wills and succession (draft)

WILLS AND SUCCESSION

I. GENERAL PROVISIONS

A. Definition and Concept

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

Art. 712. Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.

They may also be acquired by means of prescription. (609a)

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent.

If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. (1257a)

Basis of Law of Succession Legal Philosophy of the Civil Code on Succession Fundamental changes in the NCC

B. Law governing form

1. As to time of execution

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.

2. As to place of execution

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a)

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n)

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or

according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

In re Will of Rev. Abadia, 50 O.G. #9, p. 4185The validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed.

When one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature cannot validate void wills

Fleumer v. Hix, 54 Phil. 610The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts.

Estate of Giberson, 48 O.G. #7, 2657

Dela Cerna v. Potot, 12 SCRA 576Article 818 of the Code prohibits the execution of joint wills, whether they be for the reciprocal benefit of the testators, or for the benefit of a third person. However, it must be noted that if a probate court erroneously admitted a joint will to probate, the error thus committed would be considered an error of law and not of jurisdiction. Therefore, such an error must be corrected by appeal; failing which the erroneous decision would become final.

The foregoing notwithstanding, please note that in the following case, the joint will, while deemed operative with respect to the husband, was considered void as to the wife. The issue of jurisdiction should be noted in particular.

Estate of Rodriguez, 46 O.G. # 2, p. 584

C. Law governing content

1. As to time

Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no

other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)

2. As to successional rights

Art. 16(2). However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

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

Estate of Christensen, 61 O.G. # 46, p. 7302

Estate of Amos Bellis, 20 SCRA 358The FORMAL VALIDITY of a will depends upon the observance of the law in force at the time of execution. On the other hand, the SUBSTANTIVE VALIDITY of the dispositions therein is governed by the laws in force at the time of the death of the testator.

Article 16(2) and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed.

Cayetano v. Leonides, 129 SCRA 524As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.

Article 854 does not apply in the case of a foreign testator who omits in his or her will the compulsory heirs in the direct line. In the case of a foreign testator, the conflict rule enunciated in Article 16 of the Civil Code applies. Therefore, regardless of whatever public policy or good customs may be involved, the provision of Article 854 of the Civil Code is never meant to apply to a foreign testator.

D. Subjects of Succession

Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)

Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n)

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower; (4) Acknowledged natural children, and natural children

by legal fiction; (5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

1. Who are the subjects?

2. Relationship

Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)

Art. 964. A series of degrees forms a line, which may be either direct or collateral.

A direct line is that constituted by the series of degrees among ascendants and descendants.

A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a)

Art. 965. The direct line is either descending or ascending.

The former unites the head of the family with those who descend from him.

The latter binds a person with those from whom he descends. (917)

Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent.

In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a)

Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother.

Half-blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a)

Art. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922)

Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923)

3. Capacity to Succeed

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato.

a. Determination

Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion.

In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.

If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (758a)

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)

Art. 16(2). However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

Cayetano v. Leonides, 129 SCRA 522 Article 854 does not apply in the case of a foreign testator who omits in his or her will the compulsory heirs in the direct line. In the case of a foreign testator, the conflict rule enunciated in Article 16 of the Civil Code applies. Therefore, regardless of whatever public policy or good customs may be involved, the provision of Article 854 of the Civil Code cannot is never meant to apply to a foreign testator.

b. Who may succeed?

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato.

The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n)

Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.

All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)

Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator

during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;

(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;

(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)

Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (n)

Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (747a)

Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.

The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (749a)

Parish Priest of Victoria v. Rigor, 89 SCRA 493Capacity to succeed is determined from the moment of the death of the testator or the decedent. To be capacitated, an heir, legatee or devisee must be living at the time succession opens, except in case of representation whenever appropriate. A testamentary disposition giving a devise to the nearest male relative who would pursue an ecclesiastical career is meant to refer to such relatives living (or at least conceived) at the time of the testator's death. A contrary interpretation may be upheld only if there is a clear intention to the contrary. Nevertheless, the enforceability of such a testamentary disposition is necessarily limited to twenty years from the time succession opens, in order that the disposition be consistent with the rule prohibiting perpetuities.

c. Who are incapable of succeeding?

Art. 1025. Art. 1027.Art. 1028.

Art.1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755)

Art. 1032. The following are incapable of succeeding by reason of unworthiness:

(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue;

(2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases

wherein, according to law, there is no obligation to make an accusation;

(5) Any person convicted of adultery or concubinage with the spouse of the testator;

(6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made;

(7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will;

(8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)

Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942-841a)

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

d. Effect of alienations by the excluded heir

Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)

e. Rights of the excluded heir

Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.

The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)

Art. 1937. Movable or immovable property may be the object of commodatum.

Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n) f. Liabilities of the excluded heir

Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions.

He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. (760a) g. Prescription of Action

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be

brought within five years from the time the disqualified person took possession thereof. It may be brought by anyone who may have an interest in the succession. (762a)

E. Object of Succession

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

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

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent.

If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. (1257a)

Art. 1429. When a testate or intestate heir voluntarily pays a debt of the decedent exceeding the value of the property which he received by will or by the law of intestacy from the estate of the deceased, the payment is valid and cannot be rescinded by the payer.

Art. 1178. Subject to the laws, all rights acquired in virtue of an obligation are transmissible, if there has been no stipulation to the contrary. (1112)

Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly authorized by law.

All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a)

RPC, Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. — The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured.

Reyes v. CA, S.C. L-5620 July 31, 1954 The natural children of the deceased in this case are questioning the intrinsic validity of the will on the ground that his compulsory heir cannot be one, as theirs was an illicit relationship. SC held that as a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid. The intrinsic validity of a will may be passed upon because “practical considerations” demanded it as when there is preterition of heirs or the testamentary provisions are doubtful legality. In this case however, there was never an open admission of any illicit relationship. Thus, there was no need to go beyond the face of the will.

Guinto v. Medina, 50 O.G. # 1, p. 199, Oct. 7, 1953

F. Opening of Succession

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)

Art. 2253. The Civil Code of 1889 and other previous laws shall govern rights originating, under said laws, from acts done or events which took place under their regime, even though this Code may regulate them in a different manner, or may not recognize them. But if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin. (Rule 1)

Art. 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted.

One who validly renounces an inheritance is deemed never to have possessed the same. (440)




Art. 1461. Things having a potential existence may be the object of the contract of sale.

The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence.

The sale of a vain hope or expectancy is void. (n)

Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)

Art. 132. A donation by reason of marriage is not revocable, save in the following cases:

(1) If it is conditional and the condition is not complied with;

(2) If the marriage is not celebrated; (3) When the marriage takes place without the consent of

the parents or guardian, as required by law; (4) When the marriage is annulled, and the donee acted

in bad faith; (5) Upon legal separation, the donee being the guilty

spouse; (6) When the donee has committed an act of ingratitude

as specified by the provisions of this Code on donations in general. (1333a)

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

FC, Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)

FC, Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:

(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

(2) When the marriage takes place without the consent of the parents or guardian, as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;

(4) Upon legal separation, the donee being the guilty spouse;

(5) If it is with a resolutory condition and the condition is complied with;

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)

Requisites for the transmission of Successional Rights

1. Express will of the testator or provision of law

2. Death of the person whose property is the subject of succession

Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33)

Survivorship Rule ROC, Rule 131, §3(ii) par.5

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

3. Acceptance of the inheritance

Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988)

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989)

Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (991)

Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.

Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.

The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (992a)

Art. 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. (993a)

Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994)

Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a)

Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a)

Art. 1049. Acceptance may be express or tacit. An express acceptance must be made in a public or

private document. A tacit acceptance is one resulting from acts by which the

intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir.

Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a)

Art. 1050. An inheritance is deemed accepted: (1) If the heir sells, donates, or assigns his right to a

stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though

gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs

indiscriminately; BUT if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of

accretion, the inheritance shall not be deemed as accepted. (1000)

Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008)

Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.

The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001)

Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006)

Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (1007a)

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.

Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009)

Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. (997)

Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance.

If they do not do so within that time, they are deemed to have accepted the inheritance. (n)

Uson v. Del Rosario, 92 Phil. 530 Article 777 provides that the right to the succession is transmitted from the moment of the death of the decedent. Accordingly, Uson holds that the inheritance pertains to the heirs from the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to the heirs a deed for the same before his death. This transmission takes place by operation of law.

Article 2253 provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

De Borja v. De Borja, 46 SCRA 577The right to the inheritance is transferred to the heirs precisely at the moment of the death of the decedent. From such time, the heirs are deemed to be the owners of the

same. De Borja confirms that from the moment of death of the decedent, the heirs begin to enjoy all the attributes of ownership, including the right to dispose (jus disponendi). De Borja holds that the pendency of the probate proceeding is no bar to the exercise of such proprietary rights, since ownership over the hereditary estate has vested in the heirs from the time of the death of the testator.

Bonilla v. Barcena, 71 SCRA 491The transmission of the hereditary estate from the decedent to the heirs takes place from the moment of the death of the decedent. A prior judicial declaration of heirship is not necessary to perfect the transmission. Bonilla holds that claims to or rights over property which were initiated by the decedent during his lifetime by appropriate court proceedings are not extinguished by his death. These claims or rights over property are transmitted to his heirs upon his death.

Cruz v. Cruz, G.R. No. 173292, September 1, 2010The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained [of] affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental. A Petition for Declaration of Nullity of Deed of Sale of Real Property is one relating to property and property rights, and therefore, survives the death of the petitioner.

From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings.

Bough v. Modesto, Jan 28, 1954, 94 Phil.

Borromeo-Herrera v. Borromeo, 152 SCRA 171 The purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish such right. The intention to waive a right or advantage must be shown clearly and convincingly, and when the only proof of intention rests in what a party does, his act should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other reasonable explanation of his conduct is possible

CONVERSION: The trial court had jurisdiction to pass upon the validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower court disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the decision of the lower court. Subsequently, several parties came before the lower court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate. G. Kinds of Succession

Art. 778. Succession may be: (1) Testamentary; (2) legal or intestate; or (3) Mixed. (n)

1. Testamentary

Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n)

2. Legal or intestate

Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or

one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose

of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

3. Mixed

Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

4. Contractual

Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)




Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will.

The donation shall be inofficious in all that it may exceed this limitation. (636)

FC, Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)

5. Compulsory

TESTAMENTARY SUCCESSION II. WILLS

A. Definition

Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a)

B. Characteristics

Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain

degree the disposition of this estate, to take effect after his death. (667a)

Art. 839. The will shall be disallowed in any of the

following cases: (1) If the formalities required by law have not been

complied with; (2) If the testator was insane, or otherwise mentally

incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or

the influence of fear, or threats; VOLUNTARY(4) If it was procured by undue and improper pressure

and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that

the instrument he signed should be his will at the time of affixing his signature thereto. (n)

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

Art. 796. All persons who are not expressly prohibited by law may make a will. (662)

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

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

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)

Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a)

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n)

C. Interpretation of Wills

Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n)

Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a)

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

Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n)

Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n)

Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

Solla v. Ascuenta, 49 Phil. 333In order to determine the testator's intention, the court should place itself as near as possible in his position, and hence, where the language of the will is ambiguous or doubtful, should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will executed. Where the testator's intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention, and in order to give effect to such intention, as far as possible, the court may depart from the strict wording and read word or phrase in a sense different from that which is ordinarily attributed to it, and for such purpose may mold or change the language of the will, such as restricting its application or supplying omitted words or phrases.

III. TESTAMENTARY CAPACITY AND INTENT

A. Who may make a will?

Art. 796. All persons who are not expressly prohibited by law may make a will. (662)

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

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

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

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; BUT if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n)

Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n)

B. Supervening incapacity

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

Baltazar v. Laxa, G.R. No. 174489, April 11, 2012It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.

The state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of unsound mind.

An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death.

The very existence of the Will is in itself prima facie proof that the supposed testatrix has willed that her estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby. IV. SOLEMNITIES OF WILLS A. Kinds of Wills

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)


B. Notarial Wills

1. General requirements


Suroza v. Honrado, 110 SCRA 388Every will must be IN WRITING and EXECUTED IN A LANGUAGE OR DIALECT KNOWN to the TESTATOR. In this case, the testatrix was proved to be illiterate. However, her alleged

notarial will was written in English, which in the opening paragraph of the will, was supposedly a language known to her. The contradiction in the concluding paragraph of the will clearly indicated the nullity of the purported will.

2. Specific requirements.

Art. 805. Every will, other than a holographic will, must be SUBSCRIBED at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The ATTESTATION shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n)

Garcia v. Lacuesta, 90 Phil. 489 Where it appears that the TESTATOR caused another person to write his name in the will, such fact must be stated in the attestation clause. A failure to make such a recital is a fatal defect. That the testator affixed the sign of the cross after his name written by another person is not sufficient indication that the testator in fact signed the will, absent a clear showing that the sign of the cross is the customary signature of the testator, or at the very least, one of the ways by which the testator signed his name.

Balonan v. Abellana, 109 Phil. 358 Article 805 prescribes the manner in which the will must be signed by the testator; i.e., "subscribed at the end thereof by the testator himself, or by the testator's name written by some other person in his presence and by his express direction. The requirement is MANDATORY and failure to comply therewith is a fatal defect. It is not important that the person to whom the function of writing the testator's name indicates or writes his own name. But it is imperative that this individual should write the name of the testator. Balonan gives two alternate ways of complying with the statutory requirement.

Nera v. Rimando, 18 Phil. 450 Article 805 requires that the will must be signed by the testator and the witnesses in the presence of one another. TEST OF PRESENCE: It is not essential that the testator and the witnesses should look at the paper purporting to be the will of the testator at the time each of them affix their signatures. It is sufficient that each of them be PHYSICALLY PRESENT at the PLACE WHERE EXECUTION WILL TAKE PLACE and that they be in such position with respect to each one, that by merely casting their eyes in the proper direction, they would have been able to see each one affix his signature on the will without any physical obstruction.

Jaboneta v. Gustiolo: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

Taboada v. Rosal, 118 SCRA 195Article 805 requires that the testator should sign at the end of the will. This requirement does not apply to the subscribing witnesses, who may sign in any other part of each page of the will. The duty of the witnesses to subscribe is substantially complied with by any such signature. The failure of the attestation clause to indicate the number of pages upon which the will is written is, as a rule, a fatal defect. However, where the notarial acknowledgement does indicate the number of pages of the will, and the same conforms to an actual count of the pages, the deficiency is cured (Art. 809: substantial compliance).

Echavez v. Dozen Construction, G.R. No. 192916 (2010)Even granting that the Acknowledgment embodies what the attestation clause requires, an attestation clause and an acknowledgment cannot be merged in one statement.

The requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates two distinct acts that serve different purposes. An ACKNOWLEDGMENT is made by one executing a deed, declaring before a competent officer or court that the deed or act is his own. On the other hand, the ATTESTATION of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution.

In re Lopez v. Lopez, G.R. No. 189984 (2012)The attestation must state the number of pages used upon which the will is written. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages.

The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7 pages including the page on which the ratification and acknowledgment are written" cannot be deemed substantial compliance. The will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde. On this score is the comment of Justice J.B.L. Reyes regarding the APPLICATION of Art. 809, to wit: The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.

Icasiano v. Icasiano, 11 SCRA 422 Article 805 requires that each of the subscribing witnesses should sign each and every page of the will on the left margin. This requirement is, as a rule, mandatory and a failure to comply therewith is a fatal defect. Icasiano holds that the failure of a witness to sign one of the pages of the will through inadvertence or oversight (there being no bad faith or fraudulent intent) can be cured by the presentation of a carbon duplicate of the will which contains all the required signatures. This ruling is based on the principle of liberal interpretation of the statutory requirements for the formal validity of the will, provided that the need to safeguard the genuineness and authenticity of the will is not compromised. It is important, for the proper understanding of this case, to differentiate a duplicate copy of a document from a duplicate-original thereof.

Cruz v. Villasor, 54 SCRA, 31

Article 806 requires that the testator and the three witnesses must acknowledge the will before a notary public. Cruz involves a situation where one of the three witnesses to the will was the same person who notarized the same. By reason thereof, the Supreme Court disallowed the will for the reasons stated hereunder. While the proponent of the will relied on American decisions which permit a notary public to be a witness to an instrument notarized by him, the Supreme Court rejected the application of the foregoing decisions to the case at bar. It would seem that the strongest argument against the proponent is the fact that the witnesses themselves are required by law to acknowledge the document. For which reason, it is obvious that a witness cannot simultaneously be the notary public before whom the will shall be acknowledged. A different result may be expected if the witnesses were not required by law to acknowledge the document.

Gabucan v. Manta, 95 SCRA 752 Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence. If the promissory note does not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the deficiency. The lack of the documentary stamp on a document does not invalidate such document.

Javellana v. Ledesma, 97 Phil. 258The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is not part of the acknowledgment itself nor of the testamentary act. Hence, their separate execution out of the presence of the testatrix and her witnesses cannot be said to violate the rule that testaments should be completed without interruption Witnesses to a Will

a. Who are competent?

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a

document, perjury or false testimony. (n)

Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n)

Gonzales v. CA, 90 SCRA 183 Article 805 requires the notarial will to be attested by at least three credible witnesses. Article 820 prescribes the qualifications of a witness, while Article 821 enumerates the disqualifications. Thus, an issue arises as to whether or not a witness competent under Articles 820 and 821 is necessarily credible as required by Article 805. Gonzales makes a distinction between a competent witness and a credible witness. Furthermore, Gonzales stresses that COMPETENCE may be proved or inferred; whereas, CREDIBILITY, which is a matter to be determined by the court, is presumed unless evidence to the contrary is presented.

b. Supervening incompetency

Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n)

c. Competency of interested witness.

Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

3. Special Requirements: Deaf, Deaf-mute & Blind Testators

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

Garcia v. Vasquez, 32 SCRA 489Article 808 of the Civil Code prescribes an additional formality in the case of a blind testator. If a testator's vision does not permit him to read the document, even if he can see distant object, the testator is deemed blind for the purpose of requiring the observance of the additional formality prescribed in Article 808. If the testator is blind or incapable of reading the will (as when he is illiterate) the requirement of reading must be complied with in order to enable the testator to object to provisions which are not in accordance with his wishes.

PROBATE PROCEEDING: What was being questioned was the validity of the conveyance or sale of the properties. The action for annulment would have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights of the deceased. The rule is that, only where there is no special proceeding for the settlement of the estate of the deceased may the LEGAL HEIRS commence an action arising out of a right belonging to their ancestor.

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and separate action would have to be instituted, the matter not falling within the competence of the probate court. Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla and the administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. 4. Substantial Compliance

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n)

C. Holographic Wills

1. General requirements


2. Specific requirements


Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

Roxas v. De Jesus, 134 SCRA 245 Article 810 of the Civil Code requires, among others, that a holographic will be dated. While a complete date is generally required, an incomplete date which sets forth only the month and the year of execution, is not a fatal defect if it can be shown that there was no bad faith, fraud, and undue and improper influence and pressure. Probate is further justified if the genuineness of the handwriting of the testator is proved, or otherwise admitted by the parties, and the only ground for opposing probate is the technicality resulting from an incomplete date.

Kalaw v. Relova, 132 SCRA 237 Article 814 requires the authentication of any alteration in a holographic will. The failure to authenticate such alterations results in the invalidity of the desired change. However, where the testator canceled the name of the original heir, and substituted in lieu thereof another name, without the requisite authentication, the institution of the new heir is inoperative by reason of a failure to comply with the requirement of Article 814. Should the nullity of the alteration result in the effectivity of the original disposition? The court in Kalaw ruled in the negative, stating among other things, that the intention of the testatrix has become indeterminable.

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