Wills Beda Reviewer

7/28/2019 Wills Beda Reviewer

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SUCCESSIONS

ARTS.774-782: GENERAL PROVISIONS

ART 774Q:What is Succession?

A: It is a mode of acquisition by virtue of which the property, rights and obligations, to the extent of the value of the inheritanceof a person is transmitted through his death to another or others, either by his will or by operation of law.

Q:Basis of Succession?A: 1.) RIGHT TO DISPOSE PRIVATE PROPERTY. In this case, the WILL IS MERELY A CASUAL INSTRUMENT for the

conveyance. This is the basis of Testamentary Succession.

2.) FAMILY CO-OWNERSHIP. In this case, the testator recognises, that the FAMILY IS THE HEART AND SOUL OFSOCIETY, the idea of succession must revolve around it. This is the basis of Intestate Succession.

3.) ECLECTIC THEORY. In this case, the purpose of succession is to PERPETUATE THE TESTATORS PATRIMONYBEYOND HIS EXISTENCE, giving greater stability to his family and society. It is a merger of individual and social principles.

ART 775Q: Define the term decedent.

A: Under Art.775, decedent is the general term applied to the person, whose property is transmitted through successionwhether or not, he left a will. If he left a will, he is also called the testator.

ART 776Q: What does inheritance include?

A: It includes:a) Property;b) Rights not extinguished by death;c) Obligations not extinguished by death(to the extent of the value of the inheritance)(Art.776)

Q: What is the difference between heirs and devisees/legatees, as to the extent of the inheritance?A: An HEIR inherits an aliquot part of the indeterminate portion of the estate, while, the inheritance of a DEVISEE/LEGATEEmust be SPECIFIED by the testator.

Q:What are the elements of Succession?A: 1.) Subjective elements--

-Testator-Heirs-Devisees, or

-Legatees

2.) Objective Element---Inheritance

3.) Casual element-The transmission of a property by will and DEATH, as the condition.

Q: What is the distinction between INHERITANCE and SUCCESSION?A: Inheritance refers to the universality of all the property, rights and obligations constituting the patrimony of the decedentwhich are not extinguished by his death.

Succession is the legal mode by which such property, rights and obligations are transmitted.

Q: What is the EXTENT of the inheritance?

A: It refers to all the PROPERTIES of the decedent at the time of his death. They may be residual and accrued properties.

Note: CORPSE of the decedent is not included.

Q:Are all obligations of the deceased part of his inheritance?A: Art.776 provides that, the inheritance includes all the property, rights and obligations of a person which are noextinguished by his death.Hence, not all obligations shall be part of the decedents inheritance. (E.g. those obligations, whichare purely personal)

Q: Give examples of rights which are extinguished by death, and which, therefore, are not part of the estate?A: The following are not part of the estate:


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a) Intransmissible personal rights because of their nature(such as those appertaining to family rights, maritaand parental authority; support, action for legal separation, partnership agency, life annuity).

b) Right to hold public or private office or job (Hu Niu vs. Collector of customs, 36 Phil. 433) (P)

Q: Give examples of rights not extinguished by death, and which, therefore, are part of the estate?A: They are the following:

a) Right to bring or continue an action for forcible entry or unlawful detainer.b) Right to compel the execution of a document necessary for convenience, provided that the contract is valid

and enforceable under the Statute of Frauds(Araneta vs. Montelibano, 14 Phil. 117)(P)

N.B.: When asked for examples about rights and obligations which are transmissible ad non-transmissible, be particular

whether it is an obligation or a right.

Q:A father was a defendant in a civil case. During its pendency, he died, and his children were substituted as defendants. Ijudgment is rendered against the defendants, can the children be held personally liable with their own individual properties?A: NO. The children cannot be held personally liable, despite the substitution. The remedy of the plaintiff-creditor is to proceedagainst the estate of the deceased father. (Viardo vs. Belmonte, Aug. 21, 1962)

N.B.: While the debts of the deceased still remain unpaid, no residue may be divided among the heirs, legatees and deviseesIndeed, the court may order the sale of sufficient properties for the satisfaction of the debts and the heirs cannot question thisSuch a step is necessary for the eventual partition of the estate. (Lao vs. Dee, Jan, 23, 1952)(P).

N.B.: A creditor of an HEIR (who is not a creditor of the DECEASED), who intervenes in the estate proceedings, cannot askthe court to sell the properties, which the HEIR-DEBTOR expects to receive. This is because the debts of the DECEASEDhimself, must first be paid. Then and only then, can we determine, if there is a sufficient residue left for the HEIRS or fo r theHEIRS CREDITORS (Litonjua vs. Montilla, Jan. 31, 1952)(P)

Q:x died leaving debts amounting to P5M. Will the heirs of X, be answerable for such debts?A: NO. The remedy of the creditors would be to proceed against the estate of X, as a separate juridical person. Monetaryobligations are not part of the decedents inheritance.

Q: Is the body of the decedent, a part of the inheritance?A: NO, because it is not a property.(based on Jurado & Paras) Refer to the special law on the matter.

Q: (a) Is an action to claim ones legitimacy transmissible? (b) How about ones illegitimacy?A: YES. Refer to Arts. 173 and 175 of the Family Code.

Q: What is the restrictive nature of inheritance?A: 1.) (Before death) it is a MERE HOPE.

2.) (After death) it cannot be distributed, unless all the claims against the estate of the decedent are liquidated. The purp ose

of which is to determine, WHAT ASSETS ARE LEFT TO BE TRANSMITTED TO THE HEIRS.

N.B.: Under the Rules of Procedures, liquidation is NECESSARY, in order to determine, whether or not, the decedent has lefany liquid assets, which may be transmitted to the heirs.

N.B.: Estate is a legal exigency created by law so that the heirs will not be bothered by the claims of other persons against thedecedent. Estate is the continuation of the decedents personality.

ART. 777Q: When is the right to the succession transmitted?

A: It is transmitted from the moment of the death of the decedent. (Art. 777)

N.B.: Death is the condition that effects transmission of the decedents assets. The expressed WILL or the decedentspresumed will as provided by law, is the cause. Before death, heirs only have A MERE HOPE OR EXPECTANCY. It is NOT AVESTED RIGHT, for a will may be changed, either because of:

a) Causes of disinheritance, orb) Acts of incapacity/unworthinessc) Revocation of the will.

Q: What is the decisive moment, when the heirs acquire a definite right to the inheritance?A: The decisive moment is DEATH. It is upon the death of the decedent, that the heirs acquire a definite right over theinheritance, whether such right is pure, conditional or with a term.

Q: What is death?A: It is the PERMANENT cessation of all bodily functions which TERMINATES a persons juridical CAPACITY and CAPACITYTO ACT.


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Q: What does PRESUMED WILL mean?A: The will of the decedent to transfer the properties to the heirs is PRESUMED BY LAW. The rules laid down by law is basedon human experience, as may be gleaned from the order of those who may inherit in intestate succession.

Q: What are the conditions before the rights of the heirs are transmitted?A: The conditions are following:

a) DEATH of the decedent/testator (either actual or presumed);b) The rights or properties are indeed TRANSMISSIBLE or DESCENDIBLE;c) Heirs must: (1) Survive the decedent (no predecease), (2) be WILLING(no repudiation), (3) be CAPACITATED to

inherit (Note: These are also the requisites for succession mortis causa).

Q: Can an heir sell his future inheritance?A: NO, because the heir has no vested right over the inheritance yet. Therefore, the object, which is the inheritance, is not yedetermined or certain.

Q: What are the cases when there is no transmission of rights?A: They are:

a) Repudiation made by the heir;b) Heirs predeceased the decedent/testator;c) Incapacity of heirs to succeed.

Q: Upon the death of the testator, is it necessary to deliver the properties to the heirs, in order, to acquire ownership?A: NO, because the right to the inheritance is transmitted from the moment of death of the decedent. Tradition or delivery isnot essential for the acquisition of properties of the decedent because succession is an independent mode.

Q: If a decedent dies January 1, 1999, and the property is actually delivered only on March 1, 1999, when does the heirbecome the owner of the property?

A: He became the owner thereof, beginning January 1, 1999. This is because it is not tradition(delivery) that transfersownership here, but succession. Moreover, the effects of an acceptance (of the inheritance) retroact to the moment of death(Art. 1042) If on the other hand, there is repudiation, it is as if, the heir never owned the property. This is because of theretroactive effect of the repudiation (Art. 1042).

N.B.: No matter when/what time the heir, devisee or legatee enters into the possession of the inheritance, devise or legacyacquisition shall always RETROACT to the moment of death, in accordance with Art. 1042.

N.B.: After the death of the decedent, anyone of the heirs may enter into a contract with respect to his share of the inheritanceeven before partition has been effected the right to the inheritance is already in the nature of a vested right upon the death ofthe decedent.

Thus the heir may:(1) Sell his undivided shared in the inheritance, or(2) Donate it.

Before death, the heirs have only a mere hope or expectancy, absolutely inchoate in character, to their share in theinheritance. Hence, any contract entered into with respect to the inheritance, would have no object whatsoever, thereforeINEXISTENT from the beginning. (see Art. 1374)

Q:Art. 777 provides, the right to succession are transmitted from the moment of death of the decedent. Does this principleapply only to actual death?

A: NO. The principle .under this article applies to both (a) actual death; and (b) presumptive death. This is clear from theprovisions of Arts. 390-391.

Q: What are the rules on PRESUMPTIVE DEATH as to the opening of succession?

A: (a) 10 years absence it being unknown, whether or not the absentee still lives.(b) 5 years, if the absentee disappeared after the age of 75(c) 4 years, if the absentee disappeared under any of the 3 circumstances enumerated under Art. 391.

Q: When or at what precise moment, will there be a transmission of successional rights, in case of a PRESUMPTIVE DEATH?A: (a) as to ordinary absence of 10 years or 5 years if the absentee is more than 75 years of age:

**At the expiration of the period designated by law.

(b) as to extra-ordinary absence of 4 years under Art. 391:**At the time of disappearance, because the absentee disappeared under danger of death. (Note: Although

the rule says, that there will be transmission of successional rights at the time of disappearance of the absentee, we must stil


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wait for a period of 4 years from the time the absentee disappeared. Thereafter, if the absentee does not appear after 4 yearsthere will be transmission of successional rights and it will retroact from the time the absentee disappeared. Reason: Theabsentee disappeared under danger of death.)

Q: What are the kinds of death in Succession?A: 1) Actual death

2) Presumptive deatha) Ordinary, orb) Extra-ordinary

Q: What are the rules used to determine the precise time of death of a decedent, in presumptive death?

A: **Ordinary Presumptive death:1) Rules of evidence. In the absence of evidence;2) Expiration of the period provided for by law.

**Extra-ordinary Presumptive death:1) Rules of evidence. In the absence of evidence;2) AT or ABOUT time of disappearance.

Q: What is the effect, in case, a person presumed to be dead, returns?A: There is recovery of properties, or a return of their value, if they were already alienated, except for the fruits.(The exception lies in the case, when prescription occurs due to lack of title.)

Q: Can there be succession without death?A: As a general rule, there can be no succession without ACTUAL DEATH. However, the law provides succession in cases oPRESUMPTIVE DEATH. In this case, the death of a person is merely presumed and conditioned on the FACT OF DEATH.

Q:X has 2 children, Y and Z, X suffered a heart attack on January 1, 2002, and was pronounced dead on the same day. OnJanuary 2, 2002, X regained consciousness. Y and Z claimed to have succeeded X in his properties, when he was

pronounced dead on January 1, 2002. Is the claim valid?A: NO, there was no succession because there was no death. Death must be PERMANENT because a person can only dieonce.

ART 778Q: What are the kinds of succession?

A:1) Testate2) Legal or intestate3) Mixed

N.B.: Contractual Succession NOT ANYMORE ALLOWED has been omitted in the Family Code. (Do not include this inyour enumeration, unless, you are asked about Contractual Succession.)

Q: What are the different modes of testamentary succession?A: They are:

a) Will or Codicil;b) The will or Codicil may be:

1) Notarial (ordinary, attested, or acknowledged)2) Holographic (handwritten by the testator from beginning to end, complete with date and signature)

N.B.: In case of doubt, testamentary succession is preferred over legal or intestate succession. (Art 791)

Q: What are the kinds of testate and intestate succession?A: They are:

a) Voluntary and compulsory;b) By right and by representation

ART. 779

Q: What is testamentary succession?A: It is one, which results from the designation of an heir, made in a will executed in the form prescribed by law. (Art. 779)

Q: When does INTESTATE succession occur?A: Intestate succession is effected by operation of law, in default of a will. Intestate succession occurs when the testator hasnot made a will, or even if he had one, such will has not been made in accordance with the formalities prescribed by law. Inthis case, his presumed will as provided by law, shall govern the distribution of his hereditary estate after his death.

Art. 780Q: What is Mixed succession?

A: It is one that is effected partly by will and partly by operation of law. (Art. 780)


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Q: When does Mixed Succession occur?A: It occurs when the testator makes a will, but fails to dispose all of his properties by means of such a will. The successionpartakes of the nature of both testamentary and legal succession.Q: What is CONTRACTUAL Succession? (Note: This is not allowed anymore but for your consumption, here is the definition)

A: It is the act of future spouses of giving or donating to each other, in their marriage settlements, their future property, which isto take effect, upon the death of the donor and to the extent laid down by the Civil Code relating to testamentary successionThis succession is not allowed anymore, for it was not expressly provided for in the Family Code.

Q: What are the kinds of heirs in testamentary succession? Define each?A: They are:

1) Voluntary is an heir called to succeed to the whole or an aliquot part of the disposable FREE PORTION of thehereditary estate by, virtue of the will of the testator.

2) Compulsoryis an heir called to succeed to a portion of the testators estate, known as legitime.

ART 781Q: What does the inheritance of a person include?

A: It includes not only the property and the transmissible rights and obligations exiting at the time of his death, but also thosewhich have accrued thereto since the opening of the succession.

ART 782Q: Heir?

A: An heir is a person called to the whole or an aliquot portion of the inheritance, either by will, or by operation of law. An heisucceeds by universal title.N.B.: Heirs may be compulsory (if entitled to the legitime) or voluntary (like a friend)

Q: Devisee?A: A devisee is a person to whom a gift of real property is given, by virtue of a will.

Q: Legatee?A: A legatee is a person to whom a gift of personal property is given, by virtue of a will.

Q: What are the distinctions between heirs, devisees and legatees?A: (a) As to title: Devisees or Legatees are always called to succeed to individual items of property.

Heirs are always called to succeed to an indeterminate or aliquot portion of the decedents hereditary estate.

Devisees or Legatees succeed by PARTICULAR TITLE; while Heirs succeed by UNIVERSAL TITLE.

(b) As to portion of the estate: the devise or legacy which is given to the devisee or legatee by means of a will, is, as

a rule, a charge against the free portion of the testators property. However, if the testator is not survived by compulsory heirshis entire property is considered as free property. In such a case, the devise and legacy can be charged against the entireproperty.

In the case of heirs, a distinction must be made between heirs in testate succession (Compulsory and voluntary) andheirs in intestate succession (legal or intestate heirs).

(c) As to the means of succession; Devisees or legatees are always called to succeed by means of a will.

Heirs are called to succeed, either by means of a will (voluntary) or by operation of law (compulsory and legal)

Q: May a person be a compulsory and voluntary heir at the same time, in the same will? Otherwise stated, is there a possibilityof a dual status as an heir?

A: YES, if in a will a compulsory heir is given more than his legitime, he assumes a dual status:a) Insofar as his legitime is concerned, he is a compulsory heir.

b) Insofar as the excess is concerned, he is a voluntary heir.

N.B.: The aforementioned distinction is important because if a compulsory heir dies ahead of the testator, his legitime isinherited by his own child (by right of representation). On the other hand, the child of a voluntary heir who predeceases or diesahead of the testator gets nothing from the said testator. (Art. 856)

Q: Suppose the only properties left by the decedent are his 3 cars. The decedent gave you 1/3 of his estate, which is, one carAs a beneficiary, are you considered an heir?A: YES, because an aliquot part (1/3 thereof) of the estate was given to me, not a specific part thereof.


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The answer would have been different, if the decedent had given me a specific car. In this case, I would have been a legateehaving succeeded a personal property, by a particular title.

Q: X made a will designating A, as heir of his entire estate. However, since X was a gambler, the only property left to himwhen he died, was his Honda Civic car. Is A an heir or a legatee?

A: A is still an heir for purposes of giving effect to Xs will. The fact that the only property left by the decedent is a personaproperty is immaterial. The designation of A as an heir still controls.

Q: Give the importance of the distinction between voluntary heirs, devisees and legatees?A: (a) In case of preterition/pretermission in the testators will of one, some, or all of the compulsory heirs in the direcline, the effect is to annul entirely the institution of heirs. But devisees and legacies shall be valid, insofar as, they are no

inofficious. (Art 854)

(b) In case of imperfect or defective disinheritance, the effect is to annul the institution of heirs to the extent that thelegitime of the disinherited heir is prejudiced. But devises and legacies shall be valid, insofar as they are not inofficious. (Art918)

(c) In case properties are acquired by the testator after the execution of the will, such properties are not as a rule,included among the properties disposed of, unless, it should expressly appear in the will itself that such was the testatorsintention. This rule applies only to legacies and devises and not to the institution of heirs.

Q:X designated A to of his estate. He also designated to B, his car with plate number GVG101. Who is the heir or legatee?A: A is an heir because she will succeed to an indeterminate portion of the estate (1/2 of Xs estate),B is a legatee, because she will succeed to a specific property a car with plate number GVG101.

Q:X executed a will in 1985. He died in 1995. In his will, X gave Y all of his cars. At the time of the execution of the will in1985, X had only 2 cars then. Assuming that in 1995, he already has 200 cars. How many cars will Y inherit?

A: Y will only get 2 cars, because the remaining cars are after-acquired properties.Reason: Y is merely a legatee because he does not succeed to a portion of the estate.

Q: If in the will, X stated to give of his estate to Y, what is the effect?A: Y is now an heir, because he is to succeed to a portion of the estate. Therefor, in the preceding problem, if the only estateof X are the 200 cars, Y will get 100 cars.

Q: What are the advantages and disadvantages between a devisee, legatee and heir?A: Take note of how the following circumstances affect the devisee, legatee and heir see Jurado for the answer..

a) Effects of preteritionb) Effects of imperfect disinheritancec) Effects of after-acquired properties.

Q: How do you determine an heir from a legatee or devisee?A: If the property is a particular item of the estate, the receiver is a devisee or legatee, as the case may be (whether thaparticular item is REAL or PERSONAL). Otherwise, he is an heir.

ARTS 783-787 WILLS IN GENERALQ:What are the different modes of testamentary succession?

A: They are:a) Will, orb) Codicil

Note: The Will or Codicil may be:a) Notarial (ordinary, attested, or acknowledged)b) Holographic (handwritten by the testator from beginning to end, complete with date and signature)

Note: In case of doubt, testamentary succession is preferred to legal or intestate succession.(Art 791)

Q: What is a Will?

A: A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a CERTAIN DEGREE thedisposition of his estate, to take effect after his death. (Art 783)

Q: Is the right to make a will, a natural right?A: The act of making a will is not a natural right because not all persons can make a will. It is a statutory right. (Simply meansthat not all persons are qualified to make a will)

Q: If the will does not dispose of property, such as when a person is merely named executor, or when a natural child isrecognized, can it still be considered a will?

A: If we follow the strict legal definition of the will, it would seem that if it does not contain a disposition of property, it cannot beconsidered a will. But in some jurisdiction and jurisprudence, it may still be called a will.


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Paras said: It may still be called a will (57 Am. Jur. Sec. 27; Re Meade 118 Cal. 428), although such will need not be probatedfor under our law, it would seem that a probate is needed only, if property is to be conveyed by testamentary succession. (See

Art. 838) Furthermore, it has been held that for the purpose of recognizing a natural child by virtue of a will, the will need nobe probated (Guevara vs. Guevara, C.A., L-7564) though it must of course still be a valid will (Onyaga vs. Omilia, 50 Phil. 820)

Q:In Xs will, A was given a house, effective immediately. (a) Is this a disposition by virtue of a will? A: NO, since it is supposed to take effect immediately. There was, therefore, no animus testandi insofar as, this provision isconcerned.

(b) Is A entitled to get the house now (or immediately)?

A: NO, unless he signifies his acceptance in the form prescribed by law for DONATIONS, and unless the instrument benotarized as a public instrument. (Art 749)

(c)How will the house be disposed of?A: In accordance with the rules on legal succession, in case the donation is not effective. (Art 960)

Q: What are the characteristic of a will?A:

a) A strictly PERSONAL ACTb) An INDIVIDUAL and UNILATERAL ACT;c) FREE and VOLUNTARY ACT;d) A FORMAL and SOLEMN ACT;e) A DISPOSITION of PROPERTY;f) An act MORTIS CAUSA;g) AMBULATORY and REVOCABLE during the LIFETIME OF THE TESTATOR.

Q: Why a personal act?A: Because its execution cannot be left to the discretion of a third person.

Q: Why unilateral?A: Because it does not need the approval of any other person.

Q:Why a formal and solemn act?A: Because it must comply with the formalities prescribed by law.

Q: Why an act mortis causa?A: Because it takes effect only after the death of the testator.

Q: Why ambulatory?

A: Because the testator can revoke it at any time before his death.

ART 784Q:X made his last will and testament and authorize you to execute it. Is it valid?

A: NO. 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 oraccomplished through the instrumentality of an agent or attorney.

Q: Can the testator designate to a third person the typing of his last will and testament?A: It means that, it cannot be left, in whole or in part, to the discretion of a 3

rdperson or accomplished through the

instrumentality of an agent or attorney.

However, the mere act of drafting/writing a will does not fall within the purview of the prohibition. Thus, it has been held thathe who does the mechanical work of writing the will, is a matter of indifference.(J)

The fact, therefore, that the will was typewritten in the office of a lawyer is of no consequence. (Castaneda vs. Alemany, 3 Phil

476; Bagtas vs. Paguio, 22 Phil. 227)

Q: Is it advisable to employ an attorney, in making a will? What are its advantages?A: In making a will it is advisable to employ an attorney, for if we employ an attorney in so many cases involving little money, ishould be wiser to employ one whenever the whole estate is involved. (57 Am. Jur., Sec. 21)

Moreover, if an attorney drafts a will and is present at the time of its execution, there is a strong presumption that the will wasregularly made.

Q: Is a lawyer prohibited from assisting a person in making a will?


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A: It depends. If the lawyer does only a mechanical act of writing the will, then, he is not prohibited. Otherwise, the will wouldbe invalid.

ARTS. 785-786Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions whichthey are to take, when referred to by name, cannot be left to the discretion of a third person.

Art. 786: The testator may entrust to a third person the distribution of specific property or sums of money that he may leave ingeneral to specified classes or causes, and also the designation of the persons, institutions or establishments to which suchproperty or sums of money are to be given or applied.

Q: What are the acts in making a will that cannot be designated to a third person?A: (a) duration or efficacy of the designation of heirs, devisees or legatees;

(b) determination of the portions of which they are to take, provided that they are referred to by the name. (Art 785)

Q: Why is it that the acts provided for under Art. 785 cannot be designated by the testator to third persons?A: 1) Those acts are TESTAMENTARY in character, and therefore, they cannot be designated, in whole or in part, tothird person.

N.B.: making of a will is a strictly personal act.

2) To prevent the third person from substituting his own intentions to that of the testator.

Q:X ordered his lawyer to execute the distribution of the properties in his will, in favour of the heirs. Is the act/will valid?A: NO, because the determination of the portions to be given, lies on the third person. The properties to be distributed and thereceivers must already be specified. The lawyer must only execute the distribution, without the possibility of substituting hisown intentions over that of the testator.

Q:X executed a Special Power of Attorney authorizing his lawyer to make a will. Is the SPA valid?A: NO, because the making of a will is purely a PERSONAL ACT.

Q:X stated in his will: I give P1M to be distributed to charitable institutions devoted to unwed mothers, and, hereby designateY to take care of the distribution of the said amount. Is this act valid?

A: YES. The testator may entrust to a 3rd

person the distribution of a specific property or sums of money that he may leave ingeneral, to specified classes or causes, and also the designation of the persons, institutions or establishments to which suchproperty or sums of money are to be given or applied. (Art 786)

Q: X, testator said to his lawyer, you may take whatever amount from my estate to be distributed to the street children oManila. Is this valid?

A: NO, because although there is a specified class (the street children of Manila), the amount to be given is not specified. The

amount is termed as whatever amount.

Q: In the preceding Q&A, what if X said to his lawyer, I give 10M to be given to the street children of Manila and I herebydesignate you to take care of the distribution of the said amount. Is this valid?

A: YES. Art 786 applies.*Street children of Manila Specified class*10M specified sum of money

Q:What if X said, I hereby make the children of Hospicio de San Jose as my legal heirs, and declare my lawyer to determinethe amount which they are to receive. Is this valid?

A: NO, Art 785 applies because the heirs was referred to by name: the children of Hospicio de San Jose. Furthermore, theamount was not specified by the testator. It is the lawyer who determines the amount.

Q: In the preceding Q&A, what if the testator said, I hereby make the 2002 graduating class of SBC as my legal heirs in theamount of 10M, and declare my lawyer to determine the amount which they are to receive. Is this valid?

A: YES. The beneficiary was a specified class the 2002 graduating class of SBC.

N.B.: Under Art 786, the property or the amount of money to be given must be specified by the testator, in addition to therequirement that it must be for a specied class or cause.

Q:X ordered Y to distribute P50T from his estate, for whatever good cause he may think. Is this act valid?A: NO, because the recipient of the act is not a specified group or class. Art 786 does not apply.

Q:X bequeaths the amount of P5M for Metro Manila. He authorized his executor, Y, to distribute the amount. Is the act valid?


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A: YES. The testator may entrust to a 3rd

person the distribution of SPECIFIC PROPERTY or SUMS OF MONEY, that he mayleave in general to a specified classes or causes, and , also the designation of the persons, institutions or establishment towhich such property or sums of money are to be given or applied. (Art 786)

In this case, X has already completed the testamentary act of making a will. What he delegated to Y, was merely the detailsthereof, in order to make the devise or legacy more effective.

N.B.: The determination of the amount, which the heirs, devisees and legatees, are to take, is a testamentary act which cannobe delegated to a 3

rdperson when such heirs, devisees or legatees are referred to by name. This prohibition is intended to

discourage the illegal delegation of testamentary powers (Art. 785)

Take note however, that the prohibition provided for under Art. 785 is different from the rule enunciated under Art. 786.

Under Art. 786, it involves beneficiaries, who are not referred to by name, but are referred to by specified classes or causes.

Q: X stated in his will, I give the amount of P50M, for the benefit of SBC, CEU, LCC and CHS school and I leave thedistribution of the amount thereof to my lawyer. Is the provision valid?

A: NO. Although they belong to s specified class, the heirs were referred to by name. So Art. 785, applies and not Art. 786The heirs were specifically named and were not merely a particular class.

Q: Supposed the testator stated in his will that, I will give the amount of P50M to all the college schools in Manila and I leavethe distribution of the amount thereof to my lawyer. Is the provision valid?

A: YES, because the schools are of a particular class. The third person can distribute the amount by himself.

N.B. While Art. 785, enumerates in absolute terms, the different things, which the testator cannot do, Art. 786, enumerates byway of exception, the different things which the testator may do.

Thus, the testator is allowed to entrust to a third persons:(a) The power to distribute specific property or sums of money, which he may left in general to specified classes o

causes; and,(b) The power to designate the persons, institutions, to which such property or sums of money, are to be given o

applied (J)

What is contemplated under Art. 786, is that the testator has already COMPLETED the TESTAMENTARY ACT OF MAKING AWILL. What is entrusted to a third person are merely the details thereof, in order to make the devise or legacy more effective(J).

EXAMPLE: A testator may bequeath P1M to a SPECIFIED CLASS, such as the different charitable institutions of Manila, or toa SPECIFIED CAUSE, such as, the cause of labor, entrusting at the SAME TIME, to a executor of his estate, the power to

designate the different institutions or organizations to whom the said amount shall be given (J).

ART. 787The testator may not make a testamentary disposition in such manner that another person has to determine whether or not itis to be operative.

N.B. Under Art. 787. The act determining whether as testamentary disposition is to be operative or not, is NOT EXACTLYTETSTAMENTARY IN CHARACTER. But , the delegation of such act to a 3

rdperson, would be tantamount to allowing the

testator to substitute the will of a 3rd

person, for his own, which precisely, what the law intends to prevent, when it states thatthe making of a will cannot be left, in a whole or in part to the discretion of a 3

rdperson (J).

Q: Suppose it is stated in Mr. Xs will I will give mu house and lot to F, if my wife will agree. Is the provision valid?A: NO, because it is subject to the third persons determination. Under Art. 787 The testator may not make a testamentarydisposition in such a manner that another person has to determine whether or not it is to be operative.

Q: In the preceding, is the entire will invalid?A: NO, only those provisions whose effectivity depend upon the determination of the third person (Xs wife) will be invalidated.

Q: What are the aspects of a will, governed by the law of the decedent?A:

1) order of succession;2) and amount of succession;3) intrinsic validity of testamentary provisions; and4) capacity to succeed (art. 1039)

Art. 1039 CC, Capacity to succeed is governed by the law of the nation of the decedent.


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Q: What is the Rule on the interpretation and construction with respect to testate succession?A: The rule is, to ascertain and give effect to the intention and desires of the testator, provided, they are not contrary to law.

ART. 788Art. 788: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which thedisposition is to be operative shall be preferred.

Q: What if the provision of the will admits of different interpretations, which will be preferred?A: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the dispositionis to be operative, shall be preferred. The reason is that, testate succession, provided the will is valid, is preferred to intestacy

If no doubt exists and the disposition is clearly illegal, the same should not be given effect.

ART 789N.B.: Art 789 refers to 2 kinds of ambiguities. The Latent/Intrinsic ambiguity; and the Patent/Extrinsic ambiguity in theprovisions of the will. The first part of the provision of Art.789 refers to the Latent/Intrinsic ambiguity, while the second parrefers to the Patent/Extrinsic ambiguity.

Q: What are the kinds of ambiguities/validities in the formalities of the will?A: They are:

a) Latent or intrinsic ambiguities;b) Patent or extrinsic ambiguities.

Q: What is latent or intrinsic ambiguity?A: It is, that which does not appear on the face of the will, and is discovered only by extrinsic evidence. E.g. I institute mybrother-in-law. (when it is discovered, that there are 2 brothers-in-law). This ambiguity is not found in the will itself. The doubarises only because of things outside the will.Note: In a will, this kind of ambiguity arises:

a) When there is an imperfect description of the heir, legatee or devisee.b) When there is imperfect description of the gift being given;c) When only one recipientis designated, but it turns out that there are two or more, who fit the description.

Q: What is Patent or Extrinsic ambiguity?A: It is, that which appears on the face of the will itself, in other words, by examining the provision itself, it is evident that it isnot clear. E.g. I hereby institute some of my 7 brothers. ( It is evident here, that we do not know how many of the brothers arebeing instituted.)

Note: In this case, extrinsic evidence, as well as the will itself may be examined (but not the oral declarations of the testator) toascertain the testators intent, but if after everything has been done, the doubt still remains, not one of the seven brothers wilinherit as instituted heirs, because then, the heirs will be considered as unknown persons under Art. 844 par 1(J).

Q: What is the remedy if there is a latent/intrinsic ambiguity in the provision of the will?A: Ascertain the testatorial intention by using either, or both

1. Intrinsic evidence; or2. Extrinsic evidence

The oral declarations of the testator as to his intention must be excluded.

EXAMPLE: X, who owns 2 parcel of land in a certain province, has devised one of them to his cousin, Marc. During the testateproceedings, a question arose as to the identity of the land devised because of the imperfect description of the property in thewill.

Q1: How can the identity of the property devised be determined?A1: Under Art 789, Marc may avail himself of either intrinsic or extrinsic evidence or of both, in order to ascertain thetestatorial intention.

Q2: Can Marc testify or present witnesses, who will testify to the effect that, during his lifetime, the testator, X

verbally declared or revealed the identity of the property he intended to devise?A2: NO. Such testimony would be hearsay, and therefore, inadmissible as evidence (J).

Q: Suppose that the will states, I give to my 1st

cousin Anne Ekaterina Navarro my house and lot in Quezon City. But three1

stcousins of the decedent are named Anne Ekaterina Navarro. (1) What kind of defect is this? (2) What is the remedy?

A: (1) Latent(2) Same as Patent.

Q: What is the remedy if there is a patent/ extrinsic ambiguity in the provision of the will?A: The same as latent/intrinsic ambiguity. Ascertain the testatorial intention by using either, or both

1) Intrinsic Evidence or


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2) Extrinsic evidence

The oral declarations of the testator as to his intentions must be excluded.

Q: Why is oral declaration of the testator in determining the ambiguities in the will, not allowed?A:

1) It is merely HEARSAY, and therefore, inadmissible as evidence.2) The testator is already dead by the time the ambiguities of the will are questioned, and therefore, he can no

longer refute the testimonies of lying witness.

Q: The testator will give his house and lot to two of his five brothers. (1) What kind of ambiguity is this? (2) Is the disposition

valid?A: (1) Patent/Extrinsic. It is evident from the face of the will itself.

(2) It depends.-YES. If the identity of the two brothers referred to in the will can be ascertained by extrinsic or intrinsic evidence.

-NO, if the identity cannot be determined. In this case, the law on intestate succession shall apply.

N.B.: (Navarros words)Pricipal Rule in interpretation of Wills:

1) Determine the testatorial intention;2) Consider the provisions altogether;3) Avoid provisions which will render the will ineffective;4) Testacy is always preferred

ART. 790.ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them inanother 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, orunless it satisfactorily appears that he was unacquainted with such technical sense.

ART 791Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than onewhich will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which wilprevent intestacy.

Q: What is the effect, if the will of the testator is not followed? Or if the will is void?A: Intestate succession occurs.

N.B.: Intestacy is not preferred because it is merely presumed. Testate succession is the general because, it is the express wiof the testator.Exception: If the will is not valid or when the will is void.

ART 792Q: Will the invalidity of one of several dispositions contained in a will, result in the invalidity of other dispositions?

A: NO, it will not result in the invalidity of other dispositions, which are otherwise valid, unless it is to be presumed that thetestator would not have made such other dispositions, if the first invalid disposition had not been made.

N.B.: Even if one disposition or provision is invalid, it does not necessarily follow that all the others are also invalid. Theexception occurs when the various dispositions are indivisible in intent or nature.

ART 793AFTER ACQUIRED PROPERTIES:Under Art. 793, property acquired during the interval between the execution of the will and the death of the testator, ARE NOT

AS A RULE, included among the properties disposed of, UNLESS, it should EXPRESSLY APPEAR in the will itself, that suchwas the INTENTION of the testator.

E.g. If the testator made a will in 1980, disposing of his properties in the form of gifts or bequests of SPECIFIC orDETERMINATE REAL or PERSONAL PROPERTIES, and subsequently, during the period from 1980 to the time of his deathin 1990, he is able to acquire other properties, according to Art.793, the will shall only pass those properties which he had atthe time of its execution in 1980, but not those, which he had acquired subsequent thereto.

It is clear however, that Art 793, applies only to DEVISES and LEGACIES and not to the institution of heirs. This can beinferred from the provisions of Arts. 776 and 781, regarding the extent of inheritance.


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Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at thetime of his death, but also those which have accrued thereto since the opening of the succession.

E.g. X executed a will in 1980, instituting his 3 children A, B and C as his universal heirs. A shall entitled to , B to and Cthe remainder. X died only in 1990, leaving considerable properties, most of which were acquired during the period between1980 and 1990. How will the estate be distributed? Or what part of the estate will be distributed?

A. The division of the estate as dictated in the will shall be applied not only to those properties existing at the time of theexecution of the will in 1980, but even to those that were acquired subsequent thereto, because A, B and C were instituted asheirs.

Q: Why does the provision of AFTER-ACQUIRED PROPERTIES apply only to legatees and devisees?A: It does not apply to the heirs because the heirs inherit everything at the time of the testators death. The extent of theinheritance includes those properties acquired even after the execution of the will. The time of the death is the determiningpoint of the properties, which the heirs will inherent, not the making of the will.

The provision applies only to the legatees and devisees because the intention of the will is COMPLETED ACT.

N.B. Do not confuse Art. 793 with Art. 781. Take note of the difference between after-acquired property (those acquiredbetween the time of making the will and the testators death) and the property accruing since the opening of the succession(or the property added after the death of the decedent, referred to under Art. 781)

ART. 794Every 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.Q: What is the general rule, as to the interest may be disposed of?

A: The entire interest of the testator in the property is given not more not less.

E.g. The owner of a house who devises the same, transfer ownership over the entire house; if he (owner) were a mere co-owner or a usufructuary, he conveys his share in the co-ownership, or his usufructuary rights, no more no less.

Q. What are the exceptions to the aforesaid rule?A. See the discussion of Paras under Art. 794.

ART. 795

Art. 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.Q: What law governs the intrinsic validity of a will?

A: The law at the time of the death of the decedent.

N.B. Kinds of validity with respect to wills:

a.) Extrinsic validity-refers to the forms and solemnities needed-maybe seen from the viewpoint of time and place

b.) Intrinsic validity-refers to the legality of the provisions in an instrument, contract or will-may be seen from the viewpoint of time and place

The formal validity of the will is to be judged not by the law in force at the time of (a) the testators death; or (b) the s upposedwill is presented in court for probate; or (c) when the petition is decided by court, BUT AT THE TIME THE INSTRUMENT WASMADE (J)

REASON: The testators wishes regarding the disposition of his estate among his heirs, devisees and legatees are given

among his expression at the time the will is executed, and thus becomes a COMPLETED ACT: (Enriquez vs Abadia, 50 OG4185: In Re Will of Riosa, 39 Phil. 23) (J) Furthermore, a testator cannot be expected to know the future, hence, it is enoughthat he follows the law in force at the time he makes the will (P)

Q: What is the effect of a new law changing the formalities of a will?A: 1) AFTER THE DEATH of the testator, the rules have no effect because the heirs already have a vested right.

2) BEFORE THE DEATH of the testator, the rules have no effect.

Exception: If the new law expressly provides for a retroactive application.


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Exception to exception: When the heirs already have a vested right.

Q: In the preceeding problem, does the exception (w/ respect to the retroactive application of the law) violate the constitutionaprohibition regarding the deprivation of property w/o due process of law?A: NO. It does not violate the constitutional prohibition regarding deprivation of property w/o due process of law, because (athe statute is enacted BEFORE the death of the testator; and as a consequence, (b) NO RIGHTS are as yet, vested in thepersons called to the inheritance either as heirs, devisees or legatees.Furthermore, the will is still revocable. Thus, if the testator has made a will and a new law is passed affecting the will, thetestator may still change the will to conform to the new law (J).

Q: What then is the rule under Art. 795?

A: A will perfectly valid at the time of its execution cannot be invalidated by a law enacted after the death of the testatorneither can a will totally void at the time of its execution be validated by such subsequent legislation (J).

Q: Suppose X executed his last will and testament in September 13, 1999. The law, at the time the will was executed,required 3 witnesses. But at the time X executed his last will and testament, only 2 witnesses were present. A monththereafter, a new law was passed requiring only 1 witness. ShouldXs will be given effect?

A: NO, because the validity of the will as to its form depends upon the observance of the law in force at the time it is madeThe formal validity of the will is to be judged, not by the law in force at the time the supposed will is presented in court forprobate, or when the petition is decided by court, but at the time the instrument was executed. Although the will operates onlyafter the death of the testator, in reality, his wishes regarding the disposition of his estate among his heirs, devisees andlegatees, are given solemn expression at the time the will was executed. It is also during the same time, that the will becomesa completed act.

Q: Suppose at the time of the execution of the will, the law requires 3 witnesses. The will was executes by X, complying withsuch requirement. Thereafter, a subsequent law reduced the number of witnesses until the time X died. Is the will valid?

A: YES. Although, the will did not comply with the formalities prescribed by law, enacted after the execution of the will, yet, ican still be admitted to probate because it had complied with all of the formalities in force at the time of its execution.

Q: Is the rule enunciated in Art. 795 absolute?A: NO. The validity of a will as to its form depends upon the observance of the law in force at the time it is made, EXCEPT, if asubsequent law allows or requires retroactivity. A latter law may allow for express retroactivity a implied from the languageused therein.

Q: Suppose X died before effectivity of a new law, but probate of the will was initiated after the effectivity of the law. Will thenew law be given retroactive effect?

A: NO. The new law must not be given retroactive effect, as this will violate the vested rights of the heirs.

Q: Why?A: Because the rights are transmitted at the time of the death of the decedent.

Lorenzo vs. Posadas (64 Phil. 353)FACTS: Thomas Hanley died, leaving a will and some personal and real properties. The will, which was duly admitted toprobate, provides among other things that all properties of the testator shall pass to his nephew, Matthew Hanley. However, ialso provides that all the real estate shall be placed under the management of the executors for a period of ten years. After theexpiration of which, the properties shall be given to said Matthew Hanley.

Plaintiff contends that the inheritance tax should be based upon the value of the estate at the expiration of the ten-year periodwhich according to the testators will, the property could be and is to be delivered to the instituted heir, and not upon the valuethereof, at the time of death of the testator.

HELD: Whatever may be the time when the actual transmission of the inheritance takes place, succession takes place in anyevent at the moment of death of the decedent.

Death is the generating source from which the power of the State to impose inheritance taxes takes its being. Hence, if upon

the death of the decedent, succession takes place and the right of the State to tax vests instantly, the tax should be measuredby the value of the estate as it stood at the time of the decedents death, regardless of any subsequent contingence affectin gvalue or any subsequent increase or decrease in value.(See discussions of Paras with respect to Art. 795)

ARTS, 796-800 : TESTAMENTARY CAPACITY AND INTENT

N.B. For your own benefit, study the distinction between testamentary power and testamentary capacity as discussed byParas.

TESTAMENTARY CAPACITY refers to the ability as well as the power to make a will.


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ART. 796Q: Who may make a will?

A: All persons who are not expressly prohibited by law may make a will (Art. 796)

Q: Is the right to make a will a natural right?A: No, because not all persons are qualified to make a will. The law provides some requirements before a person can executea will

It is purely a creature of statute, and as such, is subject to legislative control.

ART. 797Q: What are the minimum requirements for persons, in making a will?

A: 1) must be 18 YEARS OLD2) must be of SOUND MIND3) must NOT be expressly PROHIBITED BY LAW

Q: When does a person become 18?A: A person is said to have reached the age of 18 only at the commencement of the day which is popularly known as hisbirthday

N.B.: 18 years of age:-Minimum age required-As long as the will is made before the decedent reaches the age of 18, the will is void-Good faith is immaterial-The law does not fix a maximum age

Q: X mad a will, when he was only 17. He died w/o changing the will. Is the will valid?A: NO. X has no testamentary capacity at the time of the execution of the will. Supervening capacity or incapacity does noaffect the will because its validity is determined at the time of the execution of the will (Art. 801)

Q: In the preceding problem, what if X believed in good faith that he was already 18 years of age? Is the will valid?A: No. Good faith is immaterial.

Q: Suppose that X is already 95 years old? Can he still make a will?A: YES. (mag Viagra lang daw!!!)

Q: What if X, being 95 years old, has lapses of memory?A: He may still make a valid will.

Q: What if X suffers from tuberculosis (diabetis, AIDS, SARS, etc.)A: He may still make a valid will.

Q: What if X does not remember that he has a wife and children?A: No, because he does not know the proper object of his bounty.

Q: What if he was a BPI bank acct, but foes not know the exact amount or he knows he has a lot in QC but he does not knowthe exact address?

A: He may still make a valid will for as long as he knows the nature and extent of his estate.

N.B.1) The law prescribes no limit in point of age beyond which a person cannot dispose of his property by will. Hence, meresenility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity.

2) A person is considered to have reached the age of 18 on the 1st

hour of his birthday

3) Neither physical infirmity or disease is inconsistent with testamentary capacity. The usual tests must still be applied.

4) Senile dementia produces testamentary incapacity. It is defined as the peculiar decay of the mental faculties, whereby theperson afflicted is reduced to a second childhood.

5) The fact that the testator is under the immediate influence of intoxicating liquor or drugs at the time he performs thetestamentary act, does not invalidate his will, on the ground of lack of testamentary capacity, provided he meets the threerequirements


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6) An insane delusion, which will render one incapable of making a will may be defined as a belief in things, which do not ex istand which no rational mind would believe to exist.

7) A belief in spiritualism is not in itself a sufficient evidence of testamentary incapacity. However, a will executed by one undesuch extraordinary belief in spiritualism, that he follows blindly and implicitly, the supposed discretion of the spirits inconstructing the will, is not admissible to probate.

Navarros Example: Belief in angels:a) If no angel delusionb) If there is angel undue pressure and influence or even threat.

ART. 798Art. 798: In order to make a will it is essential that the testator be of sound mind at the time of its execution.

ART 799Q: When is a person of a sound mind? Or, what is the determination of a sound mind as applied in the making of the will?

A: To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mindbe 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, theproper objects of his bounty and the character of the testamentary act.

N.B. Soundness of mind is the ability of the testator, mentally to understand in a general way, the nature and extent of hisproperty, his relation to those who naturally have a claim, to benefit from his property left by him (proper bounty), and ageneral understanding of the practical effect of the will is executed (must be aware that his act is revocable and must be awareof the effects of his act of making a will).

Q: Suppose X suffered a stroke and part of his brain was damaged. Can he still be considered to be of sound mind forpurposes of executing a will?A: It depends. If the brain damage sustained by X is so severe, that it deprives him at the time of making the will, to know thenature of the estate to be disposed of, the proper object of his bounty, and the character of his testamentary act, then, Xcannot be considered to be of sound mind.

But if the brain damage sustained by X, is not so severe, that at the time of making the will, he is able to know thenature of the estate to be disposed of, the proper object of his bounty, and the character of his testamentary act, then X canstill be considered to be of sound mind.

Q: What are the requisites in order that a testator may be considered to be of sound mind?A: The testator must be able, at the time of making the will, to know:

a) The nature of the estate to be disposed of,b) The proper objects of his bounty; and

c) The character of his testamentary act.

Q: What does nature of estate mean?A: It refers to the character and the testators ownership of what he is giving.

Q: X decided to make a will. He knows he has properties in Manila; but he does not know the exact address. Is the dispositionvalid?

A: YES, because the law merely requires that the testator knows, in a general way, the nature and the extent of his propertiesIn this case, X is of sound mind when he executed the will.

Q: X made a will in 1990. He knew he has money in the bank and a house in Manila. But, he forgot the specific detailsconcerning his properties. Is the will valid?

A: YES, because X knows, the extent of his properties in a GENERAL WAY. He is of SOUND MIND.

Q: What does proper objects of his bounty mean?

A: It refers to the testators relation to those who would naturally have a claim, or to those who would benefit from the propertyleft by the testator. In short, it refers to the persons, who for some reason expect to inherit something from the testator. E.g.testators children.

Q: Is it necessary that the testator should know the beneficiaries of his will?A: As a general rule, YES, because the law requires the testator to be aware of the proper objects of his bounty, except in Art786, which provides, that the testator may designate only a specific class or cause in his will, and that the third person sh all beresponsible for allocating the specific portion to its members.

Q: What does testator is able to know the character of his testamentary act mean?


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A: It means that the testator knows that it is really a will, that it is a disposition mortis causa, that it is essentially revocable. Inshort, the testator must have a general understanding of the practical effect of the will as executed.

Q: Can a drug addict make a valid will?A: As a general rule, YES, a drug addict can make a will, as long as, he is in his lucid mind and he complies with all therequisites provided for, under Art. 799 2

ndpar. The exception lies, when the effects of drugs are so strong as to render him of

unsound mind.

ART. 800Q: Under Art. 800, the law presumes that every person is of sound mind, in the absence of proof to the contrary. What are theinstances, when this presumption is inverted? Or, what are the instances, when the testator is presumed to be mentally

unsound?A: There is at least 3 instances:

a) When the testator, 1 month or less, before making his will was publicly known to be insane.*Instead of presumption of mental capacity, there is a presumption of mental incapacity.*The burden of proof is shifted to the proponents of the will.

b) If the testator made the will after he had been judicially declared to be insane, and before such judicial order hasbeen set aside. (Torres vs. Lopez, 48 Phil. 772)

c) If the testator makes a will, at a time, when he is still under guardianship.

Q: What is the reason for the inversion of the rule, when the person who made the will is under guardianship?A: Aprima facie presumption of mental incapacity, when the person is under guardianship.

Q: If during the probate of the will, there is a question as to the soundness of mind of the testator. Oppositors to the willpresented the attending physician. Whose testimony shall be given weight, the attending physician or the doctor who rendersa medical speculation?

A: Attending physician.

Navarro: I suggest that you get the following as witnesses to the execution of a will:1) Priest or minister highly credible2) Doctor attending physician3) Lawyer familiar with the law

Q: What is the effect of infirmity or disease on the testators testamentary capacity?A: Physical infirmity or disease of the testator will not affect his testamentary capacity, as long as, the tests/requisites arecomplied with (J).

Q: X executed a will. In order for her to sign the will, it was necessary for Y, a minor, to guide her hands. Does X still hastestamentary capacity?

A: YES, as long as, the three requisites/tests are complied with.

N.B.: MENTAL INSANITY refers to any disorder of the mind resulting from disease or defect of the brain, whereby mentafreedom may be perverted, weakened or destroyed. This is sometimes used as the equivalent of mental incapacity to make awill. But there may be mental incapacity to make a will without actual insanity.

Persons suffering from,a) Idiocy,b) Imbecility, andc) Senile dementia,

They do not possess the necessary mental capacity to make a will, since these are absolute and permanent forms of mentadisease or insanity.

IDIOCY refers to those who are mentally deficient in intellect.IMBECILITY refers to those who are mentally deficient as a result of disease.

But there are other forms or degrees of mental disease/weakness, which do not necessarily negative testamentary capacity.

Under our law, to be of sound mind , it is not necessary that the testator be in full possession of all his reasoning faculties, othat his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. (Art. 799)

Hence, mental aberrations, which do not result in such impairment of the faculties as to render the testator unable to know orunderstand the nature of his estate to be disposed of, the proper objects of his bounty, and the character of the testamentaryact, will not destroy testamentary capacity (J).

ART. 801N.B.: Supervening capacity or incapacity does not affect the will because its validity is determined at the time of execution ofthe will.


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Q: Does the supervening incapacity of the testator invalidate an effective will? Or, is the will of an incapable validated by thesupervening of capacity?

A: NO for both. See Art. 801 in relation to Art. 795.

Q: X made a will, when he was only 17. He died at the age of 27 without changing the will. Is the will valid?A: NO, X has no testamentary capacity at the time of the execution of the will. Supervening capacity or incapacity does noaffect the will because its validity is determined at the time of the execution of the will.

Q: Supposed X made a will in 1975, when he was 25 years old. In 1997 he became insane. He died in 1999. Is the will valid?A: YES, subsequent incapacity of the testator does not invalidate a valid will.

Q: How many times can a person make a will?A: There is no limit as to how many times can a person make a will, as long as, he has the capacity to do it. Once a person is18 years old the law presumes capacity. So even if the testator is already 100 years old the will is still valid, unless otherwiseproven.

Q: Does the law prescribe a limit in point of age by which a person can dispose of his property by will?A: No, as long as, the testator passes the test a sound mind, provided for under Art. 799. That is, that the testator, at the timeof the making of the will, is able to know:

a) The nature of the estate to be disposed of;b) The proper objects of his bounty; andc) The character of the testamentary act.

Q: What is the reason, why a person below 18 years of age, is incapacitated to make a willA: The law presumes mental incapacity.

Q: Why is a person too old, still allowed to make a will?A: It has been justly said, that the will of an aged (old) person, should be regarded with tenderness, provided, that he passesthe three tests of possessing a sound mind.

ARTS. 802-803Q: Why is there no provision about married men, on laws of testamentary capacity and intent?

A: Because there is no doubt as to the rights of men in succession. Unlike women due to the Old Civil Code.

Q: Can a married woman execute her last will and testament without the consent of her husband and without authority fromcourt?

A: YES. A married woman may execute a will without the consent of her husband and without authority of the court (Art. 802).

Q: What are the properties which a married woman may dispose of by will?

A: A married woman may dispose by will, all of her separate property, as well as her share of the conjugal partnership oabsolute community property.

Q: What if the husband objects, can she still make a valid will?A: YES. Art. 802, is very clear on this. A married woman may make a will without the consent of her husband. Aside from theminimum requirements that she must be: (a) 18 years old, and (b) be of sound mind, nothing more is needed for a marriedwoman to validly make a will.

ARTS. 804-814: FORMALITIES OF WILLS

Q: What are the classifications of wills?A: (a) Ordinary/notarial; and

(b) Holographic.

Q: What is a holographic will?

A: It is a written will which must be entirely written, dated and signed by the hand of the testator himself, without the necessityof a witness (J).

Q: What is the object of the solemnities surrounding the execution of wills?A: (a) to close the door against bad faith and fraud;

(b) To avoid substitution of wills and testaments; and(c) to guarantee their truth and authenticity.(J)

Q: What are the formalities of an ordinary/ notarial will?A: MEMORIZE ARTS. 804-808 VERBATIM


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Q: What are the formalities of a holographic will?A: MEMORIZE ARTS. 810-814 VERBATIM

N.B.: MEMORIZE ARTS. 804-814

Q: Can there be an oral will?A: NO. Art. 804 expressly provides, every will must be in writing xxx

Q: X, knowing that he is about to die, dictated in front of a video camera his last will and testament. Is the will valid?A: NO. The will is invalid. Art. 804 expressly provided that the will must be in writing.

Q: What does language must be known mean, as provided for, under Art. 804?A: It means that, the language of the will must be personally known to the testator whether he is illiterate or not. That it will becommunicated only to him without changing any intent therein, if he is blind, deaf-mute or deaf. (E.g. if the testator is anilliterate and he speaks tagalog only, the will must be in tagalog.

Q: Does the aforementioned rule apply to witnesses?A: NO, the witnesses need not know the language of the will or attestation clause. This is the reason why the law requires it tobe interpreted to them and not merely communicated.

Q: X speaks and understands Tagalog only. He does not understand a single English word. His lawyer, Atty. Sobrang Yabangwanted to impress X. So he wrote Xs will in English. However, Attty. Sobrang Yabang translatedand explained the will, wordfor wordto X. Is the will valid?

A: NO, because the law requires that the will shall be written in the language KNOWN to the testator.

N.B.: This rule applies even if the person is blind, deaf or deaf-mute.

Q: In the preceding problem, why is it required to be written in a language known to the testator?A: Because a will is a personal act concerning a disposition of ones properties.

Q: What about if the translator is the best translator that the world can offer?A: The will is still invalid. No matter how good the translator can be, something may be lost in the process of translation.

Q: Is it necessary for the validity of the will, that it is stated, that the will was executed in a language or dialect known to thetestator?

A: NO

N.B: It is a matter that may be established by proof of aliunde (extrinsic evidence).

Q: Can it be written in Latin?

A: YES, as long as, it is known to the testator (Art. 804)

Q: Can a will be written in several languages?A: Yes, as long as the languages used are known to the testator.

Q: When X executed his will, it contained 10 dispositions. Each of the 10 dispositions was written in different dialects andlanguages. X used French, Spanish, Latin, English, Tagalog, Bikol, Cebuano, Waray, Ilonggo and Hiligaynon10 dispositions inthe will. Is the will valid?

A: It depends. If X knows all of these languages and dialects, then, the will is valid. The only requirement as to the language odialect used in the making of the will, is that, it must be known to the testator. Otherwise, the will is totally invalid.

Q: In the preceding problem, what if X only knows English?A: The will is totally invalid.

Q: Can the testator make a valid will using any kind of material?

A: Yes.

Q: Can there be a valid notarial will on a material other than paper?A: Yes.

Q: If the testator executed his holographic will on a blackboard or on a tree leaf, is the will valid?A: YES, as long as it is entirely written, dated and signed by the hand of the testator. Hence, it can be written on any material.

Q: How about if the will is written on a wall?A: Yes, the will may be valid, provided it complies with all the requisites.


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A: YES, as long as, it complies with all the requirements for the valid execution of a holographic will. Art. 810 provides that, Aperson may execute a holographic will which must be ENTIRELY WRITTEN, DATED AND SIGNED by the hand of the testatohimself. It is SUBJECT TO NO OTHER FORM, and may be made in or out of the Philippines, and need not be witnessed.

The will therefore, remains to be valid although it has been written on a watermelon leaf.

N.B.: The law does not specify that the testator himself must perform the act of writing. However, under Art. 410 provides, thain case of HOLOGRAPHIC WILLS, the will must be entirely written, dated and signed by the hand of the testator himself.

Consequently, it is only in ORDINARY/NOTARIAL WILLS that whoever performs the mechanical act of writing or drafting thewill becomes a MATTER OF INDIFFERENCE (J).

Q: What constitutes a sufficient signature to a will?A: It depends largely on the custom of the time and place, the habit of the individual, and the circumstances of each particulacase. But, it should be manifest, that whatever is used is actually intended as a signature (J).

Q: What is meant by a signature?A: It is a sign, token or emblem, and what that shall be, depends upon the custom of the time and place, and on the habit orwhim of the individuals.

The material thing is that, the testator made the mark to authenticate the writing as his will , and whatever he puts on it for thapurpose, will suffice.

N.B.:1) SUBSCRIPTION is the manual act of the testator and also of the instrumental witnesses of affixing their signatures

to the instrument.

2) The purpose of the signature, as applied to the testator are the ff:a) To identify the testatorb) Authenticate the document

3) The test of a sufficient signature is if the testator INTENDED IT AS HIS SIGNATURE.

4) The testator may use as his signature thea) First nameb) Assumed namec) Name different from the one used to designate him as a testator in the willd) Name misspelled or abbreviatede) Rubber stamp/engraved markf) Thumbmark

g) Cross against his name.

Provided, that any of the aforementioned was intended by the testator to be his signature.

N.B.: With respect to the use of a mere cross (X) as a signature:1) It is not sufficient as a signature, without any proof that the testator intended it to be his signature.2) If proof is presented that the testator intended a mere cross (X) to be his sign ature, then it may be

considered as a valid signature in a will.

Garcia vs. Lacuesta (90Phil. 489)The X mark was not allowed by the court because there was no proof that it was the customary signature of the testator, oone of the ways by which he signed his name.

In this case, the mark was questioned because the will was executed by a lawyer, and such fact , that it was under the expressdirection of the testator was not stated in the will.

Q: Can the testator sign with his stage name?A: Yes.

Q: Nickname?A: Yes.

N.B. Generally Speaking, the use of any signature intended by the testator to authenticate the instrument renders the wilsufficiently signed by the testator.


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Hence, a complete signature is not essential to the validity of a will, provided, that the part of the name written was affixed tothe instrument with intent to execute it as a will.

Q: Can the witnesses sign the will and attestation clause with a footmark or a thumb mark?A: YES, as long as the witness intended it to be his signature.

Q: Suppose, it is not customarily used by him?A: Even then, for the law does not provide that he sign with what he customarily uses as his signature.

Q: Can the testator sign with his thumb mark, even If he knows how to write?A: Yes.

Q: Foot mark?A: Yes.

Q: Any mark?A: Yes.

N.B.: Any mark or combination of marks placed on a will by the testator as his signature is a sufficient compliance with astatute requiring a will to be subscribed by the testator.If the testator has been in the habit of using a rubber stamp or engraved dye, in making his signature, he may properly use thesame in signing his will.

Q: The testator sign at the beginning of the will. Is the will valid?A: NO, Art. 805 provides, Every will, other than a holographic will, must be subscribed at the END thereof by the testatohimself or by the testator's name written by some other person in his presence, and by his express direction xxx.

Q: Suppose X signed his will in the middle. Is the will valid?A: NO, because of the express requirement under Art. 805, which requires subscription in the END.

N.B.: 1) END refers to the logical end of the will, not the wills physical end.2) Logical end is the portion after the testamentary disposition.

Q: X died with a will. When the will was presented for probate, it was readily apparent, that it was signed in each and everypage and in the left margin, but not the end. Should the will be allowed?A: NO. The law requires that the will be subscribed at the end of the will.

Q: Is it a fatal defect?A: Yes.

Q: Why require that the signature must be at the end of the will?A: The purpose of such requirement is not only to show that the testamentary purpose therein expressed is completed, bualso to prevent any opportunity for fraud or interpolations between the written matter and the signature.

N.B.: Another essential requirement for the validity of an ordinary will is the ATTESTATION CLAUSE. Absence of this clausewill render the will a nullity. Therefore, it is mandatory (J).

ATTESTATION1) An act of the senses2) A mental act3) Purpose is to render available proof during the

probate of the will, not only of the authenticity of thewill but also of its due execution.

SUBSCRIPTION1) An act of the hand2) A mechanical act3) The purpose is identification/to identify that it is

really the will of the testator.

Q: Suppose X executed a notarial will, the attestation clause of which is in Spanish. X knows English but not Spanish. Is it a

valid will?A: Yes.

Q: Can there be a valid will without an attestation clause?A: None.

Q: Why then should an attestation clause in a language not known to the testator be permitted?A: The attestation clause is a declaration made by the witnesses, not by the testator.

Q: What is the purpose in requiring the witness to attest and subscribe to the will?A: 1) To identify the instrument;


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2) To protect the testator from fraud and deception;3) To ascertain the testamentary capacity of the testator.

Q: What is an attestation clause?A: It is a memorandum or record of facts wherein, the witness certify that the instrument has been executed before them andthat it has been executed in accordance with the formalities prescribed by law.

Q: Is the attestation clause part of the will?A: NO, it is separate and distinct from testamentary dispositions, which were executed by the testator. It is a separatememorandum executed by the witnesses stating that they witnessed the execution of the will and that it is in accordance withthe formalities of the law.

But it can be incorporated in the will.

Q: What is the purpose of the attestation?A: To render available proof during the probate of the wil, not only of the authenticity of the will, but also of its due execution.

Q: Where should the attestation clause be placed?A: The attestation clause may be written immediately after the signature of the testator, at the end of the will.

Q: What if placed at the beginning of the will?A: The will would still be valid. The present form is only for convenience.

N.B.:1) The law does not require the attestation to be contained in a single clause. Thus, where a will did not contain a

separate and independent attestation clause, but the concluding paragraph of the body of the will was written in thetenor of an attestation, stating the facts required by law to be set forth in an attestation clause, and the penultimateparagraph of the will stated the number of pages used, it was held that there was a sufficient attestation clause.

2) If there is a separate attestation clause, it need not be written on the very same page where the dispositions of thewill ends, even if, there should be sufficient space in which to begin the said clause.

Q: Is it necessary that the attestation clause be after the testamentary dispositions?A: NO. The current form is only for convenience.

Q: What must be stated in the attestation clause?A: See Art. 805 par 3, The attestation shall state the number of pages used upon which the will is written, and the fact that thetestator signed the will and every page thereof, or caused some other person to write his name, under his express direction, inthe presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in thepresence of the testator and of one another.

Q: Give an example of an attestation clause?

A: We the witnesses, do hereby certify: a) that the will of Mr. A consists of 5 pages, including b) the page that Mr. A executedhis signature and every page thereof in our presence, c) that we witnessed the execution of the will and signed each and everypage thereof, in the presence of Mr. A and each other. (signatures must follow)

Q: Suppose that the phrase every page thereof was not included. Should the will be allowed?A: YES. Compliance with the requirement that every page thereof be signed, may be proved by the marginal signatures ineach and every page of the will.

Q: Suppose that it is the phrase in our presence which was deleted. Should the will be allowed?A: NO. There would be nothing in the will that will prove compliance thereto.

Q: Is it tenable, that the signature for the clause be found in other parts of the page?A: NO. In Cagro vs. Cagro, it was held that the signatures must be after the clause, to show that the clause was indeedexecuted by the witnesses. Non-appearance of the signature will negate the declaration that they saw the due execution of thewill.

Note: The ruling applies, despite the fact that the case was decided under the old rules on succession.

Q: If the attestation clause failed to state (a) the number of pages; (b) the fact that it was signed by the testator, in thepresence of the witnesses; or (c) the fact that it was signed by the testator, is the will valid?A:

a) As to the number of pages:General rule: the will is not valid. Exception: if the number of pages is STATED IN THE WILL ITSELF OR

ACKNOWLEDGMENT. (Taboada vs. Rosal)


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N.B. But this exception must be received with caution, because in the case of Taboada, there were only two pages inthe will, including the acknowledgment. This rule applies also if the pages are not correlatively numbered.. but only incases when the will does not exceed two pages.

b) The will is VOID without any exceptions even if the will contains the signature of the witnesses. The omission can nobe determined by examination of the will itself.N.B. Evidence aliunde/extrinsic evidence is inadmissible.

c) The will is VOID, Exception: The doctrine of Liberal Interpretation shall be applied, if there are indeed signaturespresent.

Q: Suppose the attestation clause does not state the number of pages used. Is the will valid?A: General rule: No.

Exception: Applying the rule of liberal interpretation/construction, the failure to state in the attestation clause of thenumber of pages used, is not fatal. Hence, the will may still be valid, provided that it can be established or deducedfrom an examination of the will itself, that all of the statutory requirements have been complied with.

N.B.: Prof. Navarro said, the doctrine of liberal interpretation cannot be applied if the omission consists of the failure to statethat the witnesses and the testator signed in the presence of one another. REASON: this omission cannot be remedied by anexamination of the will itself.

Q: Can a testator ask a third person to sign for him, even if he is physically able to do so?A: Yes.

Q: If the third person is not capacitated would the will be allowed?A: YES. The will remains to be valid. What is material is the capacity of the testator, not that of the third person.

Q: Why should the third person sign in the presence of the testator?A: Because it is the testator himself who is signing. The third person is merely an extension of the physical self of the testator.

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Used, it is necessary that both front and reverse sides should bear the signatures of the testator and each of the witnesses. Inother words, every page used in the will should be signed on the left margin.

Q: Suppose that in a 4-page will the attestation clause did not state the number of pages used. But the last paragraph statesthat the will is comprised of 4 pages including the attestation clause, should the will be allowed?

A: YES. Following the doctrine of liberal interpretation, there is substantial compliance of the requirements.That is, the failure of the instrumental witnesses to state one or some of the essential facts which, according to law, must bestated in the attestation clause would not be fatal, provided, it can be established or deduced from the examination of the willitself that all of the statutory requirements have been complied with.Take note that in this case, the body of the will states that it is composed of 4 pages.

Taboada vs. Rosal (118 SCRA 195)

FACTS: The attestation clause of a notarial will failed to state the number of pages thereof. However, it is discernible from theentire will that it really consists two pages only: the first, containing the provisions; and the second, both the attestation clauseand the acknowledgment. Besides, the acknowledgment itself states, that This last will and testament consists of two pagesincluding this page.HELD: Under the circumstances, the will should be allowed probate. After all, we should approach the matter liberally.

N.B. Cagro vs. Cagro

Q: Is there a need to interpret the attestation clause to the testator?A: NO, A.C. is an act of the witnesses alone.

N.B.: TEST OF PRESENCE:1) There is presence, if the parties could have seen each other, if they have simply chosen to do so, by turning thei

backs to each other. **There must be NO physical obstruction of their line sight.2) To satisfy the test of presence, it is essential, that the testator and the witnesses should be (a) conscious; and (b

aware of what is happening.3) If the testator is blind, the sense of sight to determine presence is not to be used. In this case, other senses, such as

hearing or touch, can be used.

Q: What is the test of presencein the execution of the will?A: The testator and the witnesses need not actually see each other signing. It is sufficient that they could have seen eachother sign if they choose to do so, taking into consideration circumstances, the mental and physical conditions of the partiesand their proximity from each other.They must be aware that each other are signing a will, and their view must be unimpeded. So that, they will see the will, if theychoose to see it. (Jaboneta vs. Gustillo and Nera vs. Rimando)


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Q: Does the law require physical proximity in order to have a valid presence?A: (not necessarily) Test of a valid presence does not necessarily require actual seeing, but the possibility of seeing withouany physical obstruction.

a) When a person merely has his back turned, the signing is done in his presence, since he could have cast his eyes tothe proper direction.

b) If there is a curtain separating the testator and some witnesses from the other witnesses, there would be a physicaobstruction, and the will cannot be valid.

Q: What are the reasons why the will must be executed in the presence of each other the Testator and the Witnesses?A: 1) To PREVENT FALSE TESTIMONIES between the principal executors of the will;

2) to OBTAIN A PERMANENT RECORD of the events that transpired, in case the memory of the executors fail.

Q: Testator signed the will on January 1, 2002. The witnesses signed the will on the following day. The testator acknowledgedthat the signature was his. Is this valid?

A: NO. The law requires that the will be signed in the presence of each other. The acknowledgment made by the testator didnot cu

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