842005 Centralized Bar Operations San Beda College of Law 93

Memory Aid in Civil Law

SUCCESSION

SUCCESSION 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. (Art. 774)

Kinds:1. Testamentary or Testacy (by will);2. Legal or intestacy (by operation of law based on the decedents presumed will);3. Mixed (Partly Testamentary and Legal); and4. Partition inter vivos (to a certain degree).

Elements:1. DECEDENT (subjective element)2. SUCCESSORS (subjective element)a. Heirs - those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law1) Voluntary those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose.2) Compulsory or Forced those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, known as the legitime.3) Legal or Intestate those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will.b. Devisees or legatees - persons to whom gifts of real or personal property are respectively given by virtue of a will

NOTE: The distinctions between heirs and devisees/legatees are significant in these cases:1. Preterition (pretermission)2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-repudiation of the successional rights.

3. DEATH OF THE DECEDENT (casual element) Moment when rights to succeed are transmitted (Art 777) However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may still be alive.4. Inheritance (objective element);

NOTE: Whatever may be the time when actual transmission takes place, succession takes place in any event at the moment of the decedents death. (Lorenzo vs. Posadas 64 Phil 353)

SUCCESSIONINHERITANCE

Refers to the legal mode by which inheritance is transmitted to the persons entitled to itRefers to the universality or entirety of the property, rights and obligations of a person who died

Inheritance includes:1. PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATHGeneral rules on rights and obligations extinguished by his deatha) Rights which are purely personal are by their nature and purpose intransmissible for they are extinguished by death (e.g. those relating to civil personality, family rights, discharge of office).b) Rights which are patrimonial or relating to property are generally part of inheritance as they are not extinguished by death.c) Rights of obligations are by nature transmissible and may constitute part of inheritance both with respect to the rights of the creditor and as regards to the obligations of the debtor.

2. ALL WHICH HAVE ACCRUED THERETO SINCE THE OPENING OF SUCCESSION (Article 781 Civil Code)

I. Testamentary Succession

A. CONCEPT

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

NOTE: Thus, a document that does not purport to dispose of ones estate either by the institution of heirs or designation of devisees/legatees or, indirectly, by effecting a disinheritance, is not to be governed by the law on testamentary succession but by some other applicable laws.

Kinds of Wills:1. Notarial or ordinary2. Holographic

Characteristics of a Will:1. UNILATERAL2. STRICTLY PERSONAL ACT - The disposition of property is solely dependent upon the testator.

NOTE: The following acts MAY NOT be left to the discretion of a third person: (Article 785, 787 Civil Code)duration or efficacy of the designation of heirs, devisees or legatees;determination of the portions which they are to take, when referred to by name; and determination of whether or not the testamentary disposition is to be operative.

NOTE: However, the following acts MAY be entrusted to a third person: (Article 786 Civil Code)a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied.3. FREE AND VOLUNTARY ACT Any vice affecting the testamentary freedom can cause the disallowance of the will. 4. FORMAL AND SOLEMN ACT The formalities are essential for the validity of the will.5. ACT MORTIS CAUSA6. AMBULATORY AND REVOCABLE DURING THE TESTATORS LIFETIME7. INDIVIDUAL ACT Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria.8. DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS (ArtS. 788-792)The testators intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.

In case of doubt, that interpretation by which the disposition is to be operative shall be preferred. That construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law.

Kinds of Ambiguities: (Article 786)1. LATENT OR INTRINSIC AMBIGUITIES that which does not appear on the face of the will and is discovered only by extrinsic evidence.2. PATENT OR EXTRINSIC AMBIGUITIES that which appears on the face of the will itself

NOTES: There is no distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence to aid testamentary disposition is concerned. Extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator as to his intention. The validity of a will as to its form depends upon the observance of law in force at the time it is made. (Art. 795). If a law different from the law in force at the time of the execution of the will goes into effect before or after the death of the testator, such a law shall not affect the validity of the will, provided that such will was duly executed In accordance with the formalities prescribed by law in force at the time it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)Gen. Rule: Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of.Exception: When a contrary intention expressly appears in the will

NOTE: This rule applies only to legacies and devises and not to institution of heirs.

C. Testamentary Capacity refers to the ability as well as the power to make a will.- must be present at the time of the execution of the will.

Requisites:1. At least 18 years of age2. Of sound mind, i.e., the ability to know:a. the nature of the estate to be disposed of;b. the proper objects of his bounty; and c. the character of the testamentary act.

NOTE: The law presumes that the testator is of sound mind, UNLESS:a. he, one month or less, before making his will, was publicly known to be insane; orb. was under guardianship at the time of making his will. (Torres and Lopez de Bueno vs. Lopez 48 Phil 772)In both cases, the burden of proving sanity is cast upon proponents of the will.

Effect of Certain Infirmities:1. mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity;2. physical infirmity or disease is not inconsistent with testamentary capacity;3. persons suffering from idiocy (those congenitally deficient in intellect), imbecility (those who are mentally deficient as a result of disease), and senile dementia (peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood) do not possess the necessary mental capacity to make a will;4. an insane delusion which will render one incapable of making a will may be defined as a belief in things which do not exist, and which no rational mind would believe to exist;5. if the insane delusion touches to subject matter of the will, testamentary disposition is void.6. a deaf-mute and blind person can make a will (i.e. Art. 807-808). A blind man with a sound and disposing mind can make a holographic will.7. an intoxicated person or person under the influence of drugs may make a will as there is no complete loss of understanding. Exception: where the testator has used intoxicating liquor or drugs excessively to such an extent as to impair his mind, so that at the time the will is executed, he does not know the extent and value of his property, or the names of persons who are the natural objects of his bounty, the instrument thus executed will be denied probate for lack of testamentary capacity.

D. Formalities of Wills (Extrinsic validity)

Common Formalities1. Every will must be in writing; and 2. Executed in a language or dialect known to the testator.

Special FormalitiesI. NOTARIAL OR ORDINARY WILLa. SUBSCRIPTION made 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; Subscription refers to the manual act of testator and also of his instrumental witnesses of affixing their signature to the instrument.b. ATTESTATION AND SUBSCRIPTION - (evidenced by an attestation clause) by 3 or more credible witnesses in the presence of the testator and of one another; Attestation consists in the act of witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with requirements prescribed by law.

ATTESTATIONSUBSCRIPTION

1. an act of the senses1. an act of the hand

2. mental act2. mechanical act

3. purpose is to render available proof during probate of will3. purpose is identification

c. MARGINAL SIGNATURES affixed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof, except the last, on the left margin;

Exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and witnesses:: (1) in the last page, when the will consists of two or more pages;(2) when the will consists of only one page;(3) when the will consists of two pages, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses.

The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate (Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS Written correlatively in letters placed on the upper part of each page;

NOTE: This is not necessary when all of the dispositive parts of a will are written on one sheet only.

e. ACKNOWLEDGMENT Done before a notary public by the testator and the instrumental witnesses.

NOTE: The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. 805 and 806. (Cruz vs. Villasor 54 SCRA 31) MANNER OF SIGNING: The use of any signature, marks or design intended by the testator to authenticate renders the will sufficiently signed by the testator. A signature by mark will be sufficient even if at the time of placing it, the testator knew how to write and is able to do so. It is sufficiently signed by writing his initials, or his first name, or he may use even an assumed name. A complete signature is not essential to the validity of a will, provided the part of the name written was affixed to the instrument with intent to execute it as a will. attestation clause- memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law. Absence of this clause will render the will a nullity.

It must state the following ESSENTIAL FACTS:1. the number of pages used upon which the will is written;HOWEVER, even if number of pages is omitted in the AC BUT if there is an acknowledgment clause which states the number of pages or the will itself mentioned such number of pages, it may still be considered valid applying the Liberal Interpretation of the law. (Tabuada vs. Rosal)

2. 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; When the testator expressly caused another to sign the formers name, this fact must be recited in the attestation clause. Otherwise, the will is fatally defective. (Garcia vs. Lacuesta 90 Phil 489)

3. that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

TEST OF PRESENCE: Not whether they actually saw each other sign, but whether they might have 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. (Jaboneta vs. Gustilo)

In the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. The language used in the attestation clause likewise need not even be known to the attesting witnesses. Art. 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. (Caneda vs. CA 222 SCRA 781)

Effects of defects or imperfections in the Attestation Clause: If the defect of the attestation clause goes into the very essence of the clause itself or consists in the omission of one, some, or all of the essential facts, and such omission cannot be cured by an examination of the will itself, the defect is substantial in character, as a consequence of which the will is invalidated.

However, In the absence of bad faith, forgery, 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 Art. 805 (formal requirements). This is known as the Doctrine of Liberal Interpretation (Art. 809)

Purposes of requiring witness to attest and to subscribe to a will:1. identification of the instrument2. protection of the testator from fraud and deception 3. the ascertainment of the testamentary capacity of the testator.

NOTE: Certain points to consider (Tolentino)1. Mere knowledge by testator that another is signing, and acquiescing in it, there being no express direction, is NOT sufficient.2. Not required that the name of the person who writes the testators name should also appear on the will; enough that testators name is written.3. If the required numbers of attesting witness are competent, the fact that an additional witness, who was incompetent also attested to the will, cannot impair the validity.4. Immaterial in what order the acts are performed provided the signature or acknowledgment by the testator and the attestation of the witnesses be accomplished in one occasion, and as part of one transaction.5. The law refers to page and not to sheet or leaf or folio, so every page used in the will should be signed on the left margin.6. An attestation clause need be signed ONLY by the witnesses and not by the testator as it is a declaration made by the witnesses.7. date of will: a. ordinary will: not an essential part; b. holographic will: an essential part.8. Failure or error to state the place of execution will not invalidate the will.9. Signing of a will by the testator and witnesses and acknowledgment before a notary public, need not be a single act.10. Testamentary capacity must also exist at the time of acknowledgment.ADDITIONAL REQUIREMENTS FOR SPECIAL CASES1. Deaf or deaf-mute testator:a) personal reading of the will, if able to do so; OR b) if not possible, designation of 2 persons to read the will and communicate to him, in some practicable manner, the contents thereof. (Article 807)2. Blind testator: Double-reading requirement: a. first, by one of the subscribing witnesses, ANDb. second, by the notary public before whom the will is acknowledged. (Article 808) Art. 808 applies not only to blind testators but also to those who, for one reason or another are incapable of reading their wills (e.g. poor, defective or blurred vision).

In a case where the testator did not read the final draft of the will, but the lawyer who drafted the document, read the same aloud in the presence of the testator, 3 witnesses, and notary public, the Court held that the formal imperfections should be brushed aside when the spirit behind the law was served though the letter was not. (Alvarado vs. Gaviola 226 SCRA 347)

Witness to NOTARIAL Wills (ARTS. 820 & 821)Requirements:1. of sound mind;2. able to read and write;3. not blind, deaf or dumb;4. at least 18 years of age;5. domiciled in the Philippines;6. has not been convicted of falsification of a document, perjury, or false testimony

NOTE: A witness need not know the contents of the will, and need not be shown to have had a good standing in the community where he lives. Also, the acknowledging notary public cannot be one of the 3 minimum numbers of witnesses.Interested witness A witness to a will who is incapacitated from succeeding from the testator by reason of a devise/legacy or other testamentary disposition therein in his favor, or in favor of his spouse, parent, or child. However, his competence as a witness subsists.

2. HOLOGRAPHIC WILL (Article 810)a. entirely written by the hand of the testator;b. entirely dated by the hand of the testator; andc. entirely signed by the hand of the testator.

NOTE: The law exacts literal compliance with these requirements. HENCE, THE DOCTRINE OF LIBERAL INTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in a case that as a general rule, the date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date FEB./61 appearing on the will is a valid compliance with Art. 810, probate of the holographic will should be allowed under the principle of substantial compliance. (In the matter of Intestate Estate of Andres de Jesus and Bibiana Roxas de Jesus, 134 SCRA 245)

Rule in case of insertion, cancellation, erasure or alteration: Testator must authenticate the same by his FULL SIGNATURE. (Article 814)

NOTE: In the case of Kalaw vs. Relova (134 SCRA 241), the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid.

Effects of words written by another and inserted in the words written by the testator:a. If the insertion was made after the execution of the will, but without the consent of the testator, such insertion is considered as not written, because the validity of the will cannot be defeated by the malice or caprice of third person.b. If the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void.c. If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator.d. If the insertion made by a third person is made contemporaneous to the execution of the will, then the will is void because it is not written entirely by the testator.

Probate of Holographic Will1. If UNCONTESTED, requires that at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the will and signature are in the handwriting of the testator; if no witness, expert testimony may be resorted to.2. If CONTESTED, requires at least 3 of such credible witnesses, if none expert witness.

NOTE: Where the testator himself petitions for the probate of his holographic will and no contest is file, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant.

A photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court, as comparison can be made with the standard writings of the testator. (Rodelas vs. Aranza, 119 SCRA 16)

Governing law on formalities1. As to time: The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Its intrinsic validity, however, is judged at the time of the decedents death by the law of his nationality.

2. As to place: a. Filipino testator executing a will in the Philippines: Philippine lawb. Filipino testator executing a will outside of the Philippines: either1) The law of the country in which it is executed; or2) The law of the Philippines.c. Alien testator executing a will in the Philippines: either1) The law of the Philippines; or2) The law of the country of which he is a citizen or subject.d. Alien testator executing a will outside of the Philippines: either1) The law of the place where it is executed; or2) The law of the place in which he resides; or3) The law of his country; or4) The law of the Philippines.

Aspects of the will governed by National Law of the Decedent (Article 1039 and Article 16 Civil Code)a. Order of successionb. Amount of successional rightsc. Intrinsic validityd. Capacity to succeed

Joint will a single testamentary instrument which contains the wills of two or more persons, jointly executed by them, either for their reciprocal benefit or for the benefit of a third person--will of 2 or more persons is made in the same instrument and is jointly signed by them

Mutual wills wills executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other--separate wills of 2 persons, which are reciprocal in their provisions.

Reciprocal wills- wills in which the testators name each other as beneficiaries under similar testamentary plans

NOTE: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited.

Reasons:1. will is purely personal and unilateral act2. contrary to the revocable character of a will3. may expose the testator to undue influence, and may even induce one of the testators to kill the other.

NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the foreign country in which they may have been executed (Article 819 Civil Code).This prohibition is applicable only in joint wills executed by Filipinos in a foreign country; it does NOT APPLY to joint wills executed by aliens.

E. CODICIL AND INCORPORATION BY REFERENCE

CODICIL A supplement or addition to a will, made after the execution of a 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. (Article 825)NOTE: To be effective, it must be executed as in the case of a will. Its execution has the effect of republishing the will as modified.

INCORPORATION BY REFERENCE (ART 827) Contemplates only lists of properties, books of accounts, and inventories. Provisions which are in the nature of testamentary dispositions must be contained in the will itself.

Requisites for a valid incorporation by reference: (ART 827)1. The document or paper referred to in the will must be in existence at the time of the execution of the will;2. The will must clearly describe and identify the same, stating among other things the number of pages thereof;3. It must be identified by clear and satisfactory proof as the document or paper referred to therein;4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

F. Revocation of Wills and Testamentary Dispositions

REVOCATION An act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. Such right to revoke a will cannot be waived or restricted. LAWS WHICH GOVERN REVOCATION (ART 829)1. If the revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or in some other country, it is valid when it is in accordance with the laws of the Philippines2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines, it is valid when it is in accordance with the laws of the Philippines3. Revocation done outside the Philippines, by a testator who does not have his domicile in this country, is valid when it is done according to the: a. laws of the place where the will was made, or b. laws of the place in which the testator had his domicile at the time of revocation;

modes of revocation (Art 830)1. By implication of law:a. legal separation revokes testamentary provisions in favor of the offending spouse;b. preterition revokes the institution of heir;c. judicial action for recovery of debt revokes a legacy of credit/remission of debt; d. transformation, alienation, or loss of bequeathed property revokes a legacy of such property;e. act of unworthiness by an heir, devisee/legatee revokes testamentary provisions in his favor; f. if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law (Art. 44, Family Code); and g. void ab initio or annulled marriages revoke testamentary dispositions made by one spouse in favor of the other (Art. 50, Family Code).2. By some will, codicil, or other writing, executed as provided in case of wills, which may either be:a. Express when there is a revocatory clause expressly revoking the previous will or a part thereofb. Implied when the provisions thereof are partially or entirely inconsistent with those of the previous willNOTE: While express revocation may be effected by a subsequent will, or a codicil, or a nontestamentary writing executed as provided in case of wills, implied revocation may be effected only by either a subsequent will, or a codicil.

3. By burning, tearing, cancelling, or obliterating the will.Requisites:a. testamentary capacity at the time of performing the act of destruction;b. intent to revoke (animus revocandi);c. actual physical act of destruction;d. completion of the subjective phase; and e. performed by the testator himself or by some other person in his presence and express direction (THE LIST IS EXCLUSIVE.)

NOTE: The act of revocation is a personal act of the testator. He cannot delegate to an agent the authority to do the act for him. Another person, however, may be selected by him as an instrument and directed to do the revocatory acts in his presence. A destruction not accomplished in the testators presence is an ineffective revocation of the will.

Doctrine of Presumed Revocation Whenever it is established that the testator had in his possession or had ready access to the will, but upon his death it cannot be found or located, the presumption arises that it must have been revoked by him by an overt act. Where it is shown that the will was in custody of the testator after its execution, and subsequently, it was found among the testators effects after his death in such a state of mutilation, cancellation or obliteration as represents a sufficient act of revocation, it will be presumed in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revoking the will.

Doctrine of Dependent Relative Revocation (ART 832) A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator revokes a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will.

Where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force (Vda. De Molo vs. Molo 90 Phil 37).

Revocation by mistake A revocation of a will based on a false cause or an illegal cause is null and void. Thus, where a testator by a codicil or later will, expressly grounding such revocation on the assumption of fact which turns out to be false, as where it is stated that the legatees/devisees named therein are dead, when in fact, they are living, the revocation does not take effect. G. Republication and Revival of Wills

Republication The act of the testator whereby he reproduces in a subsequent will (express) the dispositions contained in a previous will which is void as to its form, or he executes a codicil (constructive) to his will. Its purpose is to cure the will of its formal defects.

NOTES: To republish a will void as to its form, all the dispositions must be reproduced or copied in the new or subsequent will; To republish a will valid as to its form but already revoked the execution of a codicil which makes reference to the revoked will is sufficient.

Effects of Republication by virtue of a Codicil:1. Codicil revives the previous will 2. The old will is republished as of the date of the codicil makes it speak, as it were, from the new and later date.3. A will republished by a codicil is governed by a statute enacted to the execution of the will, but which was operative when the codicil was executed.

REPUBLICATIONREVIVAL

1. Takes place by an act of the testator1. Takes place by operation of law.

2. Corrects extrinsic and intrinsic defects.2. Restores a revoked will

Revival The restoration to validity of a will previously revoked by operation of law (implied revocation). Principle of Instanter The express revocation of the first will renders it void because the revocatory clause of the second will, not being testamentary in character, operates to revoke the previous will instantly upon the execution of the will containing it.NOTE: In implied revocation, the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator. H. Allowance and Disallowance of Wills

PROBATE A special proceeding mandatorily required for the purpose of establishing the validity of a will. The statute of limitations is not applicable to probate of wills.

Questions determinable by the probate court: (ICE)1. identity of the will;2. testamentary capacity of the testator at the time of the execution of the will; and3. due execution of the will.

GENERAL RULE: In probate proceeding, the courts area of inquiry is limited to an examination of, and resolution on the extrinsic validity if the will, the due execution thereof, the testatrixs testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The probate court cannot inquire into the intrinsic validity of testamentary provisions.

EXCEPTION: Practical considerations, e.g. when the will is intrinsically void on its face.

In Nuguid vs Nuguid (17 SCRA 449), the Supreme Court held that, if the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety.

In Nepomuceno vs CA (139 SCRA 207), the Court ruled that the court can inquire as to the intrinsic validity of the will because there was an express statement that the beneficiary was a mistress.NOTES: Criminal action will not lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. (Mercado vs. Santos 66 Phil. 215)

The fact that the will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation of a codicil, provided it complies with all the formalities for executing a will. It is not necessary that the will and codicil be probated together as the codicil may be concealed by an interested party. They may be probated one after the other. (Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void because it has not been executed in accordance with the formalities required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy in compliance with a clause in the defective will, the payment is effective and irrevocable (Article 1430, NCC; Natural Obligations).

Grounds for Disallowance of a Will (ART 839)1. Formalities required by law have not been complied with;2. Testator was insane, or otherwise incapable of making a will, at the time of its execution;3. Will was executed through force or under duress, or the influence of fear, or threats;4. Will was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;5. Signature of the testator was procured by fraud;6. 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. NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appeal to emotions, and entreaties which, without fraud or deceit or actual coercion, compulsion or restraint do not constitute undue influence sufficient to invalidate a will. (Barreto vs. Reyes 98 Phil 996) Burden is on the person challenging the will to show that such influence was exerted at the time of its execution. To make a case of UNDUE INFLUENCE, the free agency of the testator must be shown to have been destroyed; but to establish a ground of contest based on FRAUD, free agency of the testator need not be shown to have been destroyed. Allegations of fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will (Icasiano vs. Icasiano 11 SCRA 422)

REVOCATIONDISALLOWANCE

1. voluntary act of the testator.1. given by judicial decree.

2. with or without cause.2. must always be for a legal cause.

3. may be partial or total.3. always total except: when the ground of fraud or influence for example affects only certain portions of the will.

I. Institution of Heirs (ArtS. 840-856)

INSTITUTION An act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (Art 840) The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic or extrinsic evidence.

Presumptions1. Presumption of Equality Heirs instituted without designation of shares shall inherit in equal parts. This is limited only to the case where all of the heirs are of the same class or juridical condition, and where there are compulsory heirs among the heirs instituted, it should be applied only to the disposable free portion.2. Presumption of Individuality When the testator institutes some heirs individually and others collectively, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. 3. Presumption of Simultaneity when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively.

Institution based on a FALSE CAUSE (Article 850)GENERAL RULE: The statement of a false cause for the institution of an heir shall be considered as not written. Reason: Generosity of the testator is the real cause of the testamentary disposition.EXCEPTION: If it appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause. Example: Where the person instituted is a total stranger to the testator, it is obvious that the real cause of the testamentary disposition is not the generosity of the testator but the fact itself which turned out to be false.

REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS:1. cause of institution of heirs must be stated in will;2. cause must be shown to be false;3. it must appear from the face of the will that the testator would not have made the institution had he known the falsity of the cause.

Where the one-sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. Intestate succession ensues. (Nuguid vs. Nuguid, et al. 17 SCRA 449)

Preterition (Art. 854) Omission in the testators will of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator.

Requisites:1. The heir omitted must be a compulsory heir in the direct line;2. The omission must be complete and total in character; and3. The compulsory heir omitted must survive the testator.

There is no total omission when:a. A devise/legacy has been given to the heir by the testatorb. A donation inter vivos has been previously given to the heir by the testator; orc. Anything is left from the inheritance which the heir may get by way of intestacy.

NOTE: In the above cases, the remedy of the heir is completion of legitime under Art. 906, in case the value of the property received is less than the value of the legitime.

Effects of Preterition:1. It annuls the institution of heir;2. The devises and legacies are valid insofar as they are not inofficious; and3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation.NOTE: In case of omission without preterition, the rule in Art. 855 should be followed. The suggested alternate phrasing of Dr. Tolentino to the said article is: The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will.

PRETERITIONDISINHERITANCE

1. deprivation of a compulsory heir of his legitime is tacit1. deprivation of a compulsory heir of his legitime is express.

2. may be voluntary but the law presumes that it is involuntary2. always voluntary.

3. law presumes that there has been merely an oversight or mistake on the part of the testator.3. done with a legal cause.

4. omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies/ devises.4. if disinheritance is not lawful, compulsory heir is merely restored to his legitime.

Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending lineher parents, and her holographic will does not explicitly disinherit them but simply omits them altogether, the case is one of preterition of parents, not a case of ineffective disinheritance. (Nuguid vs. Nuguid 17 SCRA 449)

NOTE: Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line. However, since Article 842 protects the legitime of the SS, the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS. (Tolentino)

EFFECT OF PREDECEASE--an heir who dies before the testator shall transmit no right to his own heirs (rule is absolute with respect to a voluntary heir)--what is transmitted to the representatives of compulsory heir is his right to the legitime and not to the free portion effect of incapacity--A voluntary heir who is incapacitated to succeed from testator shall transmit no right to his own heirs.--compulsory heir may be represented, but only with respect to his legitime

EFFECT OF REPUDIATION--whether voluntary or compulsory, the heir who repudiates his inheritance cannot transmit any right to his own heirs.

J. Substitution of Heirs (ArtS 857-870)

SUBSTITUTION The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). It may be considered as a subsidiary and conditional institution.

Kinds:1. Simple or Common (that which takes place when the testator designates one or more persons to substitute the heirs/s instituted in case such heir/s should die before him, or should not wish, or should be incapacitated to accept the inheritance)2. Brief or Compendious: brief (there are two or more persons designated by the testator to substitute for only one heir), compendious (one heir is designated to take the place of two or more heirs)

Instances when substitution takes place:a. instituted heir predeceases the testator;b. incapacity of the instituted heir to succeed from the testator; andc. repudiation of the inheritance.

Effect of substitution:General rule: once the substitution has taken place, the substitute shall not only take over the share that would have passed to the instituted heir, but he shall be subject to the same charges and conditions imposed upon such instituted heir.Exceptions: (1) When the testator has expressly to the contrary; (2) When the charges or conditions are personally applicable only to the heir instituted.

3. Fideicommissary Requisites:a. First heir (fiduciary) called to the succession.b. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir.c. Second heir (fideicommissary) to whom the property is transmitted by the first heir. Without the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir, there is no fideicommissary substitution (Rabadilla vs. CA 334 SCRA 522)

NOTE: Pending transmission of property, the fiduciary is entitled to all the rights of a usufructuary, although the fideicommissary is entitled to all the rights of a naked owner.

Limitations:a. Substitution must not go beyond one degree from the heir originally instituted.b. Degree means degree of relationship. c. Fiduciary and fideicommissary must be living at the time of the death of the testator.d. Substitution must not burden the legitime of compulsory heirs.e. Substitution must be made expressly. A fideicommissary substitution is void if the first heir is not related in the 1st degree to the second heir (Ramirez vs. Vda. De Ramirez 111 SCRA 704)

K. Conditional, modal Testamentary Dispositions, and Testamentary Dispositions with a Term (Art 871-885)

GENERAL RULE: The institution of an heir may be made 1) conditionally, 2) for a term, or 3) for a certain purpose or cause (modal). Conditions, terms, and modes however, are not presumed; they must be clearly expressed in the will. The condition must fairly appear from the language of the will. Otherwise, it is not binding.

LIMITATIONS:1. The testator cannot impose any charge, burden, encumbrance, condition, or substitution whatsoever upon the legitime of compulsory heirs.2. Impossible conditions and those contrary to law or good customs are presumed to have been imposed erroneously or through oversight, thus, are considered as not imposed.3. An absolute condition not to contract a first marriage is always void and will be considered as not written.4. An absolute condition not to contract a subsequent marriage is generally void, unless imposed upon a widow or widower by the deceased spouse or by the latters ascendants or descendants. Even so, however, the legitime of the surviving spouse cannot be impaired.

An absolute condition not to contract marriage when validly imposed is resolutory in character. Consequently, if the testator institutes his wife as heir subject to the condition that she will never marry again, she immediately acquires a right to the inheritance upon the death of testator, but if she violates the condition by contracting a 2nd marriage, she loses her right to said inheritance.

NOTE: However, the following relative conditions regarding marriage have been considered as valid and binding:a. generic condition to contract marriage;b. specific condition to contract marriage with a determinate person; andc. specific condition not to contract marriage with a determinate person.

5. Any disposition made upon the condition that the heir shall make some provisions in his will in favor of the testator or of any other person shall be void (disposicion captatoria).6. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by the law on succession.

Kinds of Conditions1. Potestative Condition depends exclusively upon the will of the heir, devisee, or legatee, and must be performed by him personally.2. Causal Condition depends upon the will of the heir, devisee, or legatee, but upon the will of a third person.3. Mixed depends jointly upon the will of the heir, devisee, or legatee and upon chance and/or will of a third person.

Fulfillment of Conditions: 1. Potestative Conditions must be fulfilled after the death of the testator (except when it has already been fulfilled and is of such nature that it cannot be repeated); 2. Causal or mixed conditions may be fulfilled either before or after such death, unless the testator has provided otherwise.

Modal INSTITUTION (INSTITUCION SUB MODO) Attachment by the testator to an institution of heir, or to a devise or legacy, of a statement of the:a. object of the institution;b. application of the property left by testator; orc. charge imposed by him.

NOTES: When in doubt as to whether there is a condition or merely a mode, consider the same as mode. When in doubt as to whether there is a mode or merely a suggestion, consider same only as a suggestion. The condition suspends but does not obligate; the mode obligates but does not suspend (for he who inherits with a mode is already an heir; one who inherits conditionally is not yet an heir)

DOCTRINE of CONSTRUCTIVE FULFILLMENT: When without the fault of the fault of the heir, an institucion sub modo cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

NOTE: If the condition is casual, the doctrine is not applicable since the fulfillment of the event which constitutes the condition is independent of the will of the heir, devisee/legatee. If the condition is potestative or mixed, the doctrine is applicable.

SUCCESSION

CHAPTER 1: GENERAL PROVISIONS

SUCCESION - 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 (Art. 774)

ELEMENTS OF SUCCESSION1. Decedent2. Successorsa. Heirs those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation on lawb. Devisees or Legatees persons to whom gifts of real or personal property are respectively given by virtue of a will.3. Death of the Person However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may be alive.4. Inheritance is the subject matter of Succession it includes: Property and transmissible rights and obligations Existing at the time of his death AND those which have accrued thereto since the opening of succession.

RIGHTS EXTINGUISHED BY DEATH1. Support2. Usufruct3. Those arising from personal consideration4. Personal easements5. 6. AgencyPartnership rightsQuickTime and a

KINDS OF SUCCESSION1. Testamentary that which results from the designation of an heir, made in a will executed in the form prescribed by law2. Legal or Intestate that which takes place by operation of law in the absence of a valid will3. Mixed that which is effected partly by will and partly by operation of law

KINDS OF HEIRS1. Compulsory those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance2. Voluntary or Testamentary those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose3. Legal or Intestate those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will

CHAPTER 2: GENERAL PROVISIONS ON WILLS ELEMENTS OF A WILL1. It is an act;2. whereby a person is permitted;3. with the formalities prescribed by law;4. to control to a certain degree;5. the disposition of his estate;6. to take effect after his death.

KINDS OF WILLS:1. Notarial an ordinary or attested will2. Holographic a handwritten will

COMMON REQUISITES BETWEEN THE TWO WILLS:1. must be in writing and2. in a language or dialect known to the testator

SuccessionInheritanceRefers to the legalReferstothemodebywhichuniversality or entiretyinheritanceisof the property, rightstransmittedtotheand obligations of apersons entitled to it.person who died.7. Life Annuity

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CHARACTERISTICS OF A WILL:1. Unilateral2. Strictly Personal acta. Acts which may not be left to the discretion of third persons (Articles 785 AND 787):i. Duration or efficacy of the designation of heirs, devisees or legatees;

Adviser: Dean Cynthia del Castillo Head : Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;Subject Head : Polaris Rivas;

ii. Determination of the portions which theyare to take, when referred to by name; andiii. Determination of whether or not the testamentary disposition is to be operativeb. Acts which may be entrusted to third persons (Article 787);i. Distribution of specific property or sums of money that he may leave in general to specified classes or causes; andii. Designation of the persons, institutions or establishments to which such property or sums are to be given or applied.3. Free and voluntary act4. Formal and solemn act5. Act mortis causa6. Ambulatory and revocable during the testators lifetime7. Individual act

INTERPRETATION OF WILLS

1. Animus Testandi - The testators intent (animus testandi), as well as giving effect to such intent is primordial. EXCEPT: when the intention of the testator is contrary to law, morals or public policy.

2. In case of doubt, the interpretation by which the disposition is to be operative or will sustain and uphold the will in all its parts shall be adopted, provided that it can be done consistently with the established rules of law.

3. Ambiguities in Wills Intrinsic or extrinsic evidence may be used to ascertain the testatorial intent of the testator. EXCEPT: the oral declarations of the testator as to his intentions must be excluded because such testimony would be hearsay.

4. After Acquired Property - Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of. EXCEPT: When a contrary intention expressly appears on the will.3. Of sound mind, at the time of its execution; Atestator is considered of sound mind if he knows at the time of making of the will the following:a. Nature of the estate to be disposed ofb. Proper objects of his bountyc. Character of the testamentary act

Supervening capacity or incapacity does not affect the will because the validity of a will is determined at the time of the execution of the will.

LEGALPRESUMPTIONINFAVOROF SOUNDNESS OF MIND

GENERAL RULE: The law presumes that the testator is of sound mind EXCEPT:a. When the testator, one month or less, before making his will was publicly known to be insane; orb. Was under guardianship at the time of the making of his will. (Torres and Lopez de Bueno vs. Lopez, 48 Phil. 772)

CHAPTER 3: FORMS OF WILL

1. NOTARIAL WILL a valid notarial will:a. Must be in writing and in a language or dialect known to the testator

b. Subscribed at the end by the testator himself or by the testators name written by some other person in his presence, and by his express direction

c. Attested & subscribed by three or more credible witnesses in the presence of the testator and of one another Mandatory Part: The signing on every page in the witnesses presence NOTE: Test of presence is not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so

Civil Law Summer ReviewerATENEO CENTRAL BAR OPERATIONS 2007

Page 84 of 297NOTE: This rule apQpuiclkieTimseoanndlya to legacies and

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TESTAMENTARY CAPACITY

1. All persons who are not expressly prohibited by law2. 18 years old and above

considering their mental and physicalcondition and position with relation to each other at the moment of inscription of each signature. Directory Part: The place of the signature, i.e. the left margin; the signature can be affixed anywhere on the page.

d. Each and every page, except the last, must besigned by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. Signatures on the left margin on each and every page NOT REQUIRED:i. In the last page, when the will consists of two or more pages;ii. When the will consists of only one page;iii. When the will consists of two pages, the first consists of all the testamentary disposition and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses.

e. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. Mandatory Part: Pagination by means of a conventional system. Directory Part: The pagination in letters on the upper part of each page

f. It must contain an attestation clause, stating the following:a. The number of pages used upon which the will is writtenb. The fact that the testator signed the will and every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnessesc. All the instrumental witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another

g. It must be acknowledged before a notary public by the testator and the witnesses

QuickTime and aTIFF (Uncompressed) decompressor are needed to see this picture.ATTESTATION v. SUBSCRIPTION

Attestation An act of witnessing execution of will by testator in order to see and take note mentally those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact.

The attestation clause need not be written in a language or dialect known to the testator nor to the witnesses since it does not form part of the testamentary disposition The attestation clause need only be signedby the witnesses and not by the testator as it is a declaration made by the witnesses.

Icasiano vs. Icasiano, II SCRA 422 the inadvertent failure of one witness to affix his signature to one page of the original will due to the simultaneous lifting of two pages in the course of signing is not per se sufficient to justify denial of probate when the duplicate will shows

Cruz v. Villasor, 54 SCRA 31- the notary public cannot be counted as one of the attesting witnesses

Subscription - The manual act of instrumental witnesses in affixing their signature to the instrument.

ATTESTATIONSUBSCRIPTION

1. act of the senses1. act of the hand

2. mental act2. mechanical act

3. Purpose is to render available proof during the probate that such will had been executed in accordance with the formalities prescribed by law3. Purpose is for identification

4. Found after the attestation clause at the end or last page of the will4. Found at the left side margin of every page of the will

ADDITIONAL REQUISITES FOR VALIDITY

a. If the Testator be Deaf or Deaf-Mute:i. Testator must personally read the will, if able to do so;ii. Otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, its contents (Art 807)b. If the Testator be Blind: The will shall be read to the testator twice -i. Oncebyoneofthesubscribing witnesses

ii. Once by the notary public before whomthe will is acknowledged (Art 808) NOTE: Articles 807 and 808 are mandatory, failure to comply with either would result in nullity and denial of probate.

2. HOLOGRAPHIC WILL a holographic will is valid if it is:

a. In writing and in a language or dialect known to the testatorb. Entirely written, dated, and signed by the hand of the testator himselfc. Dispositions of the testator written below his signature must be dated and signed by him in order to validate the testamentary dispositions. (Art 812) EXCEPT: In case of dispositions appearing in a holographic will which are signed without being dated, where the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions A holographic will is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Art 810)

PROBATE OF HOLOGRAPHIC WILL

a. There must be at least one witness. EXCEPTION: If the will is contested, at least three of such witnesses shall be required (merely directory). In the absence of such competent witness and if the court deems it necessary, expert testimony may be resorted to.

b. who knows the handwriting and signature of the testator

c. must explicitly declare that the will and the signature are in the handwriting of the testator. (Art 811)QuickTime and a

INSERTION,CANCELLATION,ERASUREOR ALTERATION IN A HOLOGRAPHIC WILL

a. If made after the execution of the will, but without the consent of the testator, such insertion is considered as not written because the validity of the will cannot be defeated by the malice or caprice of a third person

b. If the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void.

c. If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator

d. If the insertion made by a third person is made contemporaneous to the execution of the will, then the will is void because it is not written entirely by the testator

WHO MAY BE A WITNESS TO A WILL Anyperson may be a witness provided he is:

a. Of sound mindb. Of the age of 18 years or morec. Not blind, deaf or dumbd. Able to read and writee. Domiciled in the Philippinesf. Have not been convicted of falsification of a document, perjury or false testimony

CHAPTER 4: LAWS GOVERNING VALIDITY OF A WILL

1. FORMAL VALIDITY

NOTE: TThIFiFs(Unacormtpirceslesed) daecpompplrieesssor only to post

Gan v, Yap, 104 Phil 509 in the probate of a holographic will, the document itself must be produced; a lost holographic will cannot be probated. Exception: When copy of the will is producedmortem proabreaneteedsed toasneedthis npicotutre. to ante mortem probates since in such cases the testator himself files the petition and will identify the document himself.a. If the testator is a Filipino and the will is executed in the Philippines then its formal validity is governed by the CC of the Philippines

b. If the testator is a Filipino and the will is executed in a foreign country, then its formal validity is governed either:

i. By the law of the place where the willwas madeii. By the CC of the Philippines

c. If the testator is a foreigner and the will is executed in the Philippines, then its formal validity is governed either:i. By the CC of the Philippinesii. By the law of his own country

d. If the testator is a foreigner and the will is executed in a foreign country, then its formal validity is governed either:i. By the law of the place where the will was madeii. By the law of his own countryiii. By the law of the country where he residesiv. By the CC of the Philippines

2. SUBSTANTIVE VALIDITY

ASPECTSOFTHEWILLGOVERNEDBY NATIONAL LAW OF THE DECEDENT:

a. Order of successionb. Capacity to succeedc. Amount of successional rightsd. Intrinsic validity (Art 16)

VALIDITY OF 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. (669) NOTE: Joint wills 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.

CHAPTER 5: AMENDMENTMENT, REVOCATIONAND REPUBLICQuAickTTimIOeNandOa F WILLSTIFF (Uncompressed) decompressor are needed to see this picture.AMENDMENT OF WILLS

1. Notarial only through a codicil

2. Holographic in three waysa. Dispositions may be added below the signature, PROVIDED that said dispositions

are also dated and signed, and everything iswritten by the hand of the testator himselfb. Certain dispositions or additional matter may be suppressed or inserted PROVIDED that said cancellation is signed by the testator and written by the hand of the testator himselfc. Through a codicil which may either be notarial or holographic

ELEMENTS OF A CODICIL

1. It is a supplementary or addition to a will2. made after the execution of the will3. and annexed to be taken as a part thereof4. by which any disposition in the original will may be explained, added to or altered

REQUISITESFORINCORPORATIONBY REFERENCE

1. the document or paper referred to in the will must be in existence at the time of the execution of the will2. the will must clearly describe and identify the same, stating among other things the number of pages thereof3. it must be identified by clear and satisfactory proof as the document or paper referred to therein4. it must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories

REVOCATION OF WILLS

1. By operation of law instances of revocation by operation of law:a. decree of legal separationb. preteritionc. legacy or credit against third person or remission of debt was provided in will and subsequently, testator brings action against debtord. substantial transformation of specific thing bequeathede. when heir, devisee or legatee commits any of the acts of unworthiness

2. By the execution of a will, codicil or other writing executed as provided in case of willsa. EXPRESS When there is a revocatory clause expressly revoking the previous will or a part thereof

b. IMPLIED When the provisions thereof arepartially or entirely inconsistent with those of the previous wills

3. By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. REQUISITES:a. Testamentarycapacityatthetimeof performing the act of destruction;b. Intent to revoke (animus revocandi);c. Actual physical act of destruction;d. Completion of the subjective phase; ANDe. Performed by the testator himself or by some other person in his presence and express direction

LAWS WHICH GOVERN REVOCATION1. If the revocation takes place in the Philippines whether the testator is domiciled in the Philippines or not,a. Laws of the Philippines

2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines,a. Laws of the Philippines

3. Revocation done outside the Philippines by a testator who is not domiciled in this country,a. Laws of the place where the will was made; orb. QuickTime and aTIFF (Uncompressed) decompressor are needed to see this picture.Laws of the place in which the testator had his domicile at the time of the revocation.

Art. 832 A revocation made in a subsequentwill shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.EXCEPTION: Molo v. Molo, (90 Phil 37), When the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted in thesubsequentrevocation)will(dependantrelativeREVOCATION BASED ON A FALSE OR ILLEGAL CAUSE

Revocation based on a false or illegal cause is null and void. REQUISITES:a. The cause must be concrete, factual and notpurely subjectiveb. It must be falsec. The testator must not know of its falsityd. It must appear from the will that the testator is revoking because of the cause which is false.

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil.

FACTS DEMONSTRATING ART 837 In 1985, X executed Will 1 In 1987, X executed Will 2, expressly revoking Will 1 In 1990, X executed Will 3, revoking Will 1

CONCLUSION ON THE FACTS The Revocation of Will 2 by Will 3 does not revive Will 1 This demonstrates the theory of instant revocation because the revocatory effect of the second will is immediate upon the first will NOTE: This article only applies where the revocation of the first will by the second will is express.

REPUBLICATION AND REVIVAL OF WILLS

If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent will and reproduce it

The testator need only execute a subsequent will or codicil referring to the previous will if the testator wishes to republish a will that is either:a. Void for reason other than a formal defectb. REPUBLICATIONREVIVALTakes place by an act of the testatorTakesplace operation of lawbyCorrectsextrinsic extrinsic defectsandRestores a revoked willPreviously revoked

CHAPTER 6: ALLOWANCE AND DISALLOWANCEOF WILLS

atthetimeofaffixinghissignaturethereto.(Art 839)

1. PROBATE OF A WILLa. A special proceeding required for the purpose of establishing the validity of the will.b. Probate of a will is mandatoryc. The probate court can only inquire into the extrinsic validity of testamentary provisions, which include the following:i. That the testator was of sound and disposing mindii. That his consent was not vitiatediii. That the will was signed by the required number of witnessiv. That the will is genuine

EXCEPTION: Nuguid v. Nuguid, 17 SCRA 449, the probate court may pass upon the intrinsic validity of the will when its probate might become an idle ceremony if on the wills face it appears to be intrinsically void.

KINDS OF PROBATE1. Post-Mortem after the testators death2. Ante-Mortem during his lifetime

FINAL DECREE OF PROBATE Once a decree of probate becomes final in accordance with the rules of procedure it becomes Res Judicata It is conclusive as to the due execution of the will (extrinsic validity only)

2. DISALLOWANCE OF WILL - grounds for disallowance of a will:

a. If the formalities required by law have not been complied with;b. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;c. TIFF (Uncompressed) decompressorIf it was executQeuidckTimtheroanudga h force or under duress, or tharee nienedfelud teo nsece ethisopifctufree.ar, or threats;d. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;e. If the signature of the testator was procured by fraud;f. If the testator acted by mistake or did not intend that the instrument should be his will

REVOCATIONDISALLOWANCEVoluntary testatoractoftheGiven by judicial decreeWith or without causeAlways for a legal causeMay be partial or totalAlways total EXCEPT when the ground of fraud or influence for example affects only certain portions of the willCHAPTER 7: INSTITUTION OF HEIRS INSTITUTION OF HEIR1. It is an act by virtue of which a testator designates in his will2. the person or persons who are to succeed him in his property and transmissible3. rights and obligations

REQUISITES FOR A VALID INSTITUTION OF HEIR1. Designation in will of person/s to succeeda. Directory - designation of name and surnameb. Mandatory identity of the heir must be established, otherwise void disposition, unless his identity becomes certain.NOTE: If there is ambiguity in the designation, the designation must be resolved by discerning the testators intent. If the ambiguity cannot be resolved, intestacy to that portion results.2. Will specifically assigns to such person an inchoate share in the estate.3. The person so named has capacity to succeed4. The will is formally valid5. No vice of consent is present6. No preterition results from the effect of such will

THREE PRINCIPLES IN THE INSTITUTION OF HEIRS1. Equality heirs who are instituted without a designation of shares inherit in equal parts2. Individuality heirs collectively instituted are deemed individually named unless a contrary intent is proven3. Simultaneity when several heirs are instituted, they are instituted simultaneously and not successively

RULES ON A PERSONS RIGHT TO DISPOSE OF HIS ESTATE

1. If one has no compulsory heirs:a. He can give his estate to any person qualified to inherit under himb. However,hemustrespectrestrictions imposed by special laws2. If one has compulsory heirs:a. He can give only the disposable portion to strangersb. Legitimes of compulsory heirs must be respected

REQUISITESFORTHEANNULMENTOF INSTITUTION OF HEIRS:1. Cause of institution of the heirs must be stated in will2. Cause must be shown to be false3. It appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause.

RULES ON INSTITUTION OF ALIQUOT SHARE LESS THAN OR IN EXCESS OF THE WHOLE ESTATE:

1. Intestacy Results ifa. the heir institutes an aliquot portion of the estateb. to only one heir If the heir institutes several heirs to an aliquot part of the2. Each heirs share shall be proportionally increased:a. There are more than one instituted heirb. The testator intended the heirs to inherit the whole estatec. The aliquot parts of each share do not cover the whole inheritance3. Eachheirsshareshallbeproportionally decreased:a. There are more than one instituted heirb. The testator intended the heirs to inherit the whole estatec. The aliquot parts of each share exceed the whole inheritance

PRETERITION

1. There must be an omission of one, some or all of

the heir/s in the willQuickTime and aTIFF (Uncompressed) decompressor2. The omission mauresnetedbedeto tsheeathtis opicfturae. COMPULSORY HEIR3. Compulsory heir omitted must be of the DIRECT LINE4. The omitted compulsory heir must be LIVING at the time of testators death or must at least have been CONCEIVED before the testators death5. The omission must be complete and total in character. : There is no omission ifa. A devise or legacy has been given to the heirb. A donation inter vivos has been previously given to the heirc. Anything is left from the inheritance which the heir may get by way of intestacy

EFFECTS OF PRETERITION:1. The institution of heir is annulled2. Devises and legacies shall remain valid as long as they are not inofficious3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation

DISTINGUISHPRETERITIONFROM DISINHERITANCEPRETERITIONDISINHERITANCE

Deprivation of a compulsory heir of his legitime is tacitDeprivation of the compulsory of his legitime is express

May be voluntary but the law presumes that it is involuntaryAlways voluntary

Law presumes that there has been merely an oversight or mistake on the part of the testatorDone with a legal cause

Omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies or devisesIf disinheritance is unlawful, compulsory heir is merely restored to his legitime

CHAPTER 8: SUBSTITUTION OF HEIRS CLASSES OF SUBSTITUTION:1. Vulgar or Simple the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should:a. die before him (PREDECEASE)b. should not wish, (RENOUNCE) orc. shouldbeincapacitatedtoaccept the inheritance (INCAPACITATED)2. Brief or Compendious two or more persons may be substituted for one; and one person for two or more heirs3. Reciprocal if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute,

Page 92 of 297they shall have the same share in the substitutionas in the institution4. Fideicommissary Substitution - if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir

REQUISITESFORAFIDEICOMMISSARY SUBSTITUTION:1. A fiduciary or first heir instituted entrusted with the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance2. Such substitution must not go beyond one degree from the heir originally instituted3. The fiduciary or first heir and the second heir are living at the time of the death of the testator4. The fideicommissary substitution must be expressly made5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime

NOTE: Pending the transmission of the property, the fiduciary is entitled to all the rights of a usufructuary although the fideicommissary is entitled to all the rights of a naked owner.

CHAPTER 9: CONDITIONAL TESTAMENTARY DISPOSITIONS AND DISPOSITIONS WITH A TERM

TESTAMENTARY DISPOSITIONS1. Condition future or uncertain event, or a past event unknown to the parties, upon which the performance of an obligation depends2. Term the day or time when an obligation either becomes demandable or terminates3. Modal Institution the statement of the institution; application of the property left by the testator or the charge imposed on him4. Disposicion Captatoria condition that the heir shall make some provision in his will of the testator or of any other person (prohibited8. Suspensive term one that merely suspendsthe demandability of a right. It is sure to happen

9. Caucion Muciana bond or security that should be given in favor of those who would get the property if the condition not be complied with

INTERPRETATION When in doubt whether there is a condition or merely a mode, consider the same as mode

When in doubt as to whether there is a mode or merely a suggestion, consider same only as a suggestion

The condition suspends but does not obligate, the mode obligates but does not suspends (for he who inherits with a mode is already an heir; one who inherits conditionally is not yet an heir.)

RULES ON POTESTATIVE, CASUAL AND MIXED CONDITIONS

1. POTESTATIVE

Positive Potestative Condition: General Rule must be fulfilled as soon as the heir learns of the testators death EXCEPTIONa. the condition was already complied with at the time the heir learns of the testators deathb. the condition is of such nature that it cannot be fulfilled againNegative Potestative Condition: Heir must give security to guarantee the return of the value of property, fruits, and interests, in cases of contravention

2. CASUAL OR MIXED

Positive GENERAL RULE may be fulfilled at any other time (before testators death), unless testator provides otherwise. IfALREADYFULFILLEDatthetimeof execution of the will

because it will make QthuicekTmimeakainnd ga

of the will aa. If testator unaware of fact of fulfillment-

TIFF (Uncompressed) decompressorcontractual act) are needed to see this picture.5. Causal Condition condition us casual if it depends upon chance and/or upon the will of a third person6. Mixed Condition - It is mixed if it depends both partly upon the will of the heir himself and upon chance and/or the will of a third person7. Potestative Condition one the fulfillment of which depends purely on heir

deemed fulfilledb. If testator aware thereof i. If it can no longer be fulfilled again deemed fulfilledii. If it can be fulfilled again must be fulfilled againConstructive Compliancea. if casual not applicable

b. if mixed i. If dependent partly on chance not applicableii. If dependent partly on will of third party 1. if 3rd party interested applicable2. if 3rd party not interested not applicable

EFFECTS OF SUSPENSIVE CONDITION OR TERM

The estate shall be placed under administration until1. condition is fulfilled2. until it becomes certain condition will never be fulfilled3. until arrival of the term

CONDITIONS PROHIBITING MARRIAGE

1. If a first marriage is prohibited condition considered always as not imposed2. If a subsequent marriage is prohibited as imposed by the deceased spouse or by his/her ascendants or descendants - valid3. if a subsequent marriage is prohibited and imposed by anyone else- considered not written

2005 Centralized Bar Operations Executive Committee and Subject ChairpersonsMaricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). JonathanMangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)