Volume III, New Civil Code

In general

In its technical signification, succession is

restricted to succession
mortis causa

In its limited sense, pursuant to Art. 774, NCC,

succession denotes the transfer of title to
property under the laws of the descent and
distribution, taking place as it does, only
after the death of the person
In its generic or general sense, succession is
defined as the transmission of rights and
properties from one person to another.

It may be inter vivos (transfer is effective during

the lifetime of the giver) or mortis causa
(effective after his death)
 Kinds of Succession
Existence of Will
Effectivity (Art. 778) Transferee Extent or rights

Inter vivos Testamentary (Art. Compulsory succession Universal succession

779)
Mortis causa (Art.
Intestate or Legal Voluntary succession Particular succession
774)
Mixed succession
(Art. 780)

Special kind: Contractual succession – that kind where a future husband and future wife give to each other future
property, effective mortis causa, by means of a marriage settlement
Definitions

What is succession? Decedent and Testator

Art. 774 – Mode of acquisition by virtue of which the Art. 775 – the person whose property is transmitted
property, rights and obligations to the extent of the through succession, whether or not he left a will
value of the inheritance, of a person are transmitted
through his death to another or others either by his Art. 775 – if he left a will, he is also called the
will or by operation of law testator

Heirs, devisees and legatees (Art. 782)

Inheritance
Heir – person called to the succession either by
Art. 776 – it is the property or right acquired; as provision of the will or by operation of law
compared to succession which is the manner by virtue
of which the property or right is acquired Legatee – succeed to particular personal property
(legacies)
Devisee – succeed to particular real property (devises)
Elements:

1. It is a mode of acquisition Importance: Succession allows the transfer of private

property. Without succession, private property will
2. Transfer of property, rights and obligations to the become res nulius
extent of the value of the inheritance of a person
(called grantor or transferor, decedent, testator or Bases for succession:
intestate)
1. The natural law which obliges a person to provide
3. Transmission through death (Art. 777) for those he would leave behind (this is a consequence
of family relations)
4. Transmission to another (called grantee, or
transferee, heir, legatee or devisee) – Art. 782 2. A socio-economic postulate which would prevent
wealth from becoming inactive or stagnant
5. By will or by operation of law (testamentary or
legal succession) 3. The implicit attributes of ownership which would be
imperfect if a person is not allowed to dispose of his
property even if he is already dead
What are transmissible

Art. 776 – inheritance includes all the property, rights Rights: some rights are not extinguished by death
and obligations of a person which are not extinguished
by his death Examples: right to bring or continue an action for
Art. 781 – The inheritance of a person includes not forcible entry or unlawful detainer; right to compel
only the property and the transmissible rights and the execution of a document necessary for
obligations existing at the time of his death, but also convenience; right to continue a lease contract either
those which have accrued thereto since the opening of as lessor or lessee; property right to an insurance
succession
Some rights that are extinguished by death
Property – includes real and personal properties
(important to determine the ownership of the Examples: right to hold public office; rights arising
properties involved) from certain relationships (trustee, usufructuary);
rights arising from civil personality and family
Transferees to own accessions to the property (not relations (marital rights, right to support,
strictly inherited because they form part of the partnership, agency); right to claim acknowledgment)
estate only after the heirs become the owners thereof
What are transmissible

Rights arising from contracts are transmissible Obligations are also transmissible

Except:
Except:

Purely personal; Purely personal;

Non-transferable by nature; Non-transferable by law or contract;
Prohibited by law; Waived by obligee
Non-transferrable by stipulation
Testamentary Succession

Testamentary succession may be done

through a will or a codicil

A will or codicil may be:

a. Notarial (ordinary, attested or

acknowledged)

b. Holographic (handwritten by testator

Art. 779 – Testamentary succession is that from beginning to end, complete with date
which results from the designation of an and signature)
heir, made in a will executed in the form
prescribed by law In case of doubt, testamentary succession is
preferred to legal or intestate succession
(Art. 791)
Elements and characteristics of a will:

Art. 783 – A will is an act whereby a person is 2. Unilateral – purely unilateral on the part of the
permitted, with the formalities prescribed by law, to testator (no acceptance by the transferees is needed
control to a certain degree the disposition of his while the testator is still alive)
estate, to take effect after his death

3. Solemn and formal act (executed in accordance with

1. Statutory right (seen from the phrase ”permitted … the formalities prescribed by law)
to control to a certain degree)
The validity of a will is determined by the law in the
4. The testator must be capacitated to make a will
place at the time the will was executed
(Arts. 796 to 798) and it is free from vitiated consent
A will must always conform to the solemnities (executed freely, knowingly and voluntarily,
prescribed by the law. Any disposition of property otherwise it will be disallowed (Art. 839)
intended to take effect mortis causa that is not
contained in a valid will is not consistent with the
form prescribed by the CC thus cannot be given any
effect
Elements and characteristics of a will:

5. It disposes of the testator’s estate (totally or Non-delegation (Art. 785): a. determination and
partially) in accordance with his wishes but to a designation or institution or heirs (power to name the
certain degree only because legitimes are reserved beneficiaries of a will can only arise from the pure
for compulsory heirs discretion of the testator. Such exercise of discretion
cannot be limited by the law except upon
6. There must be animus testandi (intent to make a disqualification of certain classes of persons)
will) – it is gratuitous or liberal in nature; a will
executed without animus testandi is without effect b. Determination of how much and what property is to
be given

7. Personal act in all matters that are essential (in Art. 786 – allows the distribution by third persons of
disposing of the property belonging to the testator, specific property or sums of money to specified
he/she cannot be interfered by another person. classes or causes and designation of persons,
Otherwise, the testamentary disposition or the entire institutions or establishments to which such property
will will be invalidated – Art. 784 or sums of money are to be given or applied
Elements and characteristics of a will:

8. It is ambulatory and revocable Joint will – it is a kind of will of 2 or more persons

contained in the same instrument and by the same act,
A will is ambulatory (produces effects only after the
whether by their reciprocal benefit or for the benefit
death of the testator) hence it is essentially
of a third person (Art. 818)
revocable during the lifetime of the testator

Art. 828 – A will may be revoked by the testator at any Reciprocal will – will of 2 or more persons in separate
time before his death. Any waiver or restriction of this instruments that provide for their mutual benefit or
right is void. for the benefit of a third person

9. It is an individual act if executed by a Filipino,

10. It is effective mortis causa (it produces effects
whether in the Philippines or abroad
only after the death of the testator; heirs have no
Joint wills are prohibited between Filipinos even vested rights until after death – Art. 777)
though executed in a foreign country and valid in said
country (Art. 819)
Rules on Interpretation of Wills

Whenever there is doubt or conflict in the

interpretation of testamentary dispositions,
consider the animus testandi of the testator

Testacy is preferred over intestacy. Any

interpretation that would render a will void
should be avoided. The interpretation that would
make the will or its parts valid and operative
Art. 788 – If a testamentary disposition admits of should be favored
different interpretations, in case of doubt, that
interpretation by which the disposition is to be If there is a conflict between the words used in the
operative shall be preferred. will and the intent of the testator, the conflict
must be resolved, and the court must not
immediately invalidate the will or the
testamentary disposition
Rules in the interpretation of a will:

Art. 789 – When there is an imperfect description, or Art. 790 – The words of a will are to be taken into their
when no person or property exactly answers the ordinary and grammatical sense, unless a clear
description, mistakes and omissions must be intention to use them in another sense can be
corrected, if the error appears from the context of gathered, and that other can be ascertained.
the will or from extrinsic evidence, excluding the oral Technical words in a will are to be taken in
declarations of the testator as to his intention; and their technical sense, unless the context clearly
when an uncertainty arises upon the face of the will, indicates a contrary intention, or unless it
as to the application of any of its provisions, the satisfactorily appears that the will was drawn
testator’s intention is to be ascertained from the solely by the testator, and that he was unacquainted
words of the will, taking into consideration the with such technical sense.
circumstances under which it was made, excluding
such oral declarations
Rules in the interpretation of a will:
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

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.
Rules in the interpretation of a will:
Kinds of ambiguity in a will: Patent or extrinsic ambiguity – that which appears on
the face of the will itself; in other words, by
Latent or intrinsic ambiguity – that which does not examining the provision itself, it is evident that it is
appear on the face of the will and is discovered only not clear
by extrinsic evidence; ambiguity is not found in the will
itself, which is clear. The doubt arises only because of How do courts settle these kinds of ambiguities:
things outside the will
1. By examining the will itself;
Arises: 1. when there is an imperfect description of the 2. By adducing evidence aliunde - evidence outside the
heir, legatee or devises; will to prove the intent of the testator (only written
2. When there is an imperfect description of the gift evidence or written declaration that would clarify
being given; the intent of the testator. Oral evidence is prohibited –
3. When only one recipient is designated but it turns as this can result to fraud, confusion and unfairness
out that there are more or who fit the description to the dead man whose words may be distorted or
perjured)
Validity of a will:

Art. 795 – The validity of a will as to its form depends Intrinsic validity – refers to the legality of the
upon the observance of the law in force at the time it provisions of an instrument, contract or will; may
is made also be from viewpoint of time and place

Extrinsic validity – refers to form and solemnities Time: successional rights are governed by the law in
needed (number of witnesses to a will, kind of force at the time of the decedent’s death
instrument, vitiated consent or testamentary
capacity); may also be from the viewpoint of time and
the viewpoint of place Place or country: the national law of the decedent,
that is the law of his country or nationality,
Time: what must be observed is the law in force at the regardless of the place of execution or the place of
time the will is made (Art. 795) death
Place or country: what law must be observed
depending on whether testator is a Filipino or an alien
who
 Extrinsic Validity Intrinsic Validity
Time of Execution Tine of Death

Filipino in the
Philippine Law Philippine Law
Philippines

Philippine Law
Philippine Law (Art. 16 (2),
Filipino abroad Lex loci celebrationis (except joint NCC)
wills)

Lex Nationalii National Law (Basis: Art. 16(2)

Non-Filipino in the
subject to the renvoi and
Philippines
Philippine Law processual presumption)

Lex Domicilii
Art. 16(2) subject to the renvoi
Non-Filipino Abroad Lex Nationalii
and processual presumption
Philippine Law (Lex loci celebrationis)
Testamentary Capacity
Art. 796 – All persons who are legally capacitated can Testamentary capacity may be classified:
execute a will. This power is reserved only to natural
1. Active testamentary capacity – capacity to make a
persons and not to juridical persons
will or codicil
2. Passive testamentary capacity – capacity to receive
by virtue of a will
Testamentary power – statutory right to dispose of
property by acts effective mortis causa; privilege Active testamentary capacity (to make) is often
granted by the law to someone to make a will referred to as testamentary power while passive
testamentary power (to receive) may also be referred
to as plain testamentary capacity
Testamentary capacity – right to make a will provided
certain conditions are complied with – testator not
prohibited to make a will, of sound mind at the time of
the execution of the will; ability of one to make a will
Who are capacitated to make a will?
Art. 797: persons of either sex Soundness of mind (Art. 798 – In order to make a will it
is essential that the testator be of sound mind at the
Age: persons under 18 years old cannot make a will
time of its execution.
(minors will always die intestate)
Art. 802 – A married woman may make a will without Art. 799 – To be of sound mind, it is not necessary that
the consent of her husband, and without the authority the testator be in full possession of all his reasoning
of the court faculties or that his mind be wholly unbroken,
unimpaired or unshattered by disease, injury or other
Art. 803 – married woman may dispose by will of all cause.
her separate property as well as her share of the It shall be sufficient if the testator was
conjugal partnership or absolute community property 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
Convicted felons: it incapacitates the accused of the act.
power to dispose of the property inter vivos but a
convict can execute a will because conveyances mortis
causa are not covered by civil interdiction
Who are capacitated to make a will?
Soundness of mind (Art 800 – The law presumes that It is not necessary that the testator possess full
every person is of sound mind, in the absence of proof mental capacity. It is enough that the testator has
to the contrary. knowledge of the following:
The burden of proof that the testator was
not of sound mind at the time of making his 1. Nature and extent of the hereditary estate;
dispositions is on the person who opposes the probate
2. Proper objects of his bounty (who are be
of the will; but if the testator, one month or less,
beneficiaries);
before making his will was publicly known to be
insane, the person who maintains the validity of the 3. Character of the testamentary act (that it is
will must prove that the testator made it during a executed inter vivos, effective mortis causa and
lucid interval purely liberal or gratuitous in character and that it
is essentially revocable)
Art. 801 – Supervening incapacity does not invalidate
an effective will, nor is the will of an incapable
validated by the supervening event
Who are capacitated to make a will?
Guidelines on soundness of mind: 3. Supervening incapacity will not invalidate a will.
What is material is the time of the execution of a will
1. Presumption of sanity (Art. 800 (1) – whoever
challenges the will has the burden to prove the
unsoundness of mind of the testator 4. Supervening capacity will not cure an invalid will
(example: upon reaching the age of majority, mere
execution of the minor of an affidavit acknowledging
2. Presumption of insanity (Art. 800 (2) the will he executed when he was still a minor does
a. If the testator, one month or less before making the not validate the will)
will was publicly known to be insane – one who
maintains the will’s validity must prove that the will
was made during a lucid interval

b. If the testator made the will after he had been

judicially declared insane and before such judicial
order had been set aside
Forms of Wills 2. The language or dialect which the will is written
is one that is known to or familiar with the
testator
Purpose of formalities of wills:
1. To ensure that the intent and desires of the Kinds of formal wills:
testator are followed and implemented;
1. Notarial will - that which requires, among other
things, an attestation clause and acknowledgment
2. To prevent persons not intended by the testator before a notary public
from benefitting from the hereditary estate;
2. Holographic will – it is being written entirely,
3. To close the door against fraud. from the date to the signature, in the handwriting
of the testator (attestation clause or
acknowledgment before a notary public is not
Twin requirement of all kinds of wills in the
needed)
Philippines:

Art. 804: 1. the will must be in writing; Noncupative wills – wills orally made in
contemplation of death and before competent
witness (not recognized in CC)
Notarial Will

(5) The will must be subscribed at the end thereof

by the testator himself or by the testator’s name
written by another person in his presence and by
his express direction; (6) it must be attested and
subscribed by 3 or more credible witnesses in the
presence of the testator and of one another; (7)
the testator or the person requested by him to
write his name, and the instrumental witnesses of
the will shall sign each and every page thereof
Art. 805 talks of the requirements for the extrinsic except the last, on the left margin; (8) all the
validity of a notarial will. Aside from the pages shall be numbered correlatively in letters
fundamental requisites that: (1) the testator be at placed on the upper part of each page; and (9) it
least 18 years old, and (2) possessed of sound mind, must contain an attestation clause
that the will (3) must be in writing and (4) in a
language or dialect known to the testator;
Subscription of a Notarial Will
How: 1. by writing the name of the testator only
Subscription: act of affixing a signature on a document
or instrument, with a manifestation to be bound by the 2. By writing the name of the testator and the name of
contents of the document, and for purposes of the person assigned
identification
Where: 1. logical end or bottom – after the last
Who: 1. by testator – may use the full or customary testamentary disposition, to conclude the
signature, or nay mark or symbol that was used by the testamentary act of the testator
testator for as long as affixed by animus testandi
2. If multiple pages – name and signature of the
testator must appear in each and every margin of the
2. By some other person – person assigned by the pages
testator writes the name of the testator in all the
places required by law and does in the presence of and Express direction – must be expressly authorized to do
under the express direction of the testator so (mere knowledge on his part that his will is being
signed in his behalf or his acquiescence to such act is
not sufficient
Issues on subscription Even if the testator’s hand is being guided by another
when the signing or marking is made, the signing will
still be valid and will be considered as having been done
If the will is not signed at the end but somewhere else,
by the testator himself
the will is not valid
If after the signature there are additional clauses or
Testator may sign with a mere cross if he intends that to
provisions, the whole will will be considered void
be his signature but if someone else writes the
testator’s name, the mere placing by the testator of a
If the testator’s first name appears without the cross after his name, without there being in the will a
surname, the will is valid statement that somebody had signed for the testator is
not sufficient
If the testator’s name is misspelled, abbreviated or by
nickname, or in an assumed name, this is all right
provided the testator intended the same to be his Delegate must sign in the testator’s presence (this does
signature not necessarily means that the testator must actually
see the signing, it is enough that he could have done so,
A testator can sign with his thumbmark or with his or felt it (like when testator is blind) without any
initials or even with a rubber stamp or an engraved dye, physical obstruction
provided he intends the same to be his signature
Attestation of a Notarial Will
Test of position: for as long as the testator and the
Attestation: mental act of observing and taking and witnesses are in the same room for the same act, they
making a mental note that the formalities prescribed don’t have to see one another
by law are observed during the proceedings
Test of knowledge: after attestation, the witnesses
need to affirm what they had attested to by placing
“In the presence” does not necessarily require actually their signatures in the notarial will
seeing but the possibility of seeing without any physical
obstruction
Test of Available Senses: if the testator is blind, the
Purpose: to avoid fraudulent substitution of the will; “presence” may be complied with if the signing or action
to make more difficult the invention of false testimony is within the range of the other senses like, hearing,
by the witnesses since they may be the witnesses of one touching of the testator. What is important is that he
another realizes what is being done.

Test of Sight: they need not actually see

Attestation of a Notarial Will
6. Not blind;
It is important that the testator signs in the presence
7. Have not been convicted by final judgment of the
of the witnesses. If he brings to their attention a
following crimes (Art. 821):
document purportedly to be a will but already
previously signed, the requirements have not been Falsification; false testimony; prejury
complied with
How many witnesses to attest: at least 3
Who may be witnesses to a will (Art. 820):
A beneficiary may be a witness to the will. However, as a
1. At least 18 years of age; sanction, he cannot receive the gifts given to him in the
2. Of sound mind; will, unless there are other witnesses sufficient in
number, then he beneficiary-witness can inherit (Art.
3. Resident of the Philippines (Art. 821); 823)
4. Able to read and write (need not know the language Creditors may be witnesses to the will however he is
of the will or the attestation clause) disqualified to inherit (Art. 824)
5. Not deaf and dumb;
Attestation Clause of a Notarial Will
If the attestation clause is not signed by the attesting
Mandatory parts of an attestation clause: witnesses the will is void since omission negates the
participation of said witnesses
1. Number of pages of the will

2. That the testator signed or expressly caused

The attestation clause is the act of the witnesses,
another person to sign the will and every page thereof
hence it need not contain the signature of the testator
in the presence of the instrumental witnesses

3. That the instrumental witnesses witnessed and While the witnesses are not required to know the
signed the will and all the pages thereof in the language of the attestation clause, it is sufficient that
presence of the testator and of one another it be translated to them

Absence of attestation clause is a fatal defect

Acknowledgment of a Notarial Will
The notary public does not have to be present at the
Art. 806: every notarial will must be acknowledged execution of the will. What is required is that the will
before a person authorized by law to administer oaths be attested in the presence of the testator and all the
(notary public) subscribing witnesses

Purpose: to certify the genuineness and due execution The notary public is not even required or even allowed
of the last will and testament to read the will or to know the contents of the will,
unless the testator permits him to do so. The only
The presumption that the document is validly executed instance he is required to do so is in the case of a blind
does not apply to wills because there is a need to prove testator
the same

The fact that the notary public shall not be required to The notary public cannot be one of the three (3)
retain a copy of the will, or file another with the office instrumental witnesses
of the Clerk of Court is proof that a notarial will is not
a public instrument although acknowledged
Deaf, Deaf-mute or Blind Testator

Art. 807 – if the testator is deaf or deaf-mute Art. 808 - if the testator is blind

Requisites: Requisite: it shall be read to him twice (one by one of

the subscribing witnesses and again by the notary
1. He must personally read the will, if able to do so public before whom the will is acknowledged

2. If illiterate, two (2) persons must communicate its Purpose: to inform the blind of the contents of the
contents to him instrument and to give the blind testator the
opportunity to affirm or reject the contents.
The two persons designated need not be the attesting
witnesses

It is not essential however to state this fact in the In both instances, the deaf-mute and the blind can make
attestation clause because it will still have to be a will but cannot be a witness to a will
proven during the probate
Holographic Will
Where must testator sign:
a. At the logical end;
b. On every alteration, insertion or erasure (Art.
814) – in order to authenticate such alteration,
insertion or erasure

If there is no authentication:
a. Entire will is void; or
Art. 810 – A holographic will is one that is entirely b. The provisions that contained alterations,
written, dated and signed by the hand of the insertions or erasure are nullified
testator

Requisites: 1. entirely written by hand of the

testator; 2. dated by the hand of the testator; 3.
signed by the hand of the testator; 4. language
must be known to the testator
Issues on Holographic Wills

Written by hand – cannot be typewritten, printed or Dispositions: allowed even after the testator has
mimeographed finalized making his holographic will
Dispositions after the signature must be dated and
Date: must be complete and must appear beside
signed by the testator to be valid (Art. 812)
every post-script disposition

No witnesses are required (Art 810), no marginal Art. 813 – where several dispositions where signed but
signatures and no acknowledgment required not dated and the last disposition has a signature and
date, such will validate the dispositions preceding it,
whatever the time of the prior dispositions were made
It may be made in or out of the Philippines, even by
Filipinos (Art. 810)
If signed but not dated - invalid
Blind testator: as long as he is literate, at least 18 and
possessed of a sound mind
Probate of Holographic Wills

Art. 811 – Probate of a holographic will will only be If no witness is available, experts may be called upon,
allowed to be probated if there are witnesses otherwise the will may be frustrated through no fault
presented in court of his own

Witnesses must know the handwriting and signature of The will itself must be presented
the testator and they must explicitly declare that the
If a holographic will is lost or destroyed without
will and the signature are in the handwriting of the
intent to revoke and no copy is available, it can never b
testator
e probated because the best and only evidence is the
handwriting of the testator in said will
If the will is uncontested: only 1 witness is necessary
However, a photocopy of the will is sufficient if a copy
is the only one that can be presented because there can
If contested – at least 3 witnesses shall be required be a comparison of the handwriting
Annexes to a Will

Art. 825 – Codicils are supplements or additions to a In case of conflict between will and codicil, it is
will, made after the execution of a will and annexed to understood that the codicil should prevail, it being the
be taken as a part thereof later expression of the testator’ wish

Formalities of codicil (Art. 826):

Reason for the execution of a codicil: It must be executed in the same form as the main will
a. The necessity to explain some parts of the will which
may have been sources of ambiguity or doubt Therefore, it may be a notarial codicil or a holographic
codicil
b. To add to or supplement the main will
c. To change or amend or alter some or all of the
provisions of earlier will
d. To revoke an earlier will
Annexes to a Will

Art. 827 – Incorporation by reference: the will 4. It must be signed by the testator and the witnesses
incorporates by reference any document or paper, such on each and every page, except in case of voluminous
will not be considered a part of the will, unless: books of accounts or inventories

1. The document or paper referred to in the will must be Witnesses to the document will be the same witnesses
in existence at the time of the execution of the will to the will
During probate, the document or paper must be proved
2. The will must clearly describe and identify the same, by clear and convincing evidence that it is the same
stating among other things the number of pages paper/document that was referred to by the testator
thereof; in the will. Otherwise, the paper or document will be
disregarded
3. It must be identified by clear and satisfactory proof
as the document of paper referred to therein; and
Revocation of a Will

Art. 828 – Revocation of a will may be done at anytime If not domiciled: follow the law of the place where the
before the death of the testator will was made or follow the law of the place where the
testator was domiciled
This is because a will is ambulatory in nature
If domiciled in the Philippines: Philippine law or follow
the general law of lex loci celebrationis

Art. 829 – talks of the law which will be followed when If revocation is made in the Philippines, follow
revocation is done in the Philippines or outside Philippine law

If revocations is outside the Philippines, determine if

the testator is domiciled in the Philippines or not
Revocation of a Will

Art. 830 – Ways by which revocation can take place 1. BY IMPLICATION OF LAW
Certain acts or events take place after a will has been
1. By implication of law made, rendering void or useless either the whole will
or certain testamentary dispositions therein
2. By some will, codicil or other writing executed as
provided in case of wills;
Rationale: there may be changes in the family or
3. By burning, tearing, cancelling or obliterating the domestic relations or in the status of the property
will with the intention of revoking it

Examples: there is legal separation between the spouse

(institution of guilty spouse deemed revoked); when
testator, after the will was made, sells or donates the
legacy or devise); heir, legatee or devisee commits an
act of unworthiness; when all compulsory heirs have
been preterited or omitted
Revocation of a Will
3. REVOCATION BY MUTILATON
2. REVOCATION BY SUBSEQUENT WILL OR CODICIL By burning tearing, cancelling or obliterating
Burning: subject the paper over heat or fire
Revocation in this way may be express or implied (Arrt.
831 - implied revocation consists in complete It is sufficient even if a small part of the
inconsistency between the two wills) instrument itself be burned even thought the
entire writing itself be left untouched
If the will is burned accidentally, there is no
How is revocation made: a later instrument be executed
revocation as there is lack of intention
by the testator in the same form as that of the will
Tearing: cutting into pieces
It is essential that the revoking will be itself a valid A slight tear is considered sufficient
will otherwise there is no revocation
Doctrine of dependent relative revocation – a void will If the tearing is unintentional then there is no
or codicil cannot revoke a valid will revocation but the same must be proved
Revocation of a Will

2. REVOCATION BY MUTILATION Requisites:

1. Testator must be of sound mind at the time of

Cancelling: to draw a straight line mutilation
Obliterating: to blacken out so that the original text
2. There must be an overt act of destruction
cannot be seen
Must be done by the testator or some other
Either of the two will revoke a will, totally or person acting in the presence of and in the
partially express direction of the testator
If all parts are cancelled or obliterated, or if the
signature is cancelled or obliterated, the whole will is
3.That at the time of the performance of mutilation, the
revoked
testator must be prompted by animus revocandi
Cancellation or obliteration or non-vital part leaves
the other parts in force
4. There must be a meeting of both the subject phase and
the objective phase
Revocation of a Will
If some other person interfered with the right of the Effect of valid revocation
testator to destroy his will, the will is still revoked.
1. It the revocation is complete or total – it cannot be
given effect
If the one who interfered is among the heirs named by 2. If the revocation is partial – it may be submitted for
the testator in his will, he can no longer inherit probate

Art. 833 – if the revocation of a will was based on a

If the animus revocandi was not completed, such that
false cause or an illegal cause, the revocation is null
the testator changed his mind while the will is being
and void
burned and saved the same, the will is not revoked
Doctrine of Dependent Relative Revocation: applies
when the testator cancels or destroys a will or
Presumption of Revocation executes an instrument intended to revoke a will with a
Gayo vs. Mamuyac – If the will is under the exclusive present intention to make a new testamentary
custody of the testator, and the same cannot be found disposition as a substitute for the old, and a new
after his death, it is presumed that the will had been disposition is not made or, if made, fails to effect for
revoked the same reason
Republication and Revival of a Will
Art. 835 - Republication – act of giving effect to either a
will that is void as to form or to a will that has been
earlier revoked
How:
1. If void as to form – re-execute the will to comply with
the form required by law (all the dispositions must be
reproduced or copied in the new or subsequent will)

2. If the will is valid as to its form but has been earlier

revoked
a. re-execute the revoked will
b. Subsequent will or codicil – by incorporation by
reference (Art. 836)
Republication and Revival of a Will

Art. 837 – talks of Revival of a will Effect of the revocation of the revoking will on the
first will that was revoked”
Revival is one that takes place by operation of law. It is
1. If the first will was expressly revoked by the second
the restoration or reestablishment of a revoked will
will, the revocation of the second will by the third will
or revoked provisions
will not revive the first will
There must be at least three (3) instruments executed Principle of Instanter – an express revocation is
by the testator immediately final and executory. It does not need to
await the death of the testator for it to take effect

2. If the first will was impliedly revoked by the second

will, the revocation of the second will by the third will
will revive the first will by operation of law
Probate of a Will (Art. 838)

Probate – act of proving before a competent court the During the probate proceedings, the court:
due execution of a will by a person possessed of
1. Orders the probate proper of the will
testamentary capacity, as well as approval thereof by
the court 2. Grants letters testamentary or letters with a will
annexed
Two kinds of probate: 3. Hears and approves claims against the estate
1. Ante Mortem probate: probate during the testator’s
lifetime
4. Orders the payment of the lawful debts
2. Post Mortem probate: probate after the testator’s
death 5. Authorizes the sale, mortgage or any other
encumbrance of the real estate
The allowance of the will, either during the lifetime of 6. Directs the delivery of the estate or properties to
the testator or after his death, is conclusive as to the those who are entitled thereto
due execution of the will
Probate of a Will

Even if only one heir has been instituted, there must In ante-mortem probate, it is the testator who files a
still be the judicial order of adjudication petition before a competent court for the probate of
his will
An exception to the probate of a will if the heirs will
Procedure in an ante-mortem probate follows the
extrajudicially agree to partition the property in
procedure of a post-mortem probate
accordance to the terms of the will

However, if an heir not included in the partition Reason for allowing an ante-mortem probate:
feels aggravated, the only remedy is to ask for the To prevent or minimize fraud, intimidation and
probate of the will undue influence; and to enable the testator to
correct at once failure to observe the legal
requirements
After a will has been probated during the lifetime
of the testator, it does not necessarily mean that
the testator cannot alter or revoke the same
before his death
Probate of a Will

Post-mortem probate (parts of proceedings): With respect to the extrinsic validity of the will, as
long as there has been final judgment by a court of
1. Probate proper (this deals with the extrinsic
competent jurisdiction, the probate proper or
validity)
allowance of the will is binding upon the whole world
2. Inquiry into the intrinsic valid and the in so far as the testamentary capacity of the testator
distribution of the property itself is concerned and as to the due execution thereof

In court, there must be proof of death (actual or

presumed), publication of the notice of hearing and the
What is a court of competent jurisdiction?
compliance of all the formalities required by law
The RTC of the province: (1) where the testator has
a real estate (in case of non-resident testator); or
(2) where the testator resides at the time of his
death (in case of resident testator)
Issues on the Probate of a Will

Probate of a will should only deal in the extrinsic Examples of intrinsic validity and thus must not be
validity of a will and never with intrinsic validity. Any passed upon during probate: Exclusion of an heir from
issues on the intrinsic validity may still be questioned the inheritance; disinheritance of an heir; impairment of
even after the will was probated the legitime; declaring a certain woman as the true wife
of the testator; partitioning of the conjugal
properties; or titles to property and annulment of
Generally, a probate court has no jurisdiction to decide alleged fraudulent sales
question of ownership of a property

Exceptions: 1. When the parties voluntarily submit this

These issued may be brought in a different or later
matter to the court
proceedings but not in the probate proceedings. Even
2. When the court may provisionally act thereon, the after probate proceedings have been conducted, the
ownership is passed only to determine whether or not decision thereon will not act as res judicata
the property involved is part of the estate
Disallowance of a Will (Art. 839)

Grounds (these are exclusive and no other grounds can 3. If it was executed through force or under duress, or
serve to disallow a will: the influence of fear, or threats
It connotes the idea of coercion, mental or
1. If the formalities required by law have not been
physical thus renders the will void
complied with
If there is failure to have the will attested, it was 4. If it was procured by undue and improper pressure or
not signed personally by the testator or another influence, on the part of the beneficiary or of some
person upon his instructions and in his presence, or other person
it was not acknowledged It connotes the idea of coercion by virtue of which
the judgment of the testator is displace and he is
2. If the testator was insane, or otherwise mentally induced to do that which he otherwise would not
incapable of making a will at the time of its execution have done
There is undue influence when a person takes
Capacity of the testator to make a will improper advantage of his power over the will of
another, depriving the latter of a reasonable
freedom of choice
Disallowance of a Will (Art. 839)

5. If the signature of the testator was procured by 6. If the testator acted by mistake or did not intend
fraud that the instrument he signed be his will at the time of
affixing his signature
Fraud is the use of insidious machinations to
convince a person to do what ordinarily he would It connotes the idea of coercion, mental or
not have done; it is trick, secret device, false physical thus renders the will void
statement or pretense by which the subject is
cheated or misled or deceived Revocation vs. Disallowance/Annulment
Revocation: voluntary Disallowance: given by
For fraud to vitiate the will, there must be intent act of the testator, with judicial order and will
to defraud or without just cause always be for a legal
done during his lifetime; cause; it is done post-
The intent to defraud and the nature of the fraud it may be partial or mortem upon probate or
must be proved in Court total upon settlement of
estate; it is always total
or complete
Intrinsic Validity of the Will (Arts. 840-959)
When a testator executes a will, he must have freedom Who are compulsory heirs (Art. 887):
of disposition
1. Legitimate children and descendants, with respect to
Freedom of disposition pertains to the right of the their legitimate parents and ascendants;
testator to dispose of his property in any manner that
will take effect after his death provided that such 2. In default of the foregoing, legitimate parents and
disposition shall not impair the legitime ascendants, with respect to their legitimate children and
descendants;
Legitime: That part of the testator’s property which he 3. The widow or widower;
cannot dispose of because the law has reserved it for
certain heirs, who are therefore called compulsory 4. Acknowledge natural children, and natural children
heirs by legal fiction
5. Other illegitimate children referred to in Art. 287

Note: Under the Family Code there are no spurious

children. They are simply called illegitimate children
Intrinsic Validity of the Will

Art. 840 – Institution of heirs: act by virtue of which a

testator designates in his will the person or persons who
are t succeed him in his property and transmissible rights 4. The testator must personally institute the heir
5. The instituted heir must be clearly identified (they
must be certain or ate least ascertainable in identify)
Requisites:

1. The will must be extrinsically valid; 6. It must be within the authority given by law to the
testator
2. The will must comply with the relevant provisions of
substantive law (no preterition, no impairment of 7. It must be of true and genuine cause
legitimes, instituted heirs must have capacity to succeed)
8. the heir must be alive, willing, capacitated and not
disqualified to inherit
3. The will must be free from vices of consent
Institution of Heirs
Art. 841 – Non necessity of institution of heirs Rules on Freedom of Disposition (Art. 842)

A will shall be valid even though: If the testator has no compulsory heirs: testator can
give his estate or any portion thereof to anybody
1. There is no institution of heir qualified to inherit from him provided he must respect
2. The instituted heir is given only a portion of the the restrictions imposed by special laws
estate

3. The heir instituted should repudiate or be If the testator does not have compulsory heirs (those
incapacitated to inherit who cannot be deprived of their legitimes): the testator
must respect the legitimes (unless there be a valid
In such cases, the testamentary dispositions made in cause for an express disinheritance); the free portion
accordance with the law shall be complied with, the can however be given to anybody
remainder of the estate shall pass to the legal heirs
(subject to intestate proceedings)
Institution of Heirs
How to designate an institute heir Mere error in designation of the name or circumstances
is not important as long as the intent is clear and there
Art. 843: the testator shall designate the heir: is positive identification
1. By his name and surname
However, if there is no possible way to identify and
2. Two persons having the same names, they shall
instituted heir (having the same name and surname or
indicate some circumstance by which the instituted heir
similarity in the circumstances), none of them shall be
may be known
an heir
3. If omitted the name of the heir, the heir should be
designated in such manner that there can be no Art. 845 – disposition to an unknown person shall be
doubt as to who has been instituted void, unless by some event or circumstance the identity
becomes certain
Disposition in favor of a definite class or group of
Art. 844: Effect of error or misdescription persons shall be valid
Misdescription may also be corrected even by extrinsic
evidence
Institution of Heirs
Principle of Equality

Art. 846 – Heirs who are instituted without a Art. 848 – If the testator institutes his brothers and
designation of shares shall inherit in equal parts sisters, and he has some of full blood and others of
half blood, the inheritance shall be distributed
equally, unless a different intention appears
All members of the group will inherit shares unless
otherwise provided by the testator
Reason: if indeed the affection is different based on
This refers to the free portion only, thus the legitime their degree of relationship, then the testator should
must first be removed and what remains will be divided have given expressly a double share to the full blood
equally brother
Reason for the rule: the law merely expresses what
is presumes to have been the testator’s intention
because had he desired otherwise, he should have
been more specific
Institution of Heirs
Principle of Individuality Principle of Simultaneity

Art. 847 – Heir collectively instituted are deemed Art. 849 – When the testator calls to the succession a
individually instituted unless contrary intent is person and his children, they are deemed to have been
proven. instituted simultaneously and not successively

The testator does not need to identify by name all the

members of the group since they are considered heirs as Refers not to the testator’s children but to the
if named individually children of the person instituted also an an heir
If the testator instituted collectively with other heirs
a compulsory heir, the rule is give first the compulsory When several heirs are instituted, they are instituted
heir their legitime then divide the balance between the simultaneously and not successively, unless the
compulsory heir and the other heirs who were contrary is proved. It means that the heirs instituted
collectively instituted together shall inherit at the same time

Example: “I institute A, B and my three children”

Illustrations:
Arts. 846, 847 and 848

T instituted his two sons A and B and his siblings X, Y Z as

universal heirs to inherit 1M

Heirs Legitime Institution Total

A 250K 100K 350K
B 250K 100K 350K
X 100K 100K
Y 100K 100K
Z 100K 100K
Total 500K 500K 1M
Illustrations:
Art. 849

T instituted A and B and the children of C (X, Y and Z) to

inherit an estate of 1.5M

Heirs Institution (no designation Total

of group)
A 360K 360K
B 360K 360K
X 360K 360K
Y 360K 360K
Z 360K 360K
Total 1.5M 1.5M
Institution of Heirs
Institution with a false cause

Art. 850: The statement of a false cause for the The evidence of intent must appear in the will (the fact
institution of an heir shall be considered as not that the testator would not have made the institution
written, unless it appears from the will that the if he had known of the falsity of the cause, must appear
testator would not have made such institution if he had in the will itself)
known the falsity of such cause

Rule: the statement of an incidental false cause in the Cause for the institution may be a true cause (as it is
institution of an heir will not affect the validity of the given in generosity, liberality or affection) or
institution of the heir (it will be ignored as if it is incidental cause (the reason why the property is given
deemed not written) to the heir)

Except with respect to mistake of fact (the testator

would not have made such institution if he had known
the falsity of such cause)
Institution of Heirs

Requisites:
1. The testator must expressly state in the will the
incidental cause for the institution However, if the statement was: “I was about to institute
2. The cause must be shown to be false A, my friend, as my heir, but because I adore the bar
3. It must appear on the face of the will if the testator topnotchers, I hereby institute X, a stranger, as my heir
would not have made such institution if he had known because he topped the bar in 2019.” If X did not top the
the falsity of the cause bar exam, then he would not be able to inherit because
the testator would not have made such institution of X
if he had known of the falsity of the cause
Example: it is stated in the will: “I institute my student
X to be my heir for having topped the bar examinations
in 2019.” If X did not top the bar he will still be able to
inherit because there is a false cause or reason which is
considered as not written
Institution of Heirs

Scope of Institution (Arts. 851-853) Examples:

Art. 851 – if the institution does not wholly cover the (a) If the heir is given ¾, the remaining ¼ should go to
estate or partial intestacy the legal heirs

(a) The institution involves only one heir but is only (b) T instituted A 1/3 and B ¼ of the inheritance. The
limited to an aliquot part remaining 5/12 will go to the legal heirs by way of
intestate succession
(b) The institution involves several heirs but each are
limited to an aliquot part
Intestate succession will not apply to the remainder if
Effect: legal succession takes place with respect to the the same has been disposed of by way of legacies or
remainder of the estate devises

Art. 851 applies when there is a remainder or balance

and there is no intent to give all to the instituted heir
or heirs. If there is such intent, the remainder should be
divided proportionately, applying Art. 852
Institution of Heirs

Scope of Institution Applies only to the institution of sole heirs (group of

two or more heirs who are instituted by the testator
Art. 852 – if the intent is to give the entire estate but either to the entire estate or to a portion thereof)
there was incomplete distribution

If it was the intention of the testator that the Rule: each part shall be increased proportionally so
instituted heirs should become sole heirs to the whole that the whole estate or the free portion may be
estate, or the whole free portion, as the case may be, distributed
and each of them has been instituted to an aliquot part
of the inheritance and their aliquot parts together do Art. 853 – institution of aliquot parts to the instituted
not cover the whole inheritance, or the whole free heirs but total exceeds the estate
portion, each part shall be increased proportionately
Rule: reduce the respective shares of the heirs
proportionately but the legitime is never reduced

Intent of the testator is to give all only to those

instituted heirs
Preterition (Art. 854 to 856)

Preterition: Omission in the testator’s will of one, some 2. The person omitted is a compulsory heir in the direct
or all of the compulsory heirs in the direct line, line (parents, grandparents of testator or children,
whether living at the time of execution of the will or grandchildren of testator)
born after the death of the testator
The omission of a testator’s parents when the
testator institutes his own children is not
Requisites: preterition
1. There is a total omission in the inheritance
3. The omitted compulsory heir must survive the
Example of preterition: compulsory heir named in the testator, or in case the compulsory heir predeceased
will but not given any share although there is no the testator, there is a right of representation; and
express disinheritance
No preterition: given a share although small; not given 4. Nothing must have been received by the heir by
anything in the will but received a donation from the gratuitous title
testator (deemed an advance inheritance)
Preterition
Consequence: it shall annul entirely the institution of
heirs. It will necessarily effect the opening of a total
intestacy; legacies and devises shall be valid insofar as (2) If the testator institutes in his will a sister or
they are not inofficious brother as the only heir and fails to institute his
parents who are still alive, there is preterition.

Examples:

(1) T has three sons, A, B and C. T made a will instituting In case of preterition, the omitted heir gets his share
A, B and a friend F. C was omitted. not only of the legitime but also of the free portion
Since there is preterition, the institution is allowed.
Hence, A, B and C will get equal shares but F will get
nothing.
Preterition

Examples: b. Suppose in the same example, T deliberately omitted

B. How should the estate the distributed?
(2 ) Although the institution of heirs is indeed annulled,
the legacies and devises shall remain valid insofar as
they are not inofficious. In view of the preterition, the institution of A is not
valid but the legacy is effective. The division therefore
a. T has two sons A and B. In T’s will, he gave F, a friend, will be the same as in letter a
Php10,000 as a legacy out of an estate of Php100,000.00.
A and B were omitted. How should the estate be
distributed? c. In the same facts as letter a but the legacy was
Php60,000. How should the estate be distributed?

Since the estate if Php100,000 the free portion is

Php50,000. The legacy of F is not inofficious and should Since the legacy is inofficious and the free portion being
remain. The remaining Php90,000 will be divided equally only Php50,000, the legacy shall be reduced to said free
between A and B portion. The remainder will be divided equally by A and
B
Preterition
b. A and B are legitimate children of T. C is a legitimate
Art. 856 - Predecease
child of A. The estate is Php100K. A and B were instituted
If the voluntary heir dies before the testator, he as heirs
transmits nothing to his heir 1. If A dies before T, C will get only Php25K (the legitime
If a compulsory heir dies before the testator, a person of A) in representation of A. The remaining Php75K will
incapacitated to succeed and one who renounces the go to B
inheritance shall transmit no right to his own heirs 2. If A is incapacitated to succeed or he renounces the
inheritance, C gets nothing since a person who is
incapacitated or renounces an inheritance cannot be
Example
representated
a. T has a friend X whom he instituted as heir. If X dies
before T but he leaves a son Y, the son will not inherit
anything since X was a voluntary heir who predeceased In testate succession, the right of representation
the testator. The estate shout go to the intestate heirs covers only the legitimate. In intestate succession, it
of T covers the entire share of the person represented. The
whole would descend by the rules of intestate
succession