CIVIL LAW REVIEW; SUCCESSION

Atty. Martin Gacias

Quiz No. 1

1. Before his death, Mr. Paroro borrowed from Mr. Horhe P500,000.00 evidenced by a promissory
note. Mr. Paroro died without paying the debt. He left no property but is survived by his son,
Carl, who is making good in the motorcycle parts buy and sell business. Subsequently, Mr. Horhe
brought an action against Carl for the collection of P500,000.00 plus legal interest thereon on the
ground that, since Carl is the only heir of Mr. Paroro, he has inherited from the latter not only the
latter’s property, but also his rights and obligations. Will the action prosper? Decide.

A: No. The action will not prosper. Under the NCC, inheritance includes not only the property but also the
rights and obligations of the decedent which are not extinguished by his death, however, such rights and
obligations must be transmissible in character.

Monetary obligations which the decedent incurred during his lifetime are intransmissible as they do not
form part of the inheritance. Monetary obligation must be liquidated in testate or intestate proceedings for
the settlement of the estate of the decedent. It is the estate of the decedent which is charged with the rights
and obligations which survive after his death. It is the estate of the deceased which pays the money debt.

Q1: What is the causal element of succession? -The death of the decedent is the final cause of
transmission of successional rights. Art. 777: The rights to succession are transmitted from the
moment of the death of the decedent.

Q2: A died without a will and was survived by his three legitimate children: B, C and D.
Immediately upon the death of A, B sold his entire right to the inheritance to X, a third person, for
P50,000.

a. Is the sale valid?- After the death of the decedent, anyone of the heirs may enter into a contract with
respect to his share in the inheritance even before a partition is effected. However, the heir can sell
only his undivided share in the inheritance but not a particular part of the estate.

Before the death of the decedent: No heir may enter into a contract with respect to his future share in
the inheritance.

Art. 777: The rights to succession are transmitted immediately from the moment of the death of the
decedent. The heirs have only a mere hope or expectancy, absolutely inchoate in character, as to the
share in the inheritance.

Q3: : Is the principle enunciated under Art. 777 applicable only to actual death? - The principle
enunciated in Art. 777 also applies to presumptive death. Thus:

For an absentee to be presumed dead for the purpose of opening his succession, it is sufficient that
he is absent for at least 10 years, it being unknown whether or not he still lives.

a. If the absentee is at least 75 years old at the time of his disappearance, it is sufficient that he
has been absent for 5 years for the purpose of opening his succession.
b. If the absentee is under any of the circumstances enumerated under Art. 391 of the NCC-
Absence of 4 years shall be sufficient for the purpose of opening his succession.

2. Diego, a bachelor and was without any ascendant or descendant, wrote a last will and testament in
which he devised “all the properties of which I may be possessed at the time of my death” to his
favorite brother Poroy. At the time he wrote the will, he owned only one parcel of land but at the
time of his death, he owned twenty parcels of land. His other brothers and sisters insist that his
will should pass only the parcel of land he owned at the time the will was written, and did not
cover his properties acquired, which should be by intestate succession. Poroy claims otherwise.
Whose contention is correct? Decide.

A: Rule: Property acquired during the interval between the execution of the will and the death of the
testator, is not among the property disposed of unless it should expressly appear in the will itself that such
was the intention of the testator.
 3. During the proceedings for the probate of the will of Ardee, it was proved that while testator
Ardee and two instrumental witnesses, Jords and Ron, were signing the will and all the pages
thereof in the sala of Ardee’s house, the third witness, Gerald, was resting in the adjoining room
which was separated from the sala by a curtain. It is now contended by the oppositors of the will
that since Ardee, Jords and Ron did not sign the will and all the pages thereof in the presence of
Gerald, the will cannot be admitted to probate. If you are the judge, how would you decide the
case?

A: The true test of presence of the testator and witnesses in the execution of will is not whether they
actually saw each other sig but whether they MIGHT have each other sign, if they chose to do so, taking
into account their physical and mental condition and their position in relation to each other at the time of
the inscription of the signature.

4. If the testator is deaf or deaf-mute, or if he is blind, what are the additional formalities imposed
by law in the execution of an ordinary will?

A: If the testator is deaf or deaf mute: He must personally read it 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.

If the testator is blind, the will shall be read to him twice, once by one of the subscribing witnesses and
another by the notary pubic before whom the will is acknowledged.

Q1: How do you classify wills according to their form?

a. Ordinary Wills: A will executed in accordance with the formalities and solemnities prescribed under
Arts. 804-808. Holographic will is a written which must be entirely written, dated and signed by the
testator himself without the necessity of any witness.

Q2: What are the formalities required for the execution of an ordinary or notarial will:

It must be in writing
It must be written in a language or dialect known to the testator
It 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 under his express direction
It must be attested and subscribed by 3 or more 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 shall also sign
each and every page thereof, except the last, on the left margin
All pages of the will must be numbered correlatively in letters written in the upper part of each page.
The will must contain an attestation clause
The will must be acknowledge before a notary public by the testator and the witnesses

Q3: Differentiate attestation from subscription:

Attestation: The act of witnessing the execution of the will by the testator. Subscription is the act of the
instrumental witnesses in affixing their signatures to the instrument or will.

Q4: What is an attestation clause? What is the purpose of an attestation clause? What are the essential facts
which must be stated in an attestation clause?

An attestation clause is record or memorandum of facts wherein the instrumental witnesses certify that the
will has been executed before them and that it has been executed in accordance with the formalities
prescribed
by law. The purpose of an attestation clause is to preserve in a permanent form the facts attending the
execution of a will so that in case of failure of memory of the witnesses or in case they are no longer
available,
such facts may still be proved.

Essential facts which must be stated in the attestation clause:

a. The number of pages upon which the will is written
b. 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
c. The fact that the instrumental witnesses signed the will and every page thereof in the presence of the
testator and of one another.

Q5: What is the effect of an unsigned attestation clause?

An unsigned attestation clause results in an unattested will. An unsigned attestation clause cannot be
considered as an act of the witnesses since the omission of their signatures at the bottom (attestation clause)
negates their participation.

Q6: What are the formalities required in the execution of a holographic will?
 It must be entirely hand written, dated and signed by the hand of the testator himself
It must be written in a language or dialect known to the testator.

5. Ms. V died on April 1, 2022, leaving behind a holographic will which is entirely written, dated
and signed in her own handwriting. However, it contains insertions and cancellations which are
not authenticated by her signature. For this reason, the probate of Ms. V’s will was opposed by
her relatives who stood to inherit by her intestacy. May Ms. V’s holographic will be probated?
Explain.

A: The will may be probated. Under Art. 814 of the NCC: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate the same by his full signature. In this case,
the insertions and cancellations were void as they were not authenticated by the testator.

6. Suppose that after the death of the testator, only a copy of his holographic will which can be
found is a photocopy or xerox copy, may the will be admitted to probate? Reason.

A: The will may still be admitted to probate. The will may be allowed because comparison can still be
made with the standard writing of the testator. Photocopy or xerox copy of a lost or destroyed holographic
will may be admitted to probate because the authenticity of the handwriting of the deceased can be
determined by the probate court.

7. Mr. Ezra, a Russian citizen but a resident of New York City, New York, USA, executed a will in
Okinawa, Japan. May such will be probated in the Philippines and his estate in this country be
distributed in conformity with the provisions of the will? Explain.

A: The will of Mr. Ezra may be probated in the Philippines and his estate in this country may be distributed
in conformity with the provisions of the will, provided that the will was executed in accordance with the
formalities prescribed by any of the following:
a. The law of the place where Mr. Ezra resides (New Yor, USA)
b. The law of his country (Russia)
c. The NCC of the Philippines
d. The law of the place where the will was made.
Q1: If a will is made either in the Philippines or in a foreign country, what law shall govern its
formal validity?

If the testator is a Filipino and the will is executed in the Philippines: The formal validity of the will shall
be governed by the New Civil Code of the Philippines.

If the testator is a Filipino and the will is executed in a foreign country: The formal validity of the will shall
be governed either by (a.) The law of the place where the will is made or (b.) by the New Civil Code of the
Philippines.

If the testator is an alien and the will is executed in the Philippines: The formal validity of the will shall
be governed by the (a.) New Civil Code of the Philippines or (b.) the law of his own country.

If the testator is an alien and the will is executed in a foreign country: The formal validity of the will shall
be
governed either by (a.) the law of his country, (b.) The law of the place where the will is made, (c.) The law
of the place where he resides or (d.) by the NCC.

Q2: What law governs the intrinsic validity of wills?

Art. 16; NCC: Intestate and testamentary succession, 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”.

8. May Filipino citizens execute joint wills?

A: Filipino citizens are prohibited from executing joint wills. 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.

9. What is a codicil? What are the formalities required in the execution of a codicil?
A: Codicil: It is a supplement or addition to a will, made after the execution of the will and annexed to be
taken as a part thereof by which any disposition made in the original will is explained, added to or altered.
 10. If a person is a beneficiary under the will, is he competent to act as an instrumental witness?
A.: Yes, he is competent to act as an instrumental witness. However, the legacy or devise given to him
shall be void unless there are other competent witnesses to such will.

Q1: Who are qualified to act as instrumental witnesses to the execution of a will?
He must be of sound mind
Must be of 18 years of age or more
Must not be blind, deaf or blind
Must be able to read and write.

Q2: Who are disqualified to act as instrumental witnesses to the execution of a will?
Any person not domiciled in the Philippines
Those who have been convicted of falsification of a document, perjury or false testimony
Any person who is not of sound mind
Any person who is less than 18 years of age
Any person who is blind, deaf or dumb
Any person who cannot read or write