testator

coud devise or be,ueat% in t%e "ro"erty dis"osed of; uness it ceary a""ears fro! t%e $i

t%at %e intended to convey a ess interest.

2alane+


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#.g. sa% %ou own a parcel of land. nl% the ownership of the land can *e gien. If the

testator is a usufructuar% he can onl% *equeath his rights as usufructuar% nothing more nothing

less.

3an %ou gie *igger >es. Art. E"E sa%s so. nl% good if the other co-owner is willing

to sell.

+ 2 < and F are co-owners. 2 gae to A the land the% owned in common that is the entire landand full ownership oer it giing more than what he owns. Is this allowed

A+ >es. 4he remed% is to *u% the shares of F and < *ut he can not compel them to *u% his share

there *eing no redemption of the whole land or gie to A the alue of 2;s share if < and F are not

willing to sell their shares.

4he testator ma% gie a lesser interest e.g. I gie the usufruct of m% land to G. 0hat

results :sufruct to G ownership of the land goes *% intestac%.

Art. 7'. )%e vaidity of a $i as to its for! de"ends u"on t%e observance of t%e

a$ in force at t%e ti!e it is !ade.

2alane+

&. 4or!a =aidity

a. 4ime criterion.-- law at the time of e$ecution! su*sequent laws cannot appl%

retroactiel%.

*. 'lace criterion.-- :nder Art C1?-C1 fie (?) choices are aaila*le to the testator+

1. 3itiBenship

". Residence

&. omicile

. #$ecution

?. 'hilippines

. Intrinsic =aiditya. 4ime.-- time of death *ec. of Art.

*. 'lace.-- /aw of citiBenship of decedent.

Subsection .++ Testamentary Capacity and Intent

2alane+ Testamentification acti#a is the capacit% to ma6e a will. Testamentification pasi#a is the

capacit% to inherit *ased on a will.

0ho has testamentar% capacit% All natural persons.

3orporations can not ma6e wills. nl% natural human *eings can ma6e a will.

Art. 7'(. A "ersons $%o are not e?"ressy "ro%ibited by a$ !ay !ae a $i.

2alane+


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2alane+

-: 1o$ do you co!"ute t%e age0

A+ According to the Admin. 3ode age is rec6oned according to the calendar month.

Art. 7'. In order to !ae a $i it is essentia t%at t%e testator be of sound !ind at

t%e ti!e of its e?ecution.

2alane+ "oundness of mindis determined at the time of the e$ecution of the will.

Art. 7''. )o be of sound !ind; it is not necessary t%at t%e testator be in fu

"ossession of a %is reasoning facuties; or t%at %is !ind be $%oy unbroen; uni!"aired;

or uns%attered by disease; in6ury or ot%er cause.

It s%a be sufficient if t%e testator $as abe at t%e ti!e of !aing t%e $i to no$

t%e nature of t%e estate to be dis"osed of; t%e "ro"er ob6ects of %is bounty; and t%e c%aracter

of t%e testa!entary act.

2alane+

&. Soundness of !ind.++ does not require that the testator *e in full possession of reasoningcapacit% or that it *e wholl% un*ro6en unimpaired or unshattered.

. It !eans reaiHation of or no$ing:

a. 4he nature of his estate.-- Jnow what %ou own. 4his does not mean that the testatorhas to 6now the description of his propert% in detail. It is enough that he has more or less a fairl%

accurate idea what his properties are. 4his depends upon the circumstances. Sa% Roc6efeller.

4he idea is less if %ou owned more. the more a person owns the more he is apt to forget what he

has in detail. If %ou thin6 %ou own A%ala *ridge and gies it as a deise something is wrong w7

%ou.

*. 'roper o*=ects of his *ount%.-- Jnow his immediate relaties. #$perience of man6ind

is that %ou gie to people who are attached to %ou *% *lood. Immediate relaties referred to are

spouses parents children *rothers sisters *ut not first cousins. 9irst cousins usuall% are not6nown especiall% if the% lie a*road. 4he nearer the relation the more %ou should 6now. 4he

farther the less the law e$pects of %ou. If the testator can not recogniBe his immediate relaties

then there is something wrong.

c. 3haracter of the testamentar% act.-- Jnow the essence of ma6ing a will. Jnow that

%ou are+ (1) ma6ing a document that disposes (freel% gratuitousl%) of %our propert%! (") to ta6e

effect upon %our death.

,ote+ #en if %ou are insane as to other things as long as %ou 6now these three (&) things %ou

hae testamentar% capacit%.

8. Insanity is reative. It is different in marriage and in contracts. 2ut in wills not 6nowing one

or more of the & mentioned a*oe %ou are considered insane.

Art. DD. )%e a$ "resu!es t%at every "erson is of sound !ind; in t%e absence of

"roof to t%e contrary.

)%e burden of "roof t%at t%e testator $as not of sound !ind at t%e ti!e of !aing

%is dis"osition is on t%e "erson $%o o""oses t%e "robate of t%e $i9 but if t%e testator; one

!ont%; or ess; before !aing %is $i $as "ubicy no$n to be insane; t%e "erson $%o

!aintains t%e vaidity of t%e $i !ust "rove t%at t%e testator !ade it during a ucid

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interva.

2alane+ 4his is the law on presumption of soundness of mind as of the time of the e$ecution of

the will.


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Subsection 8.++ Forms of Wills

2alane+ 5inds of 2is ao$ed under t%e NCC.++ (1) ordinary or notarial will w7c requires an

attestation clause an ac6nowledgement *efore a notar% pu*lic! (") holographic will w7c must *e

entirel% written dated and signed in the handwriting of the testator.

-: 1o$ aboutNon-cupative2is0A+ 4he% are not allowed *% the ,33. 4his 6ind of will is an oral will made *% the testator in

contemplation of death. 4his is allowed among Muslims onl%.

Co!!on Re,uire!ents for bot% inds of $is:

1. It must *e in writing

". #$ecuted in the language or dialect 6nown to the testator.

+ 0hat 6ind of language

A+ It must *e a language (a) spo6en *% a su*stantial num*er of persons! (*) must hae *een

reduced to writing and (c) fairl% su*stantie *od% of literature

+ 0hat is a dialectA+ A dialect is a ariation of tongue.

Art. D>. Every $i !ust be in $riting and e?ecuted in a anguage or diaect no$n

to t%e testator.

2alane+

Re,uire!ents:

1. In writing *ut no specific form is required. It could *e in a mar*le glass or on a wall so long

as there was testamentar% capacit%.

". 0ritten in a language or dialect 6nown to the testator.

SuroBa . 8onrado.-- 4he issue here is whether the will w7c was written in #nglish is

alid. 4he S3 ruled that it is not. 4he testatri$ does not 6now #nglish *eing an Igorot and an

illiterate. *iousl% the will is oid *ec. of non-compliance w7 Art. CD. In a will can %ou

conclude that it is oid where in the attestation clause it was stated that the will was read and

translated to 9ilipino 4he law does not require translation nor interpretation of the language to

the testator *ut that he himself personall% understands the said language.

+ Is it necessar% for a will to state that the testator 6new the language

A+ ,o. #$trinsic7 testimonial eidence ma% proe this.

+ Is direct eidence alwa%s necessar% to proe that the testator 6new the language

A+ ,o. Sometimes circumstantial eidence is sufficient. #.g. a person w7 a college degree doesa will in #nglish. Is it not enough that he studied & leels to proe that he understands #nglish.

Artices D to D'.++ S"ecia Re,uire!ents for Attested 2is.

Art. D. Every $i; ot%er t%an a %oogra"%ic $i; !ust be subscribed at t%e end

t%ereof by t%e testator %i!sef or by t%e testatorGs na!e $ritten by so!e ot%er "erson in %is

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20/151


4he controers% is that what if after the testator affi$ed his thum* mar6 another person

signed on her *ehalf. Attestation clause does not state this. I mean it would not appear in the

attestation clause. 4he S3 said that the person signing on his *ehalf is not an agent and *esides it

was alread% signed *% the testator affi$ing his thum* mar6 and to state this (the affi$ing of the

thum* mar6) in the attestation is a mere surplusage.

(ii)


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(ii) ,era . Rimando.-- Actual seeing is not required. 0hat is required is that

the person required to *e present must hae *een a*le to see the signing if he wanted to do so *%

casting his e%es in the proper direction. 8is line of ision must not *e impeded *% a wall or

curtain. 4his is a question of fact for the lower court to determine. 2lind witnesses are thereforedisqualified.

. Attested and subscribed by at east t%ree credibe $itnessesin t%e testatorGs "resence and

of one anot%er.

a. + 3an the testator sign first not in the witness; presence then let the witnesses sign

,o. Art. CD? requires that the testator should sign at their presence (Hda. de Ramos case.) 4here

is some inconsistenc% here *ut we hae to follow Art. CD?.

+ 3an the alidit% *e affected if the witness signed ahead of the testator

A+ ,o. 'roided it is made in one occasion or transaction. 8oweer in strict theor% it can not

*e done *ec. *efore the testator signed there is no will at all w7c the witnesses can sign and attest

to. If there is more than one transaction then the testator must alwa%s sign ahead of the

witnesses.

*. Attestation Su*scri*ing

--isual act -- manual act

--witness -- sign

4he three witnesses must do *oth attesting and su*scri*ing.

c. 0here must witnesses sign 4his is not clear.

4a*oada . Rosal.-- In this case the witnesses signed at the left hand margin. 'etitioner

contended that the% should hae singed at the same place where the testator signed that is at the

*ottom of the end of the will. 4he S3 was li*eral. 4he purpose of signing at the end is to preentinterpolation. 4he o*=ect of attestation and su*scription which is for identification was met when

the witnesses signed at the left hand margin of the sole page w7c contained all the testamentar%

dispositions. (4his concerned a "-page will w7 the first page containing all the dispositions and

the second page the attestation and ac6nowledgement.) 4he will was signed *% the witnesses at

each and eer% page thereof.

/iteral requirement.-- witnesses must also sign at the end7 last page

In the case.-- as long as signed in the margin J

,ow.-- under or on margin J.

d. 3an witnesses sign w7 thum* mar6 (1) Some sa% >es *ec. it is onl% an act of

authentication! (") some sa% no *ec. one requirement is that witnesses must 6now how to readand write w7c implies that the witness write his name.

8. )%e testator or agent !ust sign every "age e?ce"t t%e ast on t%e eft !argin.

a. 'urpose.-- to preent the disappearance of the pages.

*. 5#er% page e$cept the last.5 0h% not the last 2ec. it will alread% *e signed at the

*ottom.

c. /eft hand margin.-- requirement was made when right hand was not =ustified when

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t%ped.

d. ,ow testator can sign an%where in the page.

(i) each page is signed and authenticated.-- mandator%

(ii) left margin.-- director%.

>. 2itnesses !ust sign eac% and every "age; e?ce"t t%e ast; on t%e eft !argin.

4his is the same as num*er &.

0itnesses ma% sign an%where as long as the% sign

Icasiano . Icasiano.-- In the will su*mitted for pro*ate one page was not signed *% one

of the witnesses. Such failure to sign was due to inadertence since in the cop% all pages were

signed. 4he S3 held that this was not a fatal defect. 3onsidering the circumstances the fact that

the other requirement was complied with and the notarial seal coincided w7 the third page during

the sealing then the will could *e pro*ated. :nusual circumstances w7c e$isted in the case+

(1) there was another cop%

(") inadertence7 oersight

(&) *ecause of the notarial seal.

4he presence of these facts led the S3 to allow the will.

4he general rule howeer is that the failure to sign an% page is a fatal defect.

. A "ages !ust be nu!bered in etters on t%e u""er "art of t%e "age.

a. Mandator%.-- there must *e a method *% w7c the sequence of the pages can *e 6nown!

to preent an insertion or ta6ing out of a page.

*. irector%

(i) Manner it is num*ered- letters num*ers Ara*ic roman numerals etc.! an%

conentional sequence of s%m*ols is allowed

(ii) :pper part

(. Attestation Cause.

a. 4hree things that must *e stated+

(i) the num*er of pages in the will

(ii) the fact that the testator or his agent signed the will in eer% page thereof in

the presence of the instrumental witnesses(iii) that the instrumental witnesses witnessed and signed the will and all the

pages thereof in the presence of the testator and one another.

*. Attestation clause is not a part of the will proper *ec. if contains no dispositions. It ismerel% essential for the formal requirements of a alid will. It is a statement of the witnesses.

c. 0here must witnesses sign At the *ottom in order to preent additions.

3agro . 3agro.-- In the case the page where the attestation clause appears was signed

*% the witnesses on the side and not after the attestation clause. 4he S3 held that this was a fatal

defect. 4he logic is that if there had *een no signature at the *ottom *ut on the sides there will

*e ample room for fraud that is to add in the attestation clause upon the death of the decedent an

essential matter w7c was not there in the first place to alidate it.!

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d. Must the language of the will *e understood or 6nown *% the witnesses ,o. After

all witnesses need not 6now the contents of the will.

+ Is it required that the witnesses 6new the language of the attestation clause+

A+ ,o. So long as it has *een interpreted to them.

+ Must the testator 6now the language of the attestation clauseA+ ,o. 0hat is required of the testator is to 6now the language of the will. An e$press

requirement of Art. CD.

Reason for the a*oe rules+ In order to minimiBe fraud. 4he er% purpose of Art. CD

and CD?. 4he law encourages not discourages will ma6ing. 'recisel% *ec. it wanted to encourage

wills. It sets up safeguards to protect the will.

e. Must the testator sign the attestation clause ,o.

A*angan . A*angan.-- 4his case concerns a will that has onl% " pages. 4he first page

contained the dispositions and was signed *% the testator and the witnesses at the *ottom. 4he

second page contained the attestation clause onl% and was signed *% the witnesses at the *ottom.9rom the case we can learn " things+ 4he first concerns the first page. Since it was signed *% the

testator and the witnesses at the *ottom then there is no need for them to sign at the left margin.

4he second concerns the second page. Since it was alread% signed *% the witnesses at the *ottom

of the attestation clause then there is no need for them to sign on the margin.

+ Must an attested will *e dated

A+ ,o. /ac6 of date does not annul an attested will. 2ut a holographic will must *e dated. (Art.

C1D.)

7. NotariHation.++ A will is a pu*lic instrument that is wh% it must notariBed.

Art. D(. Every $i !ust be acno$edged before a notary "ubic by t%e testatorand t%e $itnesses. )%e notary "ubic s%a not be re,uired to retain a co"y of t%e $i; or fie

anot%er $it% t%e office of t%e Cer of Court.

2alane+

1. 3ruB . Hillasor.-- 4his case inoles a will wherein the notar% pu*lic was also one of the

three instrumental witnesses. id the will compl% w7 the requirement of & witnesses ,o. 4heS3 gae " reasons+ (1) 4he notar% pu*lic can not *e an oath witness and at the same time an

oath ta6er. It is impossi*le for him to ac6nowledge *efore himself! (") the aim of the notar%

pu*lic to insure the trustworthiness of the instrument would *e lost *ec. he will tr% to insure the

alidit% of his own act.


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&. Faellana . /edesma.-- 4he case deals w7 the question of whether or not the

ac6nowledgement of the will should *e done on the same occasion as the e$ecution of the will.

4he S3 said no. 4he law does not require that e$ecution and ac6nowledgement *e done on the

same occasion. Ac6nowledgement ma% *e alidl% done after e$ecution. In fact the testator andthe witnesses do not hae to ac6nowledge together. >ou can ac6nowledge one *% one. 4he law

does not require it to *e made simultaneousl%. As long as the testator maintains his testamentar%capacit% and the witnesses maintain their witnessing capacit% until the last person ac6nowledges

then the will is alid. 8oweer if the testator dies *efore the last person ac6nowledges then the

will is not alid. 4he will is considered as *eing unac6nowledged.

. uestions.

1+ 3an a witness *e an agent who will sign for the testator

A1+ (a) >es. 4here is no prohi*ition.

(*) ,o. 4he testator must sign *efore & witnesses. 8e cannot sign *efore

himself.

4o *e safe do not let this happen. As the law%er *e sure %ou hae at least & witnesses.

"+ Is there an% particular order of signingA"+ (a) ,o. As long as the signing is done on one occasion or one continuing

transaction.

(*) >es. If the signing is not done on one occasion or transaction. In such a

case there is nothing that the witness is attesting to.

Artices D7 and D are s"ecia additiona re,uire!ents $%ic% are !andatory.

Art. D7. If t%e testator be deaf; or a deaf+!ute; %e !ust "ersonay read t%e $i; if

abe to do so9 ot%er$ise; %e s%a designate t$o "ersons to read it and co!!unicate to %i!;in so!e "racticabe !anner; t%e contents t%ereof.

2alane+ 4his proision lists down a special requirement if a notarial will is e$ecuted *% a deaf-

mute testator.

1. 4here are two cases contemplated+ (1) If the testator can read then he must read the willpersonall%! (") If illiterate then " persons must read the will and communicate to him the

meaning of the will in some practica*le manner.

". 4he law is not clear if the " persons reading it to him would do it separatel% or in consonance.

&. 4hese additional requirements are mandator% *% perfect analog% to the case of


25/151


1. If the testator is *lind the will must *e read to him twice+ (1) *% one of the su*scri*ing

witnesses! and (") *% the notar% pu*lic not necessaril% in that order.

". a. Is the proision mandator% >es. If this is not followed the will is oid. (es. In the

a*sence of w7c the will is oid. Such fact or reading must *e proen *% eidence during the

pro*ate proceedings.

&. 'urpose+ 4he reading is mandator% for the purpose of ma6ing 6nown to the testator the

proision of the will so that he ma% o*=ect if it is not in accordance w7 his wishes.

Art. D'. In t%e absence of bad fait%; forgery; or fraud; or undue and i!"ro"er

"ressure and infuence; defects and i!"erfections in t%e for! of attestation or in t%eanguage used t%erein s%a not render t%e $i invaid if it is "roved t%at t%e $i $as in fact

e?ecuted and attested in substantia co!"iance $it% a t%e re,uire!ents of artice D.

2alane+ 4his is a li*eraliBation rule an attempt to li*eraliBe Articles CD to CDC. Su*stantialcompliance w7 Articles CD? and CD@ will alidate the will despite some defects in the attestation

clause.

/oo6ing at Art. CDE %ou get the impression of utmost li*eraliBation. 0e can not

determine how li*eral we can *e or can we go. 4his article does not gie a clear rule. F2/ Re%es

and 4olentino suggest that %ou ma6e a distinction.

.++ Provisions on Holographic Wills.

Art. &D. A "erson !ay e?ecute a %oogra"%ic $i $%ic% !ust be entirey $ritten;

dated; and signed by t%e %and of t%e testator %i!sef. It is sub6ect to no ot%er for!; and !ay

be !ade in or out of t%e P%ii""ines; and need not be $itnessed.

2alane+

A. Adantages+

1. 3heaper simple easier to reise no notar% pu*lic needed

". A*solute secrec% is guaranteed- onl% %ou the father and the mem*ers of the famil%

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will 6now its contents.

isadantages+

1. 'recisel% *ec. it guarantees secrec% and is simpler it is also easier to falsif%-- less

people %ou need to collude w7-- onl% %ourself *ut in attested will %ou need at least four () otherpeople.

". It ma% not e$press testator;s wishes due to fault% e$pression&. ,o protection against causes itiating consent *ec. there are no witnesses-- danger is

higher.

. oes not reeal testamentar% capacit% of testator due to lac6 of witnesses

?. #asier to conceal than an attested will.-- %ou can allege that no will was made

@. .-- must *e *% the hand of the testator himself.

1. 0ritten entirel% *% the testator

#.g. (a) If partl% *% the testator and partl% *% another person HI

(*) If another person wrote an additional part w7o 6nowledge of the testator the

will is HA/I *ut the addition is HI.

(c) If another person wrote an additional part w7 the 6nowledge of the testator

HI.

". ated

a. (1) Ro$as . de Fesus.-- n the will the date was written as 59e*.7 @1.5 Is it

alid >es.


27/151


or not. If deli*erate the will is considered not dated and the will is oid. If not deli*erate the

date will *e considered as the true date.

c. ate is usuall% written *% putting the da% month and %ear. 8oweer other wa%s ma%

*e adopted such as 53hristmas da% of 1EE?.5

&. Signature.-- 3ommentators hae said that the signature must consist of the testator;swriting his name down. 4he reason for this is since he is a*le to write his will then he is literate

enough to write his name.

3. 1. Are holographic wills in letters allowed >es proided there is an intent on the part of

the testator to dispose of the propert% in the letters and the & requisites are present.

#.g. 5I gie %ou 17" of m% estate as proided for in the document I 6ept in the safe.5

4his is a holographic will *ec. the letter does not in itself dispose of the propert%.

". 3an a *lind testator ma6e a holographic will >es. 4here is no form required. 0hat

is important is the presence of the & requisites.

Art. &&. In t%e "robate of a %oogra"%ic $i; it s%a be necessary t%at at east one

$itness $%o no$s t%e %and$riting and signature of t%e testator e?"icity decare t%at t%e

$i and t%e signature are in t%e %and$riting of t%e testator. If t%e $i is contested; at east

t%ree of suc% $itnesses s%a be re,uired.

In t%e absence of any co!"etent $itness referred to in t%e "receding "aragra"%; and

if t%e court dee! it necessary; e?"ert testi!ony !ay be resorted to.

2alane+

Re,uire!ents in t%e Probate of 1oogra"%ic 2is:

1. ocumentar% Requirement

a. ou are presented in the pro*ate court the *lood% test papers of A in 3iil /aw =ust

to show the handwriting of A *ut %ou do not hae the will. 8ow will %ou compare when %ou do

not hae an% will to *e compared. 2ut if the will is there I would *e the first one to proe %ourhandwriting *% showing %our *lood% test papers. (2alane.)

#$ception+ If there is an e$isting cop% or duplicate photostatic $ero$.

Rodelas . AranBa.-- In the case the proponent of the will sought to present a cop% of the

holographic will to the court. 4he court allowed the production of the cop%. 4he *asis of this

acceptance is the footnote no. C in the case of an where the court said that 5perhaps if a

photostatic cop% is presented...5

4he merit of the Rodelas case is dou*tful.. Authenticit% of the will is *ased on the

handwriting and the signature. 8andwriting e$perts use as a *ases the penlifts of the writer. In

photocopies penlifts are not discerni*le and so the e$perts are depried of their *asis in

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determining the authenticit% of the will.

*. /ost holographic wills can not *e pro*ated een *% the testimonies of the witnesses.

4he reason is that the will itself is the onl% proof of its authenticit%.

". 4estimonial Requirement

a. :ncontested will.-- onl% one witness to identif% the signature and handwriting of thetestator.

*. 3ontested will.-- three witnesses to identif% the signature and handwriting of the

testator.

ABaola . Singson.-- In the case the oppositors of the will contested the will on the

ground that it was e$ecuted through fraud. 4he% howeer admitted its due e$ecution. uring

the case the proponent presented onl% one witness to identif% the signature and handwriting of

the testator. Is one witness sufficient considering there is an oppositor to the will

>es. 4he S3 held that one witness is sufficient. 0hat the law enisions is that the

genuineness of the handwriting and signature *e contested. 3ontested holographic will refers to

the challenge *% the oppossitors that the will is not in the handwriting of the deceased. 4he

oppossitors in this case did not challenge the handwriting of the deceased. 4heir ground for

opposing pro*ate is that the will was e$ecuted through fraud and improper and undue influence.8ence the pro*ate required onl% one witness.

4he authenticit% of the will is not contested. 4herefore the will itself not *eing

contested was that of the testator. 4he oppossitors here precisel% admit that authenticit% of the

will *ut oppose on the ground that there is fraud or undue influence initiated upon her in thee$ecution of the will. 8ence it is uncontested.

2biter dictum3 4he three witness proision for contested holographic will is merel%

director%. 4he court upon satisf%ing itself of the authenticit% of the will can require one or ten

witnesses. 4he =udge 6nows *est. 4he second paragraph of Art. C11 gies the court discretion

hence the director% effect of the Art.-- (a) it is a matter of qualit% and not quantit%! (*) to require

& witnesses ma6es it worse than treason w7c requires onl% " witnesses.

0hich is *etter ne who testif% *ut w7 unquestioned credi*ilit% or "D AHS#3M

witnesses So do not rel% on the quantit%. 4he case of ABaola is merel% a guide and interpretsArt. C11 for us. It is not mandator%. It alwa%s depends on the =udge.

Art. &. In %oogra"%ic $is; t%e dis"ositions of t%e testator $ritten beo$ %is

signature !ust be dated and signed by %i! in order to !ae t%e! vaid as testa!entary

dis"ositions.

2alane+ 4o authenticate additional dispositions the same must *e signed and dated *% the

testator.

Art. &8. 2%en a nu!ber of dis"ositions a""earing in a %oogra"%ic $i are signed$it%out being dated; and t%e ast dis"osition %as a signature and date; suc% date vaidates

t%e dis"ositions "receding it; $%atever be t%e ti!e of "rior dis"ositions.

2alane+ If a will has seeral additions the testator has two options+

(1) Sign each disposition and sign and date the last! or

(") Sign and date each one of the additions.

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Art. &>. In case of any insertion; canceation; erasure or ateration in a

%oogra"%ic $i; t%e testator !ust aut%enticate t%e sa!e by %is fu signature.

2alane+ Insertion; Canceation; Erasure; or Ateration.++ Authenticate *% 5full signature5

that is in the manner the testator usuall% signs his name.

Jalaw . Reloa.-- In the case there were " alterations. In the first alteration the nameof Rosa as sole heir was crossed out and


30/151


c. 9oreigner ma6es a will here.

d. 9oreigner ma6es a will a*road.

". 0hat law goerns the alidit% of will

a. Intrinsic.-- the national law of the testator*. 4ime.-- At the time of death.

c. 'lace.-- the same for 9ilipinos and aliens. 4he same rule whereer %ou ma6e %ourwill. >ou hae fie (?) choices-- the law of

1. 4he testator;s citiBenship

". 4estator;s domicile

&. 'lace of e$ecution

. 4estator;s residence

?. 'hilippines.

#$ample an Argentine citiBen domiciled in 9rance residing in 2elgium isiting the 'hils. In

Fapan he e$ecuted a will. 8e ma% choose among the fie (?) places as to what law shall goern

the formal requirements of his will.

If Ru*en e$ecuted a will in Ma6ati he will hae to follow 'hilippine law *ec. all thechoices points to that onl%.

Art. &. )$o or !ore "ersons cannot !ae a $i 6ointy; or in t%e sa!e instru!ent;

eit%er for t%eir reci"roca benefit or for t%e benefit of a t%ird "erson.

2alane+ &. *efinitions.++ (a) A =oint will is one document w7c seres as the will of " persons!

this is prohi*ited! (*) A reciprocal will inoles " instruments reciprocall% ma6ing each other

heir! this is not prohi*ited.

. Ee!ents of a 3oint 2i: (a) one single instrument! (*) it is the will of " or more persons.

8. -: 2%y are 3oint 2is Pro%ibited0

A+ (a) It encourages undue influence murder or attempt to 6ill the other *ec.

generall% =oint wills *enefit each other.

(*) It runs counter to the idea that wills are reoca*le. It ma6es reocation more

difficult. #.g. tearing it up-- destro%s the will of another.(c) It undermines the personal element of a will.-- It *ecomes a multiple will.

>. E?a!"es:

a. ne sheet of paper. n each side is a will of one person. Is it alid >es *ec. thereare " documents.

*. ne sheet of paper. n the front page on the upper half is a will of A. n the *ottomhalf is the will of 2. Is it alid >es. 4his is not a =oint will *ec. there are still " documents.

. In


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Art. &'. 2is; "ro%ibited by t%e "receding artice; e?ecuted by 4ii"inos in a

foreign country s%a not be vaid in t%e P%ii""ines; even t%oug% aut%oriHed by t%e a$s of

t%e country $%ere t%ey !ay %ave been e?ecuted.

2alane+

1. 4his proision is an e$ception to the rule enunciated in Articles C1? to C1 that for 9ilipinosas long as the will is alid in the place of e$ecution then it is alid in the 'hils.

". 9ilipinos whether here or a*road cannot e$ecute =oint wills. It is against pu*lic polic%.

&. 3an aliens e$ecute =oint wills

a. If e$ecuted in the countr% where it is allowed >#S it ma% *e pro*ated here.

*. If made here and their countr% allows them to do this 4here are " iews on this+

(i) >es follow the personal law.

(ii) ,o *ec. it is against pu*lic polic%.

Subsection >.++ Witnesses to Wills.

Art. D. Any "erson of sound !ind and of t%e age of eig%teen years or !ore; and

not bind; deaf or du!b; and abe to read and $rite; !ay be a $itness to t%e e?ecution of a

$i !entioned in artice D of t%is Code.

Art. &. )%e foo$ing are dis,uaified fro! being $itnesses to a $i:

&/ Any "erson not do!icied in t%e P%ii""ines9

/ )%ose $%o %ave been convicted of fasification of a docu!ent; "er6ury or fase

testi!ony.

2alane+ Articles C"D and C"1 ma% *e ta6en together. 4hese proisions are applica*le onl% toattested wills and not to holographic wills.

Si? -uaifications of 2itnesses to 2is or Re,uisites for Co!"etence to be a 2itness:

a. "ound -ind.++ A*ilit% to comprehend what he is doing same as soundness of mind

for contracts.*. !t least (4 yrs or o#er.++ 3omputed according to the calendar %ear.

c. 5ot Blind, deaf and mute dumb.++ 4his is important *ec. these are the three senses

%ou use for witnessing.

d. !ble to read and write.-- /iterate. Some commentators sa% thum* mar6 is not

sufficient for witnesses! he has to affi$ his signature.

e. 6e must be domiciled in the Philippines.

+ If a will is e$ecuted a*road in a place where there is no one domiciled in the 'hils.

although there are 9ilipino citiBens not domiciled in the 'hils. does domicile requirement still

appl%

A+ 4here are two answers for all theor%

1. >es *ec. the law does not distinguish

". ,o there is an implied qualification.-- 4he rule applies in wills e$ecuted in

the 'hils.

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4o *e practical there are two solutions+

1. >ou hae ? choices as to w7c law goerns. 3hoose an%.

". Fust e$ecute a holographic will.

f. 6e must not ha#e been con#icted of falsification of document, per/ury or falsetestimony.

+ 0h% not rape

A+ 2ec. chastit% has nothing to do w7 truthfulness. 4ruthfulness is the gauge.


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,o it disqualifies 2 to inherit. 4he legac% is oid.

(*) If there were witnesses. 4he legac% is gien to 2. Is the legac% alid >es *ec.

there are & other witnesses.

(c) If there are four witnesses each one is gien a deise or legac%.

(i) Are the% competent to *e witnesses >es.(ii) Are *equests to them alid 4here are " iews+

1. >es. 2ec. for each of them there are three other witnesses. (/i*eraliew.)

". ,o. 2ec. this is an o*ious circumention of Art. C"&. Art. C"& has

for its purpose the preention of collusion. (Strict iew.)

Art. >. A !ere c%arge on t%e estate of t%e testator for t%e "ay!ent of debts due at

t%e ti!e of t%e testatorGs deat% does not "revent %is creditors fro! being co!"etent

$itnesses to %is $i.

Subsection .++ Codicils and Incorporation "y #eference.

Art. . A codici is a su""e!ent or addition to a $i; !ade after t%e e?ecution of

a $i and anne?ed to be taen as a "art t%ereof; by $%ic% any dis"osition !ade in t%e

origina $i is e?"ained; added to; or atered.

2alane+

#.g. In a will 5I gie m% car to A Ful% " 1EE?.5 2ec. I want to specif% w7c of m% cars I ma6e

a will stating 5In m% will of Ful% " 1EE? I gae a car to A. I want to clarif% that I am giing him

m% 2M0 w7 plate num*er .......5

+ 0hen is a su*sequent document a codicil and when is it another will

A+ 1. It is a codicil when it e$plains adds to or alters a proision in a prior will.". It is another will if it ma6es an independent disposition.

#.g. Fune 1 1EE? 5I gie m% car to A.5

Ful% 1 1EE? 5I gie m% house to 2.5 4his is a second will.

9our uestions+

1. If original will is attested can %ou ma6e an attested codicil". If original will is attested can %ou ma6e a holographic codicil

&. If original will is holographic can %ou ma6e a holographic codicil

. If the original will is holographic can %ou ma6e an attested codicil

A+ >es to all. 4he form of a codicil does not hae to conform to the form of the will. A will does

not impose its form on the codicil. As long as the codicil complies w7 the form of wills it isalid. (Art. C"@.)

Art. (. In order t%at a codici !ay be effective; it s%a be e?ecuted as in t%e case

of a $i.

2alane+ 0hether %ou call the second document a will or a codicil does not reall% matter. It is all

theoretical. It is onl% a matter of terminologies. 4he% *oth require the formal requisites of a will.

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Art. 7. If a $i; e?ecuted as re,uired by t%is Code; incor"orates into itsef by

reference any docu!ent or "a"er; suc% docu!ent or "a"er s%a not be considered a "art of

t%e $i uness t%e foo$ing re,uisites are "resent:

&/ )%e docu!ent or "a"er referred to in t%e $i !ust be in e?istence at t%e ti!e oft%e e?ecution of t%e $i9

/ )%e $i !ust ceary describe and identify t%e sa!e; stating a!ong ot%er t%ings

t%e nu!ber of "ages t%ereof9

8/ It !ust be identified by cear and satisfactory "roof as t%e docu!ent or "a"er

referred to t%erein9 and

>/ It !ust be signed by t%e testator and t%e $itnesses on eac% and every "age;

e?ce"t in case of vou!inous boos of account or inventories.

2alane+

+ 0hat do %ou incorporate

A+


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+ 3an the testator ma6e a will irreoca*le

A+ ,o. As long as he is alie he can reo6e will at pleasure. istinguish this from a donation

inter #i#os w7c cannot *e reo6ed at pleasure *% the donor.

Art. '. A revocation done outside t%e P%ii""ines; by a "erson $%o does not %ave%is do!icie in t%is country; is vaid $%en it is done according to t%e a$ of t%e "ace $%ere

t%e $i $as !ade; or according to t%e a$ of t%e "ace in $%ic% t%e testator %ad %is do!icie

at t%e ti!e9 and if t%e revocation taes "ace in t%is country; $%en it is in accordance $it%

t%e "rovisions of t%is Code.

2alane+ 4his article is incomplete. It does not coer all situations.

+ 8ow do %ou reo6e 0hat law goerns reocation

A+ It depends where the reocation is made+

1. If done outside the 'hils+

a. If the testator is not domiciled in the 'hils+

(i) the law of the place where the will was made(ii) the law of the place where the testator was domiciled at the time of

the reocation

*. If the testator is domiciled in the 'hils+(i) 'hil. law *ec. his domicile is here.

(ii) /aw of the place of reocation *ec. of Art. 1 ,33

". If done inside the 'hils. follow 'hil. law.

Art. 8D. No $i s%a be revoed e?ce"t in t%e foo$ing cases:

&/ By i!"ication of a$9 or/ By so!e $i; codici; or ot%er $riting e?ecuted as "rovided in case of $is9 or

8/ By burning; tearing; canceing; or obiterating t%e $i $it% t%e intention of

revoing it; by t%e testator %i!sef; or by so!e ot%er "erson in %is "resence; and by %is

e?"ress direction. If burned; torn; canceed; or obiterated by so!e ot%er "erson; $it%out

t%e e?"ress direction of t%e testator; t%e $i !ay sti be estabis%ed; and t%e estate

distributed in accordance t%ere$it%; if its contents; and due e?ecution; and t%e fact of its

unaut%oriHed destruction; canceation; or obiteration are estabis%ed according to t%e

Rues of Court.

2alane+

)%ree 2ays of Revoing a 2i:

&. By I!"ication of La$.

a. Art. 1D&".-- :nworthiness to succeed e.g. I instituted ' as heiress after which she

6illed m% parents. 4he will instituting her as heiress is reo6ed *% implication of law.

*. Art. E?.-- eals w7 the deise or legac%.-- transformation of the propert% *% the

testator e.g. If I conerted to a su*diision the fishpond w7c I gae to 4 as deise.

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c. Art. [email protected] /egal separation. 4he guilt% spouse who gae the ground for legal

separation will not inherit and an%thing gien to her is impliedl% ta6en awa% *% law.

d. Art. C?.-- Preteritionannuls the institution of heirs.

. By Subse,uent Instru!ent; 2i or Codici:

a. Requisites+1. 3apacit% to reo6e.-- Insane persons can not reo6e

". Reo6ing instrument will or codicil must *e alid

&. Reo6ing instrument will or codicil must contain either a reo6ing clause

(e$press) or *e incompati*le (implied)

. Reo6ing will must *e pro*ated *ec. w7o pro*ating it can not hae the effect

of reocation.

*. Such reocation ma% either *e+

1. #$press.-- 3ontains an e$press reocator% clause

". Implied.-- 'roisions of su*sequent will are incompati*le with the proisions

of the prior will. It ma% either *e+ (i) total when all the proisions are incompati*le! (ii) partial

when onl% some proisions are incompati*le.

8. By "%ysica *estruction.++ 4his is the most unlimited wa% of reocation *ec. it coers an%

act of ph%sical destruction. It is not an e$clusie list *ut more or less coers eer%thing

Ee!ents:

a. Corpus.-- Act of destruction-- completion of intent-- all acts needed to reo6e hae

*een done

+ Must it *e total destruction

A+ ,o. As long as eidence on the face of the will shows act to reo6e.

*. !nimus.-- Intent and capacit% to reo6e.

2oth elements must concur.

#$amples+

a. A *lind testator as6ed his nurse to gie him his will. 4he nurse gae him his old

letters. 4he testator thin6ing it is his will threw it into the fire. In this case there is animus*utno corpus. Reocation is ineffectie.

*. I threw m% ciil law e$ams. 2ut it turned out it was m% will. Reocation is not alid.

4here is no animus or intent to reo6e.

Notes:1. 8ow much destruction of the corpus do %ou need >ou need the ph%sical destruction

of the will itself. oes it mean total destruction of the will so that nothing will *e left ,o. As

long as there is eidence of ph%sical destruction li6e let us sa% edges were *urned. If onl% the

coer was *urned there is no reocation-- no corpus. If the destruction was not total there is

still reocation as long as there is7 was eidence of the destruction of the will the destruction

need not *e total.

". A man can not reo6e the will effectiel% *ec. of insanit%.

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&. In case of tearing there must *e intent to reo6e. 4hat is the testator had completed

what he intended to *e done. If in the act of tearing the testator was dissuaded not to continue is

there reocation ,o *ec. the testator was not a*le to do what he intended to *e done.

#.g. If the testator tore the will into " and when he was a*out to tear it into quarters theheir as6ed for his forgieness. 4he testator said+ 5Fust paste the will.5 Is there reocation

,one. 4here is no animus*ec. he was not a*le to complete what he intended to do.

. If the testator totall% destro%ed the will and he changed his mind is there reocation

>es. 4he act was alread% consummated. 8is remed% is to e$ecute another will.

Maloto . 3A.-- In the case the estate was distri*uted equall% *% intestac% *et. the

heirs. Su*sequentl% a will was found. In the will more was gien to " of the heirs. As such the

" who got more sought the pro*ate of the will. 4he other " o*=ected claiming that the will had

*een reo6ed. 4he issue is whether or not there had *een a alid reocation. 4he S3 held no.

0hile there ma% hae *een intent to reo6e there was no corpus. 4here is no eidence to show

that what was reo6ed was the will of the testator. Also the destruction was not proen to hae

*een done in the presence and under the e$pression of the testator.


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4he institution of A is still reo6ed. 8ouse and lot will go *% intestac%. 4he first will not *e

reied *% the reason of the inoperation of the reo6ing will due to its renunciation or the

incapacit% of heirs deisees or legatees in it. 4he rationale is that the second will was alid

e$cept that it was rendered inoperatie.

#$ception+ octrine of ependent Relatie Reocation.-- Reocation of the first will is

made *% the testator to *e dependent on the capacit% and acceptance of the heirs deisees andlegatees of the su*sequent will. 8ow do %ou 6now 4he testator said so in the will.

#.g. 0ill 1.-- 5I gie m% car to A.5 (1EE?)

0ill ".-- 5I gie m% car to 2. Such legac% is dependent upon the capacit% and

acceptance of 2.5 (1EE)

4he institution of 2 is conditional.

'rimar% institution-- 2! Secondar% institution-- A.

Art. 88. A revocation of a $i based on a fase cause or an iega cause is nu and

void.

2alane+ Is this article iolatie of the right to reo6e een without reason ,o. 4he testatorneed not hae a reason to reo6e his will. 8e ma% reo6e it capriciousl% or whimsicall% at

pleasure. 2ut if the reocation is due to mista6e or is *ased on some cause and such cause was

later proen to *e false then the reocation is oid *ec. all transactions *ased on mista6e are

itiated that is %ou are acting on a false cause of facts. 4he cause howeer must *e stated in thewill. 4his shows respect for the freedom of the testator to reo6e that his real intent *e followed.

#.g. a. 2ased on fact (6ind of dependent relatie reocation *ec. he would reo6e

onl% if his information is true.)-- I instituted 3 as m% heir. /ater I heard that it was 3 who 6illed

m% *rother in aao. So I reo6ed m% will. 2ut it turned out that 3 did not do it. Reocation

therefore is oid.

*. 2ased on impression.-- I gie m% car to 2 who is from Manila. I reo6e m%

designation of 2 *ec. I hae =ust found out that she is from ueBon and I hate people from

ueBon *ec. the% are arrogant and o*no$ious. Is the reocation alid >es. 2ec. the reocationis *ased on impression or is out of caprice pre=udice or unfounded ethnic opinion.

Ee!ents for Revocation to be Ino"erative:

a. 3ause must *e a concrete and a factual one!*. 3ause must *e false!

c. 4estator must not 6now of its falsit%!

d. It appears on the face of the will that the testator is reo6ing *ec. of the false cause.

Art. 8>. )%e recognition of an iegiti!ate c%id does not ose its ega effect; event%oug% t%e $i $%erein it $as !ade s%oud be revoed.

2alane+ 4his proision is particularl% true under the ,33 *efore the enactment of the 93. ne

of the modes of recognition was *% a will.

#en if the will is reo6ed recognition is alid.

Recognition is irreoca*le. 0h% 2ec. it is not a testamentar% act *ut an act w7c under

the law admits a relationship of paternit%.

4he same rule is still applica*le under the 93.

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Subsection 7.++ #epu"lication and #evival of Wills..

Art. 8. )%e testator cannot re"ubis%; $it%out re"roducing in a subse,uent $i;

t%e dis"ositions contained in a "revious one $%ic% is void as to its for!..

Art. 8(. )%e e?ecution of a codici referring to a "revious $i %as t%e effect of

re"ubis%ing t%e $i as !odified by t%e codici.

2alane+ Art. C&? is deried from Argentine 3ode. If %ou want to reie a will w7c is oid as to

its form %ou must repu*lish the will and =ust cannot refer to it. #$ample Attested will w7 =ust "

witnesses. >ou discoered the mista6e later on. >ou cannot =ust repu*lish it. >ou hae to write it

all oer again.

n the other hand Art. C&@ is deried from the 3alifornia code. 4he mere reference to a

preious will will reie itResult of the two articles+ 3haosK

8ow to reconcile /oo6 at 4olentino.

Art. C&? e$plicitl% refers to wills oid as to form. 3ause of the nullit% is the defect in theform. >ou must reproduce the dispositions in a su*sequent will.

Art. C&@ applies if the reason of nullit% is other than defectie form e.g. :nderage

testator fraud under duress. >ou ma% repu*lish or refer to the will. #.g. 5I here*% repu*lish and

reie m% will of ct. 1? 1EE?...5 Said repu*lication was made after the discoer% of the reason

of the nullit%.

Art. 87. If after !aing a $i; t%e testator !aes a second $i e?"ressy revoing

t%e first; t%e revocation of t%e second $i does not revive t%e first $i; $%ic% can be revived

ony by anot%er $i or codici.

2alane+A. 4his proision is craB%KKK

Situation+ G ma6es a will in 1EE& (0ill 1)

G ma6es a will in 1EE e$pressl% reo6ing will 1. (0ill ".)G ma6es a will in 1EE? reo6ing will ". (0ill &.)

Reocation&nstanter++ instantl%

0ill 1 is not reied *ec. its reocation was instant

#$ception+ 1. 0ill & e$pressl% reies 0ill 1.

". will & reproduces proisions of 0ill 1.

0h% craB% 2ec. this is contrar% to esta*lished principles in succession.

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Succession 'rinciple Art. C&

1. 0ill ta6es effect upon death. 1.


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#$ception+ 4here is an intrinsic defect on the face of the will.

,epomoceno . 3A.-- In the case the testator left his entire estate to his legal wife and

children *ut deised the free portion to his common-law wife. 0hen the common-law wife

sought the pro*ate of the will the 3A declared the will alid *ut held the deise to the common-law wife null and oid for *eing contrar% to Art. &E of the ,33. In effect the court ruled on

the intrinsic alidit% of the will in the pro*ate proceedings. 0as the holding of the 3A correct4he S3 held that it was correct. Although the general rule is that onl% e$trinsic alidit% could *e

at issue during the pro*ate this rule is not a*solute.


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1. 9ormalities.-- Art. CD? et seq.

". Insanit%.-- Art. EE

&. 9orce.-- iolence-- Art. 1&&? par. 1

uress-- intimidation-- Art. 1&&? par. ". :ndue and Improper pressure and influence.-- Art. 1&&

?. 9raud.-- Art. 1&&C@. Mista6e.-- Art. 1&&1.

Section .++ Institution of Heir.

Art. >D. Institution of %eir is an act by virtue of $%ic% a testator designates in %is

$i t%e "erson or "ersons $%o are to succeed %i! in %is "ro"erty and trans!issibe rig%ts

and obigations.

2alane+ 4he rules on institution of heir also appl% to deisees and legatees.

Art. >&. A $i s%a be vaid even t%oug% it s%oud contain an institution of an %eir;

or suc% institution s%oud not co!"rise t%e entire estate; and even t%oug% t%e "erson so

instituted s%oud not acce"t t%e in%eritance or s%oud be inaca"acitated to succeed.

In suc% cases t%e testa!entary dis"ositions !ade in accordance $it% a$ s%a be

co!"ied $it% and t%e re!ainder of t%e estate s%a "ass to t%e ega %eirs.

2alane+ 1. #en if there is no institution of an heir the will is alid *ut it is useless unless it

ac6nowledges an illegitimate child or disinherits a compulsor% heir.

". If the institution does not coer the entire estate the e$cess shall either go to the compulsor%heirs or *% intestac%. (Mi$ed succession.)

&. 8ow much can the testator dispose of from his estate 8e can dispose all e$cept when there

are compulsor% heirs. In such a case he can onl% dispose of the free portion.

. . One $%o %as no co!"usory %eirs !ay dis"ose by $i of a %is estate or

any "art of it in favor of any "erson %aving ca"acity to succeed.

One $%o %as co!"usory %eirs !ay dis"ose of %is estate "rovided %e does not

contravene t%e "rovisions of t%is Code $it% regard to t%e egiti!e of said %eirs.

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so!e event or circu!stance %is identity beco!es certain. 1o$ever; a dis"osition in favor of

a definite cass or grou" of "ersons s%a be vaid.

2alane+ 1. 3an the testator gie his entire free portion to a person he does not personall% 6now

>es.4he 5un6nown person5 referred to in this article refers to one who cannot *e identified

and not to one whom the testator does not personall% 6now. 4he *asis of the nullit% is theina*ilit% to determine the intention of the testator.

#.g. 54o someone who cares.5 -- Hoid.

54o someone w7 ten e%es.5 -- Hoid this refers to someone who does not e$ist.

4his designation is alid if the identit% is not 6nown at the time of ma6ing the will *ut

can *e 6nown in the future *% circumstances. 8ow 2% esta*lishing certain criteria at the proper

time e.g. 9irst 9ilipino who wins a gold medal in the l%mpics.

". 3lass designation is alid class in 3iil /aw Reiew :' 3ollege of /aw 1EE?-1EE@.

Mass institution+ see Articles C@ CC (*rothers and sisters) CE (designation of aperson and his children) E?E (relaties) 1D"E (pra%ers and pious wor6s for the *enefit of his

soul) and 1D&D (poor.)

Art. >(. 1eirs instituted $it%out designation of s%ares s%a in%erit in e,ua "arts.

2alane+ 4his is a presumption of equalit%. 4his supports the underl%ing principle of this chapter

w7c is respect for the wishes of the testator.

Art. >7. 2%en t%e testator institutes so!e %eirs individuay and ot%ers coectivey

as $%en %e says; I designate as !y %eirs A and B; and t%e c%idren of C; t%ose coectiveydesignated s%a be considered as individuay instituted; uness it ceary a""ears t%at t%e

intention of t%e testator $as ot%er$ise.

2alane+ 'ro*lem+ 4he testator proides 5I gie 17& of m% estate to A 2 and 3.5 3 is a class of

people. 8ow do %ou diide the estate

A+ It is not to *e interpreted as 17& to A 2 and class 3. Rather the 17& of the estateshould *e diided equall% among A 2 and the mem*ers of class 3. 0h% 2ec. the presumption

is that the mem*ers of 3 were indiiduall% designated.

2ut if the testator sa%s 5I gie 17& of m% estate to A 2 and class 3 as a unit then 17& will

*e diided equall% among A 2 and class 3.

Art. >. If t%e testator s%oud institute %is brot%ers and sisters; and %e %as so!e of

fu bood and ot%ers of %af bood; t%e in%eritance s%a be distributed e,uay; uness a

different intention a""ears.

2alane+ 9ull *lood means same parents! half *lood means onl% one parent is the same.


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(*) If the% inherit *% intestac%. Ratio is "+1 in faor of full *lood

*rothers and sisters. (Art. 1DD@.)

Art. >'. 2%en t%e testator cas to t%e succession a "erson and %is c%idren; t%ey

are a dee!ed to %ave been instituted si!utaneousy and not successivey.

2alane+ 4his article is a species of Art. C.

Successiel% refers tofideicommisary.

Art. D. )%e state!ent of a fase cause for t%e institution of an %eir s%a be

considered as not $ritten; uness it a""ears fro! t%e $i t%at t%e testator $oud not %ave

!ade suc% institution if %e %ad no$n t%e fasity of suc% cause.

2alane+


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to G and the "7& will go *% intestac%.

*. 4estator has compulsor% heirs-- part of the free portion not disposed of *% will goes

*% intestac%.

#.g. 4wo legitimate children and testator sa%s 5I gie 17 of m% estate to G.5 17" willgo to the " children 17 will go to G and 17 will go *% intestac%.

4he same applies when a acanc% occurs.

Art. . If it $as t%e intention of t%e testator t%at t%e instituted %eirs s%oud

beco!e soe %eirs to t%e $%oe estate; or t%e $%oe free "ortion; as t%e case !ay be; and eac%

of t%e! %as been instituted to an ai,uot "art of t%e in%eritance and t%eir ai,uot "arts

toget%er do not cover t%e $%oe in%eritance; or t%e $%oe free "ortion; eac% "art s%a be

increased "ro"ortionay.

2alane+ 4his article spea6s of the testator;s intention to gie the entire free portion or the entire

inheritance as the case ma% *e *ut he made a mista6e in the addition of the different proportions.

#lements+

1. Seeral heirs!

". Indicates his intention to gie his entire estate to this heirsa. If no compulsor% heirs whole estate

*. If w7 compulsor% heirs whole free portion

&. Indicates portions he wants to gie to each

. 4otal of portions is less than whole estate or free portion as the case ma% *e.

#.g. 4estator has no compulsor% heirs. 8e indicates in the will that his intention to gie his entire

estate to his heirs. 8e gies 17 to A 17@ to 2 17& to 3. 4he estate is worth '1"DDDD.

A '&DDDD

2 "DDDD

3 DDDD

'EDDDD

0hat do %ou do with the remaining '&DDDD

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inheritance.

9or A &DDDD O 1DDDD N DDDD

9or 2 "DDDD O @@@@.@ N "@@@@.@

9or 3 DDDD O 1&&&&.&& N ?&&&&.&&

?. Add %our figures in num*er to ma6e sure that it equals to the alue of the entire

estate. (4o ma6e sure that %ou did not ma6e a mista6e.)

DDDD O "@@@@@ O ?&&&&.&& N 1"DDDD

,ote+ @. If %ou want to get the inheritance of each right awa% multipl% the ratio in num*er &

with the alue of the whole estate.

9or A &7E $ 1"DDDD N DDDD

9or 2 "7E $ 1"DDDD N "@@@@.@

9or 3 7E $ 1"DDDD N ?&&&&.&&

>ou get the same results *ut faster.

Art. 8. If eac% of t%e instituted %eirs %as been given an ai,uot "art of t%e

in%eritance; and t%e "arts toget%er e?ceed t%e $%oe in%eritance; or t%e $%oe free "ortion;

as t%e case !ay be; eac% "art s%a be reduced "ro"ortionay.

2alane+ 4he same principle as in Art. C?" onl% this time %ou decrease.

#lements+

1 to & -- same as those in Art. C?"

. 4otal of portion e$ceeds the whole estate or whole free portion as the case ma% *e

#.g. same as a*oe e$cept that A gets 17" 2 gets 17& and 3 gets 17.

4he alue of the estate is '&DDDD.

A 1?DDD

2 1DDDD

3 ?DD &"?DD

0hat do %ou do w7 the e$cess of '"?DD

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9or 3 &71& $ "?DD N [email protected]&

. Su*tract the results in num*er & from what each heir was to receie initiall%.

9or A 1?DDD - 11?&.C N 1&[email protected]@

9or 2 1DDDD - @E."& N E"&D.9or 3 ?DD - [email protected]& N @E"&.D

?. Add the figures in num*er to ma6e sure it equals to the alue of the whole estate.

1&[email protected]@ O E"&D. O @E"&.D N &DDDD

,ote+ @. If %ou want to get the inheritance of each right awa% multipl% the ration in num*er &

*% the alue of the estate.

9or A @71& $ &DDDD N 1&[email protected]@

9or 2 71& $ &DDDD N E"&D.

9or 3 &71& $ &DDDD N @E"&.D

+ If the testator ma6es & wills.0ill 1-- 5I gie DP of m% estate to A.5

0ill "-- 5I gie DP of m% estate to 2.5

0ill &-- 5I gie DP of m% estate to 3.5

8ow will the estate *% diided 4here are two answers.

1. 17& will go to each. Appl% Art. C?&.

". 3 gets DP 2 gets &DP and A gets &DP. Assume the third will is incompati*le to the

first ".

Art. >. )%epreteritionor o!ission of one; so!e; or a of t%e co!"usory %eirs int%e direct ine; $%et%er iving at t%e ti!e of t%e e?ecution of t%e $i or born after t%e deat%

of t%e testator; s%a annu t%e institution of %eir9 but t%e devisees and egacies s%a be vaid

insofar as t%ey are not inofficious.

If t%e o!itted co!"usory %eirs s%oud die before t%e testator; t%e institution s%a

be effectua; $it%out "re6udice to t%e rig%t to re"resentation.

2alane+

A. 3larification+

1. 50hether liing at the time of the e$ecution of the will or *orn after the death of the

testator.5 4his does not coer all the possi*ilities. 0hat a*out those *orn after the e$ecution ofthe will *ut *efore the death of the testator Art. C? also coers them =ust an oersight.

". #$tends protection onl% to 5compulsor% heirs in the direct line.5 Is this redundant

Aren;t compulsor% heirs in the direct line ,o. Spouses are compulsor% heirs not in the direct

line.

So what is the remed% of the wife who has *een omitted emand her legitime.

3ompulsor% heirs in the direct line coer onl% ascendants and descendants.

2. Preterition.+- 5praeter5 means 5to go *e%ond5 -- not enough to 6now the meaning.

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1. 0ho is a person preterited

Manresa.-- 53omplete omission from the will5 -- 0rongK 0h% It presupposes

that if mentioned in the will then the heir is not preterited. 8oweer whether %ou are mentioned

in the will or not has no effect on thepreterition.

Illustrations+

(1) I hae a son A. 4he will states 5I gie 17" to 2.5 A is not preterited*ec. he gets the other half.

(") I hae a son A. 4he will states 5I gie 17& to 2 and 17& to 3.5 A is

not preterited *ec.

Documents

Succession from Balane and Baveria.pdf