Title IV.

Rules on Transmissibility of Rights and Obligations

SUCCESSION  Purely personal rights, such as those relating to family rights, are
extinguished by death.
Chapter 1: General Provisions) (Arts. 774- 780, NCC)  Hence, they are not transmitted to the heirs.
Concepts and Definitions
 Patrimonial rights, generally, are transmissible to the heirs unless
Succession otherwise provided by law or by the will of the testator.
 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  Rights and obligations arising from contract are, as a rule, binding
by operation of law. upon the heirs unless they are not transmissible by their nature, or by
stipulation or by provision of law.
Decedent. Defined  The general rule, therefore, is that heirs are bound by contracts
 The term "decedent" applies generally to the person whose property is entered into by their predecessors-in-interest except when the rights
transmitted through succession, whether or not he left a will. ligations arising therefrom are not transmissible by:
 If the decedent left a will, he is also called a "testator” 1. their nature,
2. stipulation, or
3. provision of law.
Succession and Inheritance Distinguished
 Thus, the heirs cannot escape the legal consequence of a transaction
Inheritance Succession entered into by their predecessor-in-interest because they have
consists of the property and refers to the legal mode by which inherited the property subject to the affecting their com liability common
transmissible rights and obligations this inheritance is transmitted to the ancestor.
existing at the time of his death persons entitled to it surviving the  Being heirs, there is privity of interest between them and the
decedent. decedent.
 The death of a party does not, therefore, excuse nonperformance of
which involves and the contract a property right the rights and
Concept and Extent of Inheritance
obligations thereunder pass to the personal representatives of the
 The inheritance of a person consists of the property and transmissible
deceased.
rights and obligations existing at the time of his death.
 Similarly, nonperformance is not excused by the death of the party
 It is acquired mortis causa and transmitted by death.
when the other party has a property interest in the subject matter of
 Hence, any property accruing since the death of the decedent is not the contract.
part of the inheritance although it pertains to the heir because it is not
transmitted by death but ac quired by the latter by virtue of the right of Rule on Transmissibility of Pecuniary Obligation
accession.
 Pursuant to the rules on the settlement of the estate of deceased
persons, it is only after the debts are paid that the residue of the estate
is distributed among the successors.
 Note that heirs succeed not only to the rights of the deceased but  It appears therefore that it is not actually the heirs who directly pay for
also to his obligations. money debts left by the deceased but the estate of said deceased.

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 With respect to obligations arising from contracts, while the same is  As a consequence of the foregoing principle:
transmissible to the heirs, the latter's liability shall, however, be limited 1. Title or right to a deceased person's property are immediately passed
only up to the value of the property they received from the decedent. to his or her heirs upon death.
 Such transmission is subject to the claims of administration and the
property may be taken from the heirs for the purpose of paying debts
When Heir Acquires Right Over Inheritance and expenses, but this does not prevent an immediate passage of the
Successional Rights are Vested Only Upon Death title upon the death of the decedent, from himself to his heirs.
 Successional rights are vested only at the time of death. Article 777 of
the New Civil Code provides that the rights to the succession are 2. The heirs' rights to the property of the deceased become vested
transmitted from the moment of the death of the decedent. without need for them to be declared "heirs”.

 The moment of death is the determining factor when the heirs acquire a 3. At the precise moment of death, the heirs become owners of the
definite right to the inheritance, whether such right be pure or estate pro indiviso.
contingent.  They become absolute owners of their undivided aliquot share but
 The inheritance vests immediately upon the decedent's death without with respect to the individual properties of the estate, they become co-
a moments interruption. owners.
 As a consequence of this principle, ownership over the inheritance  This co-ownership remains until partition and distribution. Until then,
pasties to the heirs at the precise moment of death not at the time the the individual heirs cannot claim any rights over a specific property
heins are declared, nor at the time of the partition, nor at the from the estate.
distribution of the properties.  This is because the heirs do not know which properties will be
 There is no interruption between the end of the decedent's ownership adjudicated to them yet.
and the start of the hear/legate/devisee's ownership.  Hence, there is a need for a partition before title over a particular
 For intestate heirs, this means that they are immediately entitled to properties vest in the distributee-heirs.
their hereditary shares in the estate even though they may not be  However, heirs, legatees, and devisees bequeathed specific
entitled to any particular properties yet.
properties do not require court adjudication to identify which particular
 For legatees and devisees granted specific properties, this means that properties become theirs, the testator had already identified these.
they acquire ownership over the legacies and devises at that  From the very moment of the tentator's death, title over these
immediate moment without prejudice to the legitimes of compulsory particular properties vests on the heir, legatee, or devisee.
heirs.
4. There is no interruption between the end of the decedent's ownership
 The principle of transmission as of the time of the predecessor's death
and the start of the heir/legate/devise ownership.
in basic in our Civil Code, and is supported by other related articles.
 It is immaterial whether a short or long period of time elapses between
Thus, the capacity of the heir is determined as of the time the decedent
the death of the predecessor and the entry in the possession of the
died Art. 1034), the legitime is to be computed as of the same moment
properties of the inheritance, because the right is always deemed to
(Art 908), and so is the inofficiousness of the donation inter vivos (Art.
retroact to the moment of death.
771).
 Thus, the right of the State to collect the inheritance tax (or estate tax)
 Similarly, the legacies of credit and remission are valid only in the
accrues at the moment of death, notwithstanding the postponement of
amount due and outstanding at the death of the testator (Art. 935),
the actual possession and enjoyment of the estate by the heir, and the
and the fruits accruing after that instant are deemed to pertain to the
tax is based on the value of the property at that time, regardless of
legatee (Art. 948)
any subsequent appreciation or depreciation.

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 5. The possession of hereditary property is also deemed transmitted to  But if the transferees held definite and uncontested titles to a specific
the heir without interruption and from the moment of the death of the number of shares of the corporation, the registration of the transfer
decedent, in case the inheritance is accepted. may not be required before considering the transferee a stockholder of
the corporation.
6. The law in force at the time of the decedent's death shall determine  In the latter situation, registration became a mere formality in
who the heirs should be. confirming their status as stockholders.

Death Contemplated for Succession

Interest of Her Prior to Death of Decedent Kinds of Death Contemplated: Either
1. natural or physical demise or
 Prior to the death of the decedent, the interest of the heir over the 2. presumptive death.
inheritance is merely inchoate or a mere expectancy.
Meaning of Natural or Physical Demise
 Article 1347, paragraph 3 of the Civil Code characterizes a contract  Sections 40, 41, and 42 of the Civil Code do not provide at all a
entered into upon future inheritance as void. definition of death.
 For the inheritance to be considered as future, the succession must  The Code simply provides that civil personality may be extinguished
not have been opened at the time of the contract. by death" and it does not explicitly state that only those who have
 A contract may be classified as contract upon future inheritance, acquired juridical personality could die Death has been defined as
prohibited under the second paragraph of Article 1347, where the cessation of life.
following requisites concur  Life is not synonymous with civil personality One need not acquire civil
1. the succession has not yet been opened; personality first before he/she could die.
2. the object of the contract forms part of the inheritance, and
3. the promissor has, with respect to the object, an expectancy of a right Presumptive Death:
which is purely hereditary in nature.  The law is clear that for purposes of succession, the term "death" also
 The prohibition on contracts respecting future inheritance admits of includes presumptive" for purposes of opening one's succession, the
exceptions, as when a person partitions his estate by an act inter vivos presumption of death is established by law and no court declaration is
under Article 1080 of the Civil Code. needed for the presumption to arise.

 Query: Required Period of Absence:

 If the heirs inherit shares of stock of a corporation, do they  For purposes of opening one's succession, a person in presumed dead
automatically become stockholders of said corporation? by operation of law under the following situations
 As a rule, the transfer of title by means of succession, though effective
and valid between the parties involved. (i.e, between the decedent's
estate and her heirs does not bind the corporation and third parties. Ordinary Absence:
 If a person has been absent, it being un known whether or not he still
 The transfer must be registered in the books of the corporation to
lives, he shall be presumed dead for purposes of opening his
make the transferee heir a stockholder entitled to recognition as such
succession after an absence of 10 years.
both by the corporation and by third parties.
 If he disappeared after the age of 75 years, absence of five years shall
 In other words, unless and until there is compliance with Section 63 of
be sufficient in order that his succession may be opened.
the Corporation Code on the manner of transferring whares, the heirs
do not become registered stockholders of the corporation  The death is presumed to have taken place on the last day of the
period of absence re quired by law.
 However, this rule applies only if the heir holds only an undivided
interest in the shares."

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  If there has been no news about the absentee, the period must be Compulsory Succession
computed from the date of such disappearance.  That which takes place compulsorily by operation of law with respect to
 But if there has been news from or about him, the period should be the legitime in favor of compulsory heirs.
computed, not from the actual receipt of the news, but from the time
referred to by the news, or the time when the news was sent. Heirs, Devisees and Legatees
Concept
Qualified Absence:
 A person is presumed dead for all purposes, including the division of the
estate among the heirs under the following situations:  An heir is a person called to the succession either by the provision of a
1. A person on board a vessel lost during a sea voyage, or an will or by operation of law.
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane,  A devisee in a person to whom gifts of real property is given by will.
2. A person in the armed forces who has taken part in war, and has
been missing for four years, and  A legatee is a person to whom gifts of personal property is given by will.
3. A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. In these cases, the presumptive death is fixed on the very Distinctions
day of the occurrence of the event from which death is presumed,  An heir is anyone who succeeds to the whole or to a portion or fraction
and if such date cannot be fixed, the court determines the middle of of the inheritance, whereas, a devisee or legatee succeeds the testator
the period in which the event could have happened. in a determinate or individualized thing or quantity.

Kinds of Succession and Heirs  A device or legatee can only exist in testamentary succes- sion;
 Kinds of Succession: whereas, an heir may exist whether the succession is testa mentary or
1. Testamentary Succession, intestate.
2. Legal or Intestate Succession,
3. Mixed Succession, and Importance of Distinction
4. Compulsory Succession  In case of preterition, the institu tion of heir is annulled; whereas, the
institution of legatees and devisees is effective to the extent that the
Testamentary Succession legitimes are not im paired
 That which results from the designation of an heir, made in a will
executed in the form prescribed by law.
Kinds of Heirs:
Legal or Intestate Succession 1. Voluntary Heirs
 That which takes place if a person dies without a will, or with a void will,  Those who are instituted by the testator in his will, to succeed to the
or one which has subsequently lost its validity. inheritance or to the portion thereof of which the testator can freely
dispose, their right to the succession depends entirely upon the will.
Mixed Succession: 2. Legal or Intestate Heirs
 That effected partly by will and partly by operation of law.  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.

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3. Compulsory Heirs  As defined, a legitime is that part of the testator property which he
 Those who succeed by force of law to some portion of the inheritance cannot dispose of because the law has reserved it for certain heirs
known the "legitime, in an amount predetermined by law, of which they who are, therefore, called compulsory heirs.
cannot be deprived by the testator, except by a valid disinheritance.

Chapter 2: Testamentary Succession The disposition of his estate

Section I: Wills  The essence of a will is to dispose of the estate of the testator to take
Subsection 1: Wills in General effect after his death.
 Such disposition can be done either directly by the institution of here
or designation of devisees and legatees and the property or share
Wills, In General they are to receive or indirectly by validly disinheriting those who
 A will is an act whereby a person is permitted, with the formalities
would otherwise inherit by operation of law)
prescribed by law, to control to a certain degree the deposition of his
estate to take effect after his death.
 A will is also defined as "a personal, solemn, revocable and free act by  A document which initially comes across as a mere disinheritance is
which a capacitated person dispose of his property and rights and considered a will. An intent to dispose mortis causa can be clearly
declares or complies with duties to take effect after his death. deduced from the terms of the instrument, and while it does not make
an affirmative disposition of the testator's property, the disinheritance of
 Every will must be in writing Article 804 of the NCC says that every will an heir is an act of disposition in itself.
must be in writing.  In other words, the disinheritance results in the disposition of the
 In this jurisdiction, an oral or nuncupative will is not recognized as property of the testator" Unless the will is probated, the disinheritance
valid. cannot be given effect.

Right Make a Will Purely Statutory

 The right to make a will is purely statutory.
 This is clear from the provision of Article 783 of the NCC which states To take effect after his death
that a person is only "permitted" with the formalities prescribed by law,  A will is a disposition mortis causa or it takes effect only upon the death
to dispose of his estate effective upon his death through a will of the testator.
 Men wished to speak after they were dead and the law, by the  This must be so because the right to succession is transmitted only
creation of that instrument (last will and testament, permitted them to from the moment of the death of the decedent.
do so.)
 A survivorship agreement between the husband and the wife, with
respect to their deposit account in a bank, is not a conveyance mortis
Formalities required by law: causa which should be embodied in a will.
 The formalities are provided for in Chapter 2, Section 1, Subsection 3  A will has been defined as "a personal, solemn, revocable and free act
(Articles 804-819 of the NCC). by which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death.
To control to a certain degree  In other words, the bequest or devise must pertain to the testator.
 The power of a testator to dispose of his estate is subject to the  Here, the monies subject of the savings account were in the nature of
limitations provided under the rules on legitimes (Chapter 2. Section 5- conjugal funds.
Articles 886 to 914, NCC)

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Making of Wills is Purely Personal Act 3. The determination of the portions they are to receive, when
Rule referred to by name.
 The making of a will is a strictly personal act.
Exception to rule of non-delegability:
Consequences  The testator may validly delegate the following to a third person:
 As a consequence of the foregoing rule 1. The manner of distribution of specific property or sums of money
1. The making of a will cannot be left in whole or in part to the that the testator may leave in general to specified classes or causes,
discretion of a third person. provided that the testator has already determined the property or
2. The making of a will cannot be accomplished through the amount of money to be given, and
instrumentality of an agent or attorney 2. The designation of the persons, institutions or establishments to
3. The testator cannot make a testamentary disposition in such a which such property or sums are to be given or applied," provided
manner that another person has to determine whether or not it in to that the testator has already determined the class or cause to be
be operative." benefited.
4. Since the will expresses the manner in which a person intends how
his properties be disposed, the wishes and desires of the testator
must be strictly followed.  There is here no delegation of the will or testamentary disposition
 Thus, a will cannot be the subject of a compromise agreement which because the testator himself has already made the disposition except
would thereby defeat the very purpose of making a will that he may entrust to a third person the details in the execution of his
testamentary disposition.

Qualification
 It is the making of the disposition or the exercise of the disposing power Rules in Interpretation of Wills
that is not subject to delegation Rule favoring testacy:
 In other words, the testator cannot substitute the mind or will of  Our jurisdiction accords great respect to the testator's freedom of
another for his own. disposition. It is a fundamental principle that the intent or the will of the
 Hence, the mere mechanical act of drafting the will may be done by a testator, expressed in the form and within the limits prescribed by law,
must be recognized as the supreme law in succession.
third person.
 All rules of construction are designed to ascertain and give effect to
 It does not fall within the prohibition
that intention. It is only when the intention of the testator is contrary to
What constitute exercise of power of disposition: law, morals, or public policy that it cannot be given effect.
Essence of will making  Hence, as a rule, testate succession has always been preferred over
 The essence of will making or the exercise of the disponing power is intestacy "
provided in Article 785 of the NCC which states that "the duration or  Hence, there is no basis to apply the provisions on intestacy when
efficacy of the designation of heirs, devisees or legatees, or the testate succession evidently applies."
determination of the portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person." As a consequence of the foregoing rule:

 Upon the discovery and probate of the decedent's will, the letters of
What may not be delegated
administration shall be revoked and the intestate proceedings shall be
 The following:
suspended.
1. The designation of heirs, devisees or legatees
 The Court had the occasion to uphold the doctrine of precedence of
2. The duration or efficacy of such designation (including such
probate proceedings over intestate proceedings.
things as conditions, terms or substitutions), and

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  Thus, it has been held repeatedly that, if in the course of intestate  An example is when a testator gives a legacy to my cousin "Anna" and
proceedings pending before a court of first instance it is found that the it will turn out that the testator has three cousins named "Anna"
decedent had left a last will, proceedings for the probate of the latter
should re place the intestate proceedings even if at that state an
administrator has already been appointed, the latter being required to
Patent (Extrinsic) Ambiguity
render final account and turn over the estate in his possession the
Concept
executor subsequently appointed.
 It is the kind of ambiguity which appears upon the face of the
 This however, is understood to be without prejudice that should the instrument.
alleged last will be rejected or is disapproved the proceeding shall  It may exist when an uncertainty arises upon the face of the will, as to
continue as an in testacy. the ap plication of any of its provisions.
 For example, when a testator gives a devise to some of the eleven
 As much as possible, a testator's will is treated and interpreted in a way
children of my only brother.
that would render all of its provisions operative.
 An interpretation that will render a testamentary disposition operative How to Address Ambiguities
takes precedence over a construction that will nullify a provision of the  Ambiguities, washer latent or patent, shall be resolved by:
will. 1. determining the intention of the testator by examining the winds of
the will, and/or
 Doubts are resolved in favor of testacy especially where the will evinces 2. resorting to parol or extrinsic evidence.
an intention on the part of the testator to dispose of practically his whole
estate.
 So compelling is the principle that intestacy should be avoided and  As to the admissibility of parol or extrinsic evidence to aid testamentary
that the wishes of the testator should prevail that sometimes the interpretation the NCC does not make any distinction between patent
language of the will can be varied for the purpose of giving it effect. and latent ambiguities.

Rule in Cost of Ambiguities  Under the NCC, therefore, extrinsic evidence is admissible to show the
Two kind of ambiguities situation of the testator and all the relevant facts and circumstances
1. Latent and surrounding him at the time of the making of the will for the purpose of
2. Patent explaining or resolving an ambiguity. whether latent or patent.

 However, such extrinsic evidence CANNOT include oral declarations of

Latent Intrinsic Ambiguity: the testator as to his intention.
 Hence, by implication, written declarations made by the testator
Concept outside of the will are admissible.
 It is the kind of ambiguity which cannot be seen from a mere perusal of
the will but which appears only upon consideration of extrinsic Rule that intent of testator is supreme law in succession:
circumstances.  Hence, the following rules:
 In short, it is an ambiguity not apparent on the face of the wil.
On non-technical words:
 It may exist when there is an imperfect description or when no person or Rule:
property exactly answers the description."  Words of a will are to be taken in their ordinary and grammatical sense

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Exception: Exception: Unless the testator expressly declares that he gives the thing in
 When a clear intertion to use them in another w e can be gathered and its entirety. When he expressly states that he bequeaths the entire property,
that other sense can be ascertained it must appear that he does with knowledge that he is bequeathing the
property partly belonging to a stranger

On technical words:
Rule:
 They are to be taken on their technical sense.  In the above exception, the testator may subsequently acquire the
interest of the third person in the property.
Exceptions:  If he does not, the following rules shall be applied:
1. When the context clearly indicates a contrary intention or  The heir upon whom the obligation in imposed or the estate must
2. When it satisfactorily ap pears that the will was drawn solely by the acquire the interest of the third person in the thing and give the same
testator who was unacquainted with such technical sense to the legatee or devise
 But if the third person re- fuses to alienate the same. or demands an
excessive price therefor the heir or the estate shall only be obliged to
Rule if Some dispositions are invalid give the just value of the interest of the third person.
General rule
 The invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions.
Rule on properties acquired after execution of wills:
Exception:
Rule
 Unless it in to be presumed that the testator would not have made such
 Properties acquired during the interval between the execution of the will
other dispositions if the first invalid disposition had not been made.
and the death of the testator are not, as a rule, included among the
properties disposed of.
Rule on extent of legacy or devise:
Exception:
 If testator owns the entire property  Unless it should expressly appear in the will itself that such was the
intention of the testator, such as when the will covers or speaks of the
General rule: Every devise or legacy shall cover all the interest which the "whole estate" or the entire inheritance
testator could devise or bequeath in the property disposed of.

Exception: Unless it clearly appears from the will that the testator intended Laws governing the validity of wills
to convey a less interest. As to formal for extrinsic validity
 The forms and solemnities of wills shall be governed by the laws of the
If testator only owns a part or interest in property: country in which they are executed following the principle of lex loci
celebrationis.
General rule: If the testator, heir or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise shall be understood  If the will is executed in the Philippines, it is the law in force at the time
limited to such part or interest. of the making of the will which shall govern, with respect to the formality
of the will.
This rule will apply whether or not the testator knew that the thing was partly
owned by a stranger.


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As to intrinsic validity Requirement of Soundness of Mind
 With respect to the intrinsic validity of testamentary provisions, they When required
shall be governed by the national law of the person whose succession is  The test of testamentary capacity is at the time of the making of the will.
under consideration.  This is clear from Article 708 of the Civil Code which states that in
 In addition, it is the law in force at the time of the testator's death that order to make a will it is essential that the testo for be of sound mind
governs because it in the law at the time when the succession opens not the time of its execution."
which must determine the intrinsic validity of the provision of the will  If he not sound mind at that time, the will is invalid regardless of his
state of mind before or after such execution.
 In other words, the will of an incapable is not validated by the
Chapter 2: Testamentary Succession supervening of capacity
 Conversely, if the testator was of sound mind at the time of the making
Section 1: Wills of the will, the will is valid even if the testator should later on become
insane and die in that condition.
Subsection 2: Testamentary Capacity and Intent (Arts. 796 - 803, NCC)  In other words, supervening incapacity does not invalidate an effective
will.

Testamentary Capacity
Qualification and Capacity to Make a Will Test of Soundness of Mind:
 The capacity of a person to make a will shall be governed by his Requisites
national law.  According to Article 799 of the Civil Code, the three things that the
 Only natural persons are qualified to make a will. testator must have the ability to know to be considered of sound mind
are as follows:
1. the nature of the estate to be disposed of,
 As a rule, all natural persons are qualified to make a will UNLESS:
2. the proper objects of the testator's bounty, and
1. He is expressly prohibited by law
3. the character of the testamentary act.
2. He is below 18 years of age, or
3. He is of unsound mind at the time of its execution  To constitute a sound and disposing mind, it is not necessary that the
mind be unbroken or unimpaired or unshattered by disease or
otherwise.
 It has been held that testamentary incapacity does not necessarily
Reminder require that a person shall actually be insane or of unsound mind
 A person suffering from civil interdiction is qualified to make a will
because he is deprived only of the power to dispose of his properties
through acts inter vivos, but not through acts mortis causa. Not Necessarily of Unsound Mind:
 Mere weakness of mind or partial imbecility from disease of body or
 A married woman may make a will without the consent of her husband from a does not render a person incapable of making a will.
and without the authority of the court, and she can dispose by will of all  Likewise, the state of being forgetful does not necessarily make a
her separate property as well as her share of the conjugal partnership or person mentally unsound so as to render him unfit to execute a will. A
absolute community. weak or feebleminded person may make a valid will, provided he has
understanding and memory sufficient to enable him to know what he is
about to do and how or to whom he is disposing of his property.

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  To constitute a sound and disposing mind, it is not necessary that the
mind be unbroken or unimpaired or unshattered by disease or Consequence:
otherwise.  The person who maintains the validity of the will han the burden of
 It has been held that testamentary incapacity does not necessarily proving that the testator made the will during a lucid interval
require that a person shall actually be insane or of unsound mind.
Chapter 2: Testamentary Succession
Nature of the Estate. Section 1: Wills Subsection 3: Forms of Wills
 The testator must have a fairly accurate knowledge of what he owns. Arts. 804 - 819, NCC
The more he owns, the less accurate is his knowledge of his estate.
 It is not required that he must have knowledge of all the details of his
Kinds of Wills
properties.
Two Kinds of Wills: Under the Civil Code, there are two kinds of wills
Proper Object of His Bounty which a testator may execute:
 The testator should know, under ordinary circumstances, his relatives in
the most proximate degrees, although much knowledge decreases as 1. Ordinary or Attested/Notarial
the degrees become remote.  The first kind is the ordinary or attested will, the execution of which is
 The omission of com relatives in the will does not, however, affect the governed by Articles 804 to 809 of the Civil Code.
will formal validity.  The ordinary will must be acknowledged before a notary public by a
testator and the attesting witness.
Character of Testamentary Act  Hence it is likewise known as notarial will.
 The testator must be aware that the instrument he is executing is an act
mortis causa which will dispose of his property upon his death. 2. Holographic
 The other kind of will is the holographic will, which Article 810 of the Civil
Burden of Proof Code de one that is entirely written, dated, and signed by the testator
Presumption in Favor of Sanity himself .
 There is a presumption in favor of sanity It is incumbent upon those who  This kind of will unlike the ordinary type, requires no attestation by
oppose the probate of a will to clearly establish that the decedent was witnesses.
not of sound and disposing mind at the time of the execution of said will.
 Otherwise, the state is duty bound to give full effect to the wishes of Formal Requirements Common to Both Wills
the testator to distribute his estate in the manner provided in his will so Law Governing Extrinsic Validity of Wills:
long as it is legally tenable.  The form and solemnities of wills shall be governed by the laws of the
country in which they are executed and the validity of a will as to its form
depends upon the observance of the law in force at the time it is made.
Exception
 The presumption is in favor of insanity in the following instances: Common Requirement in Both Wills
1. When the testator, ne month or less, before the execution of the will  A common requirement in both kinds of will is that they should be in
was publicly known to be insane or writing and must have been executed in a language or dialect known to
2. When the testator executed the will after being placed under the testator.
guardianship or ordered committed, in either cane, for insanity
under Rules 93 and 101, Rules of Court), and before said or- der
has been lifted.

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Wills Must be in Writing  A will written in English, which was not known to the Igorot testator, is
 Every will executed in the Philippines must be in writing. void and was disallowed.
 This is a common requirement for both notarial attested and
holographic wills.  There is no statutory requirement to state in the will itself that the
testator knew the language or dialect used in the will.
 The requirement is mandatory. If the will is not in writing, it is void and  This is a matter that a party may establish by proof aliunde.
cannot be probated.  But there must be proof of compliance with such requirement.
 Hence, Philippine laws do not recognize the validity of nuncupative  In some cases, it is true, this lack of evidence was considered cured
wills." which are oral wills declared or dictated by the testator and by presumption of knowledge of the language or dialect used in the
dependent merely on oral testimony. will as where the will is executed in a certain province or locality, in the
dialect currently used in such province or locality in which the testator
 Holographic wills must be entirely handwritten by the testator himself to is a native or resident, the presumption arises that the testator knew
be valid. the dialect so used, in the absence of evidence to the contrary:" or
 Hence, a notarial or attested will may either be: where the will is in Spanish, the fact that the testratrix was a "mestiza
1. entirely handwritten by a person other than the testator; española," was married to a Spaniard, made several trips to Spain,
2. partly handwritten by the testator himself and partly handwritten and some of her letters in her own handwriting submitted as evidence
by another person: by the oppositor, are in Spanish, give rise to the presumption that she
3. entirely printed engraved or lithographed; or knew the language in which the will was written, in the absence of
4. partly handwritten (whether by testator or another person and proof to the contrary, But where the testator is a Visayan residing in
partly printed, engraved or lithographed San Juan, Rizal, and the will was executed in the City of Manila in the
Spanish language, no presumption can rise that the testator knew the
Spanish Language.
Must be Executed in Language Known to Testator  Here, the Court ruled that the burden to prove compliance with the
requirement is incumbent on the parties who presented the will for pro
 Every will must be executed in a language or dialect known to the bate.
testator.  In another case, where the will was also executed in the Spanish
 This again is a common requirement for both notarial attested and language, the Court ruled that the fact that the testator used to gather
holographic wills. Spanish-speaking people in their place and in these gatherings, the
testator and his companions would talk in the Spanish language,
 The requirement is absolute and mandatory. sufficiently proves that the testator speaks the Spanish language
 If the will is executed in a language or dialect not known to the
testator, the will is void and cannot be probated.
 This rule will apply even if the provisions of the will are interpreted or  The foregoing requirement applies only to the testator, whether in
explained to the testator. holographic or notarial/attested will.
 Thus, when in the opening paragraph of the will, it was stated that  The requirement does not apply, however, to witnesses in a notarial
English was a language "understood and known" to the testatrix, but in attested will.
its concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language," it could only mean that  In the case of an ordinary or attested will its attestation clause need not
the will was written in a language not known to the illiterate testatrix be written in a language or dialect known to the testator since it does not
and, therefore, it is void. form part of the testamentary disposition.

11
  Furthermore, the language used in the attestation clause likewise First Formal Requirement
need not even be known to the attesting witnesses. Requirement:
 The last paragraph of Article 805 merely requires that, in such a case,  That the will must be sub scribed at the end thereof by the testator
the attestation clause shall be interpreted to said witnesses. himself or by the testator name written by some other person in his
presence, and by his express direction.

Special Formalities in Notarial Attested Wills  There are two ways by which the testator can subscribe on it notarial
Additional Formal Requirements: attested will
 In addition to the common requirements in Article 804 of the NCC, the 1. by personally subscribing thereon; or
following are the special requirements for notarial attested wills: 2. by letting someone signed his name in his presence and by his
express direction
(1) It must be subscribed at the end thereof, in two ways: First mode: by personally subscribing thereon
Thumbmark or Thumbprint Sufficient.
a. by the testator himself, or
 The Court has repeatedly held that the legal requisite that the will should
b. by the testator's name written by some other person in his
be signed by the testator is satisfied not only by the customary written
presence, and by his express direction.
signature but by a thumbprint or thumb mark or other mark affixed by
(2) It must be attested and subscribed by at least three credible witnesses in him.
the presence of the testator and of one another.  The construction put upon the word "signed" by most courts is the
original meaning of a signum or sign, rather than the derivative
(3) The testator or the person requested by him to write his name must also meaning of a sign manual or handwriting.
sign every page, except the last, on the left margin in the presence of the  In a case where the testator was suffering from partial paralysis and
witnesses chose to affix his thumbmark instead of directing someone else to sign
for him, the Court held that there was nothing curious or suspicious in
(4) The witnesses must sign every page on the left margin in the presence of
the fact that the testator chose the use of mark as the means of
the testator and of one another.
authenticating his will.
(5) All pages must be numbered correlatively in letters on the upper part of  The Court explained that it was a matter of taste or preference since
each page. both ways are good.

(6) It must contain an attestation clause which expressly states the following
No Requirement to State in Attestation Clause
 The fact that the testator affixes his thumb print or thumbmark to the
instrument instead of signing his name is not required to be stated in the
a. the number of pages used upon which the will is written; attestation clause.
b. the fact that the testator signed the will and every page thereof, or  While in some cases the signing by mark was described in the will or
caused some other person to write his name, under his express in the attestation clause, it does not appear that the Court ever held
direction in the presence of the instrumental witnesses: that the absence of such de scription is a fatal defect.
c. the fact that the witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another Where Testator Affixed His Thumbmark and Caused Another Person to
(7) It must be acknowledged before a notary public by the testator and the Sign His Name
witnesses.

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 Where such mark is affixed by the decedent, it is unnecessary to state  Thus, in a case where one of the witnesses, after signing the will, was
in the attestation clause that another person wrote the testator's name about to leave the house when he saw the third witness in the act of
at his request. affixing the latter's signature but did not actually saw the signing, it
was ruled that the will was signed in his presence because the
Cross as Signature: evidence disclosed that at the moment when the witness Javellana
 In an earlier case, it was held that the placing of a cross, by a testatrix, signed the document he was actually and physically present and in
opposite her name attached to an instrument purporting to be her last such position with relation to Jaboneta that he could see everything
will and testament is a sufficient. compliance with the requirements of that took place by merely casting his eyes in the proper direction and
the statute. without any physical obstruction to prevent his doing so.
 But where one subscribing with we in the outer room at the time when
 In Garcia v. Lacuesta, however the Court denied probate holding that a the testator and the other subscribing witnesses attached their sig-
will signed with a crown written after the testator's name is not a natures to the instrument in the inner room and the two rooms were
sufficient signature. separated by a curtain which obstructed the view of the witness
 The Court explained that the mere sign of the cross could not be outside, the will would be invalid because the attaching of those
likened to a thumbmark as it does not have the trust worthiness of the signatures under circumstances not being done "in the presence of
latter It must, however, be emphasized that in thin case no showing the witness in the outer room.
was made that the cross mark was the testator's habitual signature  This because the line of vision from this wit ness to the testator and
nor was any explanation given why he should use a cross when he the other subscribing witnesses would necessarily have been impeded
knew how to sign. by the curtain separating the inner from the outer one at the moment
of inscription of each signature.
 In Garcia the Court ruled that the attentation clause was fatally defective Second mode: By causing another person to write his (testator's) name
for failing to state that the testator caused another person to write his in his presence and at his express direction
name under his express direction and disallowed the will although the
testator wrote a cross immediately after his name. Requisites:

1. The testator's name is writ- ten by some other person in his

 The testator must sign in the presence of at least three instrumental
presence and by his express (not necessarily writ ten) direction
witnesses, otherwise, the will is void.
2. Such person signed the will and every page thereof in the presence
of the instrumental witnesses to
 The true test of presence of the testator and the witnesses in the
3. The person requested by the testator signs the testator's name, not
execution of a will is not whether they actually saw each other sign, but
his; and
whether they might have been seen each other sign, had they chosen to
4. The fact that the testator caused some other person to write his
do so, considering their mental and physical condition and position with
name in his presence and by his express direction and also in the
relation to each other at the moment of description of each signature.
presence of the instrumental witnesses is stated in the attestation
 The question whether the testator and the subscribing witnesses to
clause.
alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon Testator's Name Must be Written
the paper at the moment of its subscription by each of them, but that  The important thing is that it clearly appears that the name of the
at that moment existing conditions and their position with relation to testatrix was signed at her express direction:
each other were such that by merely casting the eyes in the proper  it is unimportant whether the person who writes the name of the
direction they could have seen each other sign. testatrix signs his own or not.

13
  There is no necessity whatever, so far as the validity of the instrument
is concerned, for the person who writes the name of the principal in Who May Sign:
the document to sign his own name also.  It is immaterial who writes the name of the testatrix provided it is written
 To hold a will invalid for the lack of the signature of the person signing at her request and in her presence and in the presence of all the
the name of the principal is a complete abrogation of the law of wills, witnesses the execution of the will.
as it rejects and destroys a will which the statute expressly declared  Therefore, any person may sign for him.
as valid.  Even one of the subscribing or attesting witness es may sign for the
 However, where the person who signed the will for the testator wrote testator In one case, where it e appears in a will that the testator has
his own name to the will instead of writing that of the testator, so that stated that by reason of his inability to sign his name he requested
the testator’s name nowhere appeared attached to the will the one one of the three witnesses present to do so, and that as a matter of
who executed it the will cannot be allowed. fact, the said witness wrote the name and surname of the testator
who, stating that the instrument executed by him contained his last
will, put the sign of the cross between his said name and surname, all
Form of Signing of which details set forth in a note which the wit are nesses forthwith
 In Ex parte Arcenas, the Court suggested that the signing be in the subscribed in the presence of the testator and of each other, the Court
following manner John De, by the testator, Richard Roe"; or in this form: ruled that said will may be probated.
"By the testator John Doe, Richard Roe.
 All this must be written by the witness signing at the request of the
testator. Must be Stated in Attestation.
Clause:
 In the Arcenas cane the Court pointed out the correct formula for a  The fact that the testator caused some other person to write his name,
signature which ought to be followed, but did not mean to exclude any under his express direction, in his presence and in the presence of the
other form substantially equivalent. instrumental witnesses is re quired to be stated in the at testation
clause; otherwise the will is void.
 Thus, in In re Will of Siason, where at the end of the will it was written  But where the testator also affixed his thumb mark or thumbprint in his
"At the request of Señora Maria Siason," followed by signatures of the will and every page thereof, it is no longer necessary to state in the
instrumental witnesses, the Court held the will to be valid. attestation clause that another person wrote the testator's name at his
 In said case, since the name of the testatrix occurred after the words request.
"at request of," it was contended that they form a part of the recital and  This is because the legal requisite that the will should be signed by the
not a signature and that the only signature being the names of the testator is satisfied not only by the customary written signature but by
witnesses themselves. the testator or testatrix' thumb mark.
 The Court, however, sustained this form of signature, since the same  However, the attestation clause in fatally defective for failing to state
immediately follows the testament itself and precedes the names of that the testator caused another person to his name if the testator
the witnesses, unlike in the case of Gusion Concepcion, where the simply wrote a cross immediately after his name, as the cross cannot
name of where the testatrix occurred only in the body of the attestation and does not have the trustworthiness of a thumbmark.
clause and after the first signatures of the witnesses.  But this ruling applies only in the absence of any showing that the
 Hence, the other person must write the testator's name somewhere cross is the testator's habitual signature or in the absence of any
between the dispositive provisions of the will and the attestation explanation why the testator uses a cross as his signature when he
clause. knows how to sign.
 If the name appears only in the attestation clause, and not before it,
the will is not considered as signed with the testator's name.

14
The will must be subscribed "at the end thereof.  Two acts required of the witnesses it will be noted that Article 805
Purpose of Requirement requires that the witness should both attest and subscribe to the will in
 The purpose of this requirement is to prevent fraud or interpolations the presence of the testator and of one another.
between the testamentary dispositions and the signature.
 An instrument in the form of a will cannot be probated, if it is not  “Attestation" and "subscription" differ in meaning
signed at the end.

End of the will. Distinction

 The end of the will refers to the point where the last testamentary
disposition ends (or at its logical end). Attestation Subscription
 If signed at this portion, the will is valid because non-dispositive act of senses act of the hand
portions are not essential parts of the will. mental mechanical
consists in witnessing the testator's the signing of the witnesses!
 Where the signature is followed by dispositive provisions, even the execution of the will in order to see names upon the same paper for
portion of the instrument preceding the signature cannot be probated, and take note mentally that those the purpose of identification of such
because the instrument must be considered as a whole. things are done which the the paper as the will which was
statute requires for the execution of executed by the testator.
 In Taboada v. Rosal, where the will consists of two pages (the first a will and that the signature of the
testator exists as a fact
page contains the entire testamentary dispositions and in signed at the
end or bottom of the page by the testatrix alone and at the left hand
margin by the three instrumental witnesses while the second page Effect of Unsigned Attestation Clause:
which contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three attesting witnesses and  If the page containing the attestation clause is signed by the witnesses
at the left hand margin by the testatrix), the lower court refused to allow on the left-hand margin but their signatures do not appear at the bottom
it because the witnesses did not sign at the end thereof. of the attestation clause, the will is fatally defective because the same
 The respondent judge argued that for notarial will to be valid, it is not cannot be considered to have been validly attested to by the
enough that only the testatrix signs at the "end" but the three instrumental witnesses, as they failed to sign the attestation clause.
subscribing witnesses must also sign at the same place or at the end.
 The Court ruled, however, will was subscribed that the in manner  Article 805 particularly segregates the requirement that the instrumental
which fully satisfies the purpose of the law. witnesses sign each page of the will, from the requisite that the will be
 The Court explained that the signatures of the instrumental witnesses attested and subscribed by the instrumental witnesses.
on the left margin of the first page of the will attested not only to the  The respective intents behind these two classes of signature are
genuineness of the signature of the testatrix but also the due distinct from each other.
execution of the will as embodied in the attestation clause.  The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing
Second Formal Requirement: forms part of the will.
Requirement:  On the other hand, the signatures to the attestation clause establish
 The will must be attested and subscribed by at least three credible that the witnesses are referring to the state- elements contained in the
witnesses in the presence of the testator and of one another. attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will.
 An unsigned attestation clause results in an unattested will.

15
  Even if the instrumental will, witnesses signed the left-hand margin of  If the third witness is the notary public himself before whom the will was
the page containing the unsigned attestation clause, such signatures supposed to have been acknowledged, the requirements of Articles 805
cannot demonstrate these witnesses under takings in the clause, and 806 of the Civil Code are not satisfied.
since the signatures that do appear on the page were directed  To allow the notary public to act as third witness would have the effect
towards a wholly different avowal. of having only two attesting witnesses to the will which would be in
 If an attestation clause not signed by the three witnesses at the bot contravention of the provisions of Article 805 requiring at least three
tom thereof, be admitted as sufficient, it would be easy to add such credible witnesses to act as such and of Article 806 which requires
clause to a will on a sub sequent occasion and in the absence of the that the testator and the required number of witnesses must appear
testator and any or all of the witnesses. before the notary public to acknowledge the will.
 The result would be that only two witnesses appeared before the
Number of Witnesses: notary public for that purpose.
 Article 805 of the NCC requires that the will be attested and subscribed
by three or more credible witnesses.  The reason for this is that if the third witness were the notary public
himself, he would have the aww assent, or admit his having signed the
will in front of himself.
Mandatory Requirement
 The requirement as to the number of instrumental witnesses is  This cannot be done because. he cannot split his personality into two
mandatory. so that one will appear before the other to acknowledge his
participation in the making of the will.
 If less than three wit nesses attested and subscribed thereto, the will is
void. The witnesses must sign in the presence of the testator and of one
 This is in consonance with the rule that acts executed against the another
provisions of mandatory or prohibitory laws shall be void, except when
the law itself authorizes their validity.  The requirement is mandatory

 If the attestation clause does not indicate the number of witnesses, but  As to the meaning of "in the presence of the testator and of one
the will clearly shows four signatures, that of the testator and of three another," the Nera ruling applies.
other persons, it is reasonable to conclude that there are three
witnesses to the will.  In Jaboneta e Gustillo, as the third witness was signing the will and all
 The rule on substantial compliance in determining the number of the pages thereof. one of the witnesses stood up and left the room.
witnesses can be ap plied here because the question is answered by  He was still in the room, however, when he saw the third witness
an examination of the will itself and without the need for presentation moving his hand and pen in the act of affixing his signature on the will.
of evidence aliunde.  In this case, the Court held that the fact that one of the witnesses was
in the act of leaving, and that his back was turned, while a portion of
 If a witness, or his/her spouse, parent or child, has been made a the name of the third witness was being written was of no moment.
devisee or a legatee in the will to which he/she acts as a witness,  The Court took note of the fact that said witness was in such position
he/she does not thereby become disqualified as a witness but the with relation to the third witness that he could see everything which
legacy or devise is void, unless there are three other witnesses to such took place by merely easting his eyes in the proper direction, and
will. without any physical obstruction prevent his doing so.
 Hence, the Court concluded that the will was signed in his presence

Third Formal Requirement:

16
Requirements. The testator or the person requested by him to write his  In Vda. de Enriquez v. Abadia, the will was also declared void because
name must also sign every page, except the last, on the left margin in the the back pages of the first two folios of the will were not signed by any
presence of the witnesses. one, not even by the testator and were not numbered, and as to the
three front pages, they were signed only by the testator.

 There are actually three requirements in this rule  The last page need not be signed by the testator on the left margin
1. The testator or the person requested by him to write his name because, being the page where the end of the will is, it already contains
must sign on every page, except the last; the testator's signature.
2. Such signature be on the left margin: and
3. The signing must be done in the presence of the witnesses.  The requirement that the signature be placed on the left margin is
merely directory.
 Signing in the presence of witnesses, as previously discussed, is
mandatory.  According to the weight of authority, this requirement regarding the
location of the marginal signatures is not mandatory in character,
 The requirement that the testator or the person requested by him to provided, of course, that such signatures are present in every page of
write his name must sign on every page is also mandatory. the will.

 The law refers expressly to "page" and not to sheet or leaf or folio. A  In Avera v. Garcia, for example, the validity of the will was sustained
sheet has two pages, the front and the reverse. and consequently, it was allowed to probate even if the signatures
 If both pages of the sheet or leaf are used, it is therefore necessary appear in the right margin instead of the left because the instrument,
that both front and reverse sides should bear the signatures of the after all, contains the necessary signatures on every page. The rule laid
testator and of each of the witnesses. down in that case is that the document con tained the necessary
signatures on each page, whereby each page of the will was
 In Re Estate of Saguinsin, the will presented for probate consists of two authenticated and safeguarded against any possible alteration.
folios, the first one having testamentary dis positions written on both
sides or pages, and the second folio having only the signature of the  In the subsequent case of Neyva v. Mojal, the Court applied the doctrine
testratix and the attestation clause on its front side. in Avera as each and every page used of the will likewise bears the
 In other words, three pages of the two folios were actually written signatures of the testator and the witnesses, even if said signatures do
upon, but signatures on the left margin appear only on the front page not all appear on the left margin of each page.
of each folio, nothing have been written on the margin of the reverse  The Court held that much fat does not detract from the validity sf the
side or page of the first folio. will.

 In other words, only the leaves, or alternate pages, were signed and not  In Abangan v. Abangan where the will consisted only of two pages, the
each writ ten page. first page containing all the testamentary dispositions signed at the
 The Court ruled that the defect is radical and totally vitiates the bottom by the testatrix and the three witnesses, and the second page
testament, for as observed in that case, it was possible that in the will containing only the attestation clause signed by the attesting witnesses
as there originally executed by the testratrix only the alternative pages without the signature of the testatrix.
had been used, leaving blanks on the reverse sides, which  Neither page was signed by the testatrix and the witnesses on the left
conceivably might have been filled in subsequently. margin.
 The Court allowed the will to be probated, explaining In requiring that
each and every sheet of the wilt should also be signed on the left

17
 margin by the testator and three witnesses in the presence of each three attesting witnesses in each and every page. The witness testified on
other, the law evidently has for its object (referring to the body of the his failure to sign page three of the original. He admitted that he may have
will itself) to avoid the substitution of any of said sheets, thereby lifted two pages instead of one when he signed the same, but affirmed that
changing the testator's disposition. page three was signed in his presence.
 But when these dispositions are wholly written on only one sheet  Court ruled that the inadvertent failure of one witness to affix his
signed at the bottom by the testator and three witnesses, their signature to one page of a testament. due to the simultaneous
signatures on the left margin would be completely purposeless. lifting of two pages in the course of signing, is not per se sufficient
to justify denial of probate.
 A will consisting of seven pages can be admitted to probate, if the first  The Court explained that the law should not be so strictly and
six pages are duly signed on the left margin, and the seventh page, literally interpreted as to penalize the testatrix on account of the
which contain the final disposition of the will and the attestation clause, inadvertence of a single witness over whose conduct she had no
is signed by the testator and the witnesses at the bottom, even if not control, where the purpose of the law to guarantee the identity of
signed by them at the left margin. the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
4th Formal Requirement:
The witnesses must sign every page on the left margin in the presence 5th Formal Requirement:
of the testator and of one another. All pages of the will shall be numbered correlatively in letters, e.g.,
There are three requirements in this rule: "one", two and so on, placed on the upper part of each page.
(1) the witnesses must sign on every page;
(2) such signature be on the left margin; and Purpose of Requirement:
(3) the signing must be done in the presence of the testator and of one  The purpose of the law in prescribing the paging of wills is to guard
another.
against fraud, and to afford means of preventing the substitution or
of defecting the loss of any of its pages
 Signing of the witnesses in the presence of the testator, as previously
discussed, is mandatory. Martir v. Martir
 The requirement that all the witnesses must sign on every page is also  the will has four sheets and the first sheet bears no number, but
mandatory. the authenticity of that sheet and the genuineness of the signatures
 The signature of the testator alone on all the pages will not be enough; of the testator and the witnesses thereon are not questioned.
the law expressly requires also the signatures of the witnesses.  The Court held that in the absence of collusion or fraud and there
 The failure of all three witnesses to sign the left margin of every page being no question regarding the authenticity of the first page and
even when the testator's signature appears thereon, is a fatal defect the genuineness of the signatures appearing thereon, the mere fact
that the first sheet is unnumbered is not sufficient to justify the
Icasiano v. Icasiano invalidation of the will.
 the original of the will, which was surrendered simultaneously with
the filing of the petition for admission to probate consists of five Lopez v. Liboro
pages, and while signed  the will in question comprises two pages, each of which is written
on one side of a separate sheet. The first sheet is not paged either
at the end and in every page, it does not contain the signature of one of the in letters or in Arabic numerals.
attesting witnesses on page three thereof; but the duplicate copy attached to  The Court held that the omission to put a page number on the first
the amended and supplemental petition is signed by the testatrix and her sheet is supplied by other forms of identification more trustworthy

18
 than the conventional numerical words or characters. The  refers to that part of an ordinary will whereby the attesting
unnumbered page is clearly identified as the first page by the witnesses certify that the instrument has been executed before
internal sense of its contents considered in relation to the contents them and to the manner of the execution of the same.
of the second page.  It is a separate memorandum or record of the facts surrounding the
 By their meaning and coherence, the first and second lines on the conduct of execution and once signed by the witnesses, it gives
second page are, according to the Court, undeniably a continuation affirmation to the fact that compliance witli the essential formalities
of the last sentence of the testament, before the attestation clause, required by law has been observed.
which starts at the bottom of the preceding page. As page two  It is made for the purpose of preserving in a permanent form a
contains only said two lines, the attestation clause, the mark of the record of the fact that attended the execution of a particular will, so
testator and the signatures of the witnesses, the other sheet cannot that in case of failure of the memory of the attesting witnesses, or
by any possibility be taken for other than page one. other casualty, such facts may still be proved.
 When all the dispositive parts of the will have been written on one
page or sheet only, the object of the statute disappears, because Distinct From Will:
the removal of this single sheet, although unnumbered, cannot be  The will is distinct and different from the attestation, although both
hidden; hence, such sheet need not be numbered. are necessary to the validity of the will.

Place of Numbering of Pages:  Note that while the law requires the will to be executed in a
 The law provides that the numbering of the pages should be in language or dialect known to the testator, otherwise the will is void;
letters placed on the upper part of the sheet, but if the paging the attestation clause, on the other hand, need not be written in a
should be placed in the lower part, the testament is not void for this language or dialect known to the testator since it does not form part
sole reason. of the testamentary disposition.
 Hence, the signature of the testator is not necessary in the
Numbering in Letters: attestation clause because this, as its name implies, appertains
 It is not necessary that the pages of the will be numbered only to the witnesses and not to the testator since the latter does
correlatively in letters such as "one," "two," "three," etc. not attest, but executes, the will.
 The requirement of the law is sufficiently complied with if the folios
were paged with the letters "A," "B," "C," etc., or in Arabic
numerals,or in any form of identification. Requirement of Signature of Witnesses:
 It was held that this way of numbering the pages of a will is in  Since it is a declaration made by the witnesses and not by the
compliance with the spirit of the law, inasmuch as either one of testator, it need be signed only by the witnesses and not by the
these methods indicates the correlation of the pages and serves to testator.
prevent the abstraction of any of them.  An unsigned attestation clause results in an unattested will.
 Even if the instrumental witnesses signed the left-hand margin of
6th Formal Requirement: the page containing the unsigned attestation clause, such
It must contain an attestation clause which expressly states the facts signatures cannot demonstrate these witnesses' undertakings in
required by law.2The complete absence of such a clause would result the attestation clause, since the signatures that do appear on the
in the invalidity of the will. page were directed towards a wholly different avowal.
 Where the attestation clause is left unsigned, it would result in the
Concept of "attestation clause": invalidation of the will as it would be possible and easy to add the
An attestation clause clause on a subsequent occasion in the absence of the testator and
the witnesses.

19
  An attestation clause that is made by the testator himself the acts not stated in the omitted textual requirements
substantially complies with the requirements of the law where it were actually complied with in the execution of the will.
contains all the facts required to be stated therein and signed by all
the witnesses together with the testator. The law does not require
that the attestation clause be contained in a single clause.
 Thus, where a will does not contain a separate and independent Examples:
attestation clause, but the concluding paragraph of the body of the (a) If the attestation failed to state that the testator signed the will in the
will was written in the tenor of an attestation, stating the facts presence of the witnesses.
required by law to be set forth in an attestation clause, the same is (b) If the attestation clause failed to state that. the witnesses signed the will in
a sufficient attestation clause, even if such attestation was in the the presence of the testator.
first person and signed by the testator, if it was likewise signed by (c)If the attestation clause failed to state that the witnesses signed the will in
the three instrumental witnesses. the presence of each other.
Note: As it involves a mental act, there would be no means, therefore, of
Contents of attestation clause: ascertaining by a physical examination of the will whether the witnesses had
 Under the third paragraph of Article 805, such a clause, the indeed signed in the presence of the testator and of each other unless this is
complete lack of which would result in the invalidity of the will, substantially expressed in the attestation
should state:
 (1)the number of the pages used upon which the will is written; (d) If the attestation failed to state the fact that the testator did not personally
 (2) that the testator signed, or expressly caused another to sign, the sign the will, but requested another person to write his name thereon, upon
will and every page thereof in the presence of the attesting his express direction and in his presence.
witnesses; and
 (3) that the attesting witnesses witnessed the signing by the testator  But if the omitted statement may be proven by the mere
of the will and all its pages, and that said witnesses also signed the examination of the document although it does not say anything
will and every page thereof in the presence of the testator and of about it, such omission does not invalidate the will. In other words,
one another. the defects can be remedied by intrinsic evidence supplied by the
will itself.
Effect of omission to state any of the foregoing facts:  For example, if the attestation clause failed to state that all the
 Whether the omission to state everything that the law requires in an pages thereof were signed by the testator and all the witnesses but
attestation clause is fatal to the allowance of the will shall be a mere examination of the signatures shows every page thereof
governed by the following rules: were actually signed, the requirement of the law has been complied
o If the attestation clause is the only evidence of the fact with.
required to be stated therein, the omission to state such  The rule of substantial compliance in Article 809 must be limited to
fact in the attestation clause is fatal. disregarding those defects that can be supplied by an examination
o In which case. oral evidence or proof aliunde is not of the will itself: whether all the pages are consecutively numbered;
admissible to supply the omission. The rule on substantial whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized.
compliance in Article 809 cannot be invoked or relied on
since it presupposes that the defects in the attestation  All these are facts that the will itself can reveal, and defects or even
clause can be cured or supplied by the text of the will or a omissions concerning them in the attestation clause can be safely
consideration of matters apparent therefrom which would disregarded.
provide the data not expressed in the attestation or from
which it may necessarily be gleaned or clearly inferred that Number of Pages:

20
Purpose: examining the totality of the will, it was held that the error in the
 The requirement that the attestation clause shall state the number number of pages of the will as stated in the attestation clause is not
of pages or sheets upon which the will is written has been held to material to invalidate it considering that the subject instrument is
be mandatory as an effective safeguard against the possibility of consecutively lettered with pages A, B, and C which is a sufficient
interpolation or omission of some of the pages of the will to the safeguard from the possibility of an omission of some of the pages.
prejudice of the heirs to whom the property is intended to be The Court explained that the error must have been brought about
bequeathed. by the honest belief that the will is the whole instrument consisting
 Stated otherwise, the purpose of the law in requiring the clause to of three pages inclusive of the attestation clause and the
state the number of pages on which the will is written is to acknowledgment
safeguard against possible interpolation or omission of one or some
of its pages and to prevent any increase or decrease in the pages. Strict Approach
 However, there could have been no substantial compliance with the
Effect of Failure to State Number of Pages: requirements under Article 805 if there is no statement in the
Liberal Approach: attestation clause or anywhere in the will itself as to the number of
 There is substantial compliance with this requirement if the will pages which comprises the will.
states elsewhere in it how many pages it is comprised of,266 as  In this situation, the failure of the attestation clause to state the
was the situation in Singson v. Florentino and Taboada v. Court of number of pages on which the will was written remains a fatal flaw,
Appeals. despite Article 809.
 In Singson, while the attestation clause does not state the number  Such failure equates with the absence of an averment on the part of
of sheets or pages upon which the will is written, however, the last the instrumental witnesses as to how many pages consisted the
part of the body of the will contains a statement that it is composed will, the execution of which they had ostensibly just witnessed and
of eight pages, which circumstance, according to the Court, takes subscribed to.
the case out of the rigid rule of construction and places it within the
realm of similar case where a broad and more liberal view has been Where there is Discrepancy
adopted to prevent the will of the testator from being defeated by  Where the Acknowledgment portion of the subject last will and
purely technical considerations. testament states that the will consists of seven pages including the
 In Taboada, while the attestation clause failed to state the number page on which the ratification and acknowledgment are written but
of pages used in writing the will, it is discernible from the entire will the will actually consists of eight pages including its
that it is really and actually coniposed of only two pages duly signed acknowledgment, the Court refused to apply the rule on substantial
by the testatrix and her instrumental witnesses. The first page compliance under Article 809 because the discrepancy cannot be
which contains the entirety of the testamentary dispositions is explained by mere examination of the will itself but through the
signed by the testatrix at the end or at the bottom while the presentation of evidence aliunde.
instrumental witnesses signed at the left margin. On the other hand,
the other page comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that the will
consists of two pages including said page. Hence, the Court Signing by the Testator, His Designate and Witnesses:
allowed the will to be probated.  Where the attestation clause totally omits the fact that the attesting
 In another case, it was argued that the will is fatally defective for the witnesses signed each and every page of the will in the presence of
reason that its attestation clause states that the will is composed of the testator and of each other, the will is fatally defective.
three pages while in truth and in fact, the will consists of two pages  In such a situation, the defect is not only in the form or language of
only because the attestation is not a part of the notarial will. After the attestation clause but the total absence of a specific element

21
 required by Article 805 to be specifically stated in the attestation
clause of a will. Concept and Purpose:
 Furthermore, the rule on substantial compliance in Article 809 An acknowledgment
cannot be invoked since it presupposes that the defects in the  is the act of one who has executed a deed in going before some
attestation clause can be cured or supplied by the text of the will or competent officer or court and declaring it to be his act or deed. It
a consideration of matters apparent therefrom which would provide involves an extra step undertaken whereby the signatory actually
the data not expressed in the attestation clause or from which it declares to the notary public that the same is his or her own free act
may necessarily be gleaned or clearly inferred that the acts not and deed.
stated in the omitted textual requirements were actually complied  The acknowledgment in a notarial will has a twofold purpose:
within the execution of the will. o (1) to safeguard the testators wishes long after his demise;
 Here, the defect involves a mental act, there would be no means, and
therefore, of ascertaining by a physical examination of the will o (2) to assure that his estate is administered in the manner
whether the witnesses had indeed signed in the presence of the that he intends it to be done.
testator and of each other unless this is substantially expressed in
the attestation. Acknowledgment and Attestation Cannot be Merged:
 The act of the testator and the witnesses seeing reciprocally the  The Court suggested that an attestation clause and an
signing of the will is one which cannot be proven by the mere acknowledgment cannot be merged in one statement, even if the
exhibition of the will unless it is stated in the document. latter embodies what the attestation clause requires.
 But the fact of the testator and the witnesses having signed all the  According to the Court, the fact that the requirements of attestation
sheets of the will may be proven by the mere examination of the and acknowledgment are embodied in two separate provisions of
document, although it does not say anything about this, and if that the Civil Code (Articles 805 and 806, respectively) indicates that the
is the fact, the danger of fraud in this respect, which is what the law law contemplates two distinct acts that serve different purposes.
tries to avoid, does not exist.  An acknowledgment is made by one executing a deed, declaring
 Stated otherwise, failure by the attestation clause to state that the before a competent officer or court that the deed or act is his own.
testator signed every page can be liberally construed, since that  On the other hand, the attestation of a will refers to the act of the
fact can be checked by a visual examination; while a failure by the instrumental witnesses themselves who certify to the execution of
attestation clause to state that the witnesses signed in one the instrument before them and to the manner of its execution.
another's presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance. Applicability of Requirement:
 If the testator did not personally sign the will but requested another  Although Article 806 of the NCC refers to "every will," the
person to write his name thereon, the attestation clause must state requirement therein that the will be acknowledged before a notary
this fact. The omission of this statement in the attestation clause public by the testator and the witnesses does not apply to
invalidates the will. holographic wills because the latter are not required to be
witnessed.
7th Formal Requirement:
The will must be acknowledged before a notary public by the testator Timing of Acknowledgment:
and the witnesses.This formal requirement is one of the indispensable  The NCC does not require that the signing of the testator,
requisites for the validity of a will. witnesses and notary should be accomplished in one single act.
In other words, a notarial will that is not acknowledged before a notary Article 806 of the NCC does not contain words requiring that the
public by the testator and the instrumental witnesses is void and testator and the witnesses should acknowledge the testament on
cannot be accepted for probate. the same day or occasion that it was executed.

22
  Hence, the conflict between the dates appearing on the notarial will own free act or deed
does not invalidate the document, because the law does not even
require that a notarial will be executed and acknowledged on the
same occasion.290

Notary Public as Witness: Absence of Residence Certificate Invalidates Will:

 The notary public before whom the will was acknowledged cannot  The absence of a notation of the residence certificates of the
be considered as the third instrumental witness since he cannot notarial witnesses and the notation of the testator's old residence
acknowledge before himself his having signed the will. certificate in the same acknowledgment makes the
 If the third witness were the notary public, he would have to avow, acknowledgement fatally defective and invalidates the will.
assent or admit his having signed the will in front of himself.
 This cannot be done because he cannot split his personality into Special Requirements:
two so that one will appear before the other to acknowledge his
participation in the making of the will. If Testator is Deaf or Deaf-Mute:

Acknowledgment Outside the Place of commission: Requirements:

 An acknowledgement taken outside the territorial limits of the notary 1. If testator is able to read, he must personally read the will; or
public's jurisdiction is void as if the person taking it were wholly 2. If the testator is unable to read, he must designate two persons to read
without official character. it and communicate to him, in some practicable manner, the contents
 Outside of the place of his commission, a notary public is bereft of thereof.
power to perform any notarial act — he is not a notary public.
 As such, a will which has been acknowledged by the testatrix and  Note that the law does not require that the persons reading and
the instrumental witnesses before a notary public acting outside the communicating the contents of the will be the instrumental
place of his commission is void and cannot be accepted for witnesses.
probate.
If Testator is Blind:
Mere Jurat is Fatally Defective:
 A will which does not contain an acknowledgment, but a mere jurat, Requirement:
is fatally defective, as the express requirement of Article 806 of the  The will shall be read to him twice, once by one of the subscribing
NCC is that the will be "acknowledged " and not merely subscribed witnesses, and another time by the notary before whom the will is
and sworn to. acknowledged
 An acknowledgment is the act of one who has executed a deed in  The rationale behind the requirement of reading the will to the
going before some competent officer and declaring it to be his act testator if he is blind or incapable of reading the will himself (as
or deed, and in the case of a notarial will. that competent officer is when he is illiterate), is to make the provisions thereof known to
the notary public him, so that he may be able to object if they are not in accordance
The acknowledgment A jurat with his wishes.
coerces the testator and the is that part of an affidavit  That the aim of the law is to insure that the dispositions of the will
instrumental witnesses to whereby the notary certifies are properly communicated to and understood by the handicapped
declare before an officer of the that before him/her, the testator, thus making them truly reflective of his desire, is evidenced
law that they had executed and document was subscribed by the requirement that the will should be read to the latter, not only
subscribed to the will as their and sworn to by the executor

23
 once but twice, by two different persons, and that the witnesses (a) If the same was made after the execution of the will and
have to act within the range of his (the testator's) other senses without the consent of the testator, such insertion is
 The rule in Article 808 of the NCC applies not only to blind considered as not written;
testators but also to those who, for one reason or another, are (b) If the same was made after the execution of the will but with
incapable of reading their wills, either because of poor or defective the consent of the testator, the will remains valid but the
eye sight or because of illiteracy. insertion is void
(c) If the same was made after the execution of the will but
If there is no compliance with Article 808, the will is void. validated by the testator by his signature thereon, then the
 However, in a case where it was the lawyer who drafted the will, insertion becomes part of the will, and the entire will becomes
who read the same aloud to the testator and read them only once void:
but it was read aloud in the presence of the testator, the three (d) If the insertion is made contemporaneous to the execution of
instrumental witnesses and the notary public and the testator the will, then the will is void.
subsequently affirmed that the contents thereof corresponded with
his instructions, the Court held that the requirement of the will has Must be Dated:
been sufficiently complied with.  Otherwise, the will is void.
 The facts required in Articles 807 and 808 are not required to be  As a rule, the "date" in a holographic will should include the day,
stated in the attestation clause. The same may be proved by month, and year of its execution. However, when there is no
extrinsic evidence. appearance of fraud, bad faith, undue influence and pressure and
the authenticity of the will is established and the only issue is
Special Formalities in Holographic Wills whether or not the date "FEB./61" appearing on the holographic will
is a valid compliance with Article 810 of the NCC, probate of the will
Concept and Requisites: should be allowed under the principle of substantial compliance.
 The law does not specify the particular location where the date
Concept: should be placed in the will.
A holographic will  The only requirements are that the date be in the will itself and
 as provided under Article 810 of the Civil Code,must be entirely executed in the hand of the testator.
written, dated, and signed by the hand of the testator himself.  The law does not require that the will be completely executed on a
 It is subject to no other form, and may be made in o/out of the single day, at one time, and in the same ink, because unity of the
Philippines, and need not be witnessed. act is not a requisite for this form of wills.

Requisites: Must be Signed by the Hand of Testator Himself:

(1) It must be entirely handwritten by the testator;  The law does not require the simple writing of the name and
(2) it is dated; and surname of the testator but the "signing by the hand of the testator."
(3) it is signed by the hand of the testator himself.  In other words, it is the name written by the testator in his usual,
customary and habitual manner.
Must be Entirely Handwritten by Testator:  Hence, signing by means of thumbprint appears to be not allowed
 Otherwise, the will is void. because the law requires that the will be "signed by the hand of the
 If words written by another person were inserted among the words testator."
written by the testator, the following shall be the consequences:  In a holographic will, the signature must be at the end of the will.
 This can be inferred from Article 812 of the NCC by the reference to
dispositions "written below his signature"

24
  This phrase implies that the signature is at the end of the will, and But a photostatic copy or xerox copy of the holographic will may be allowed
any disposition below it must further be signed and dated. because comparison can be made with the standard writings of the testator.

No witnesses required In Cases Where there are Several Additional Dispositions:

 During the execution of the holographic will, no witnesses are  Dispositions of the testator written below his signature must be
necessary and required. dated and signed by him to make them valid as testamentary
 This is clear from Art 810 which says that it need not be witnesses. dispositions.

Probate of Holographic Wills: (a) If one disposition below the signature of the testator is not dated,
 Rules: In the post mortem probate of holographic wills, the following even if signed, that particular disposition will be void, without
rules are to be observed as to the number of witnesses to be affecting the validity of the others or of the will itself.
presented: (b) The dispositions written below the signature of the testator are
(i) If the will is not contested, it shall be necessary that at least considered as independent of the will itself; hence, they must be
one witness who knows the handwriting and signature of the signed and dated by the testator.
testator explicitly declares that the will and the signature are in
the handwriting of the testator.  When a number of dispositions appearing in a holographic will are
(ii) If the will is contested, at least three of such witnesses shall be signed without being dated, and the last disposition has a signature
required. and date, such date validates the dispositions preceding it,
(iii) In the absence of any competent witness and if the court whatever be the time of prior dispositions.
deems it necessary, expert testimony may be resorted to.
Rule in Case of Insertion. Cancellation. Erasure or Alteration
Reminders:  In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
(a) In an earlier case, it was held that even if the genuineness of the signature.
holographic will is contested. Article 811 of the NCC cannot be interpreted  Full signature refers to the testator's habitual, usual, and
as to require the compulsory presentation of three witnesses to identify the customary signature.
handwriting of the testator, under penalty of having the probate denied.  If not authenticated with the testator's full signature, it is considered
as not made, but the will is not invalidated.
In a later case,however, the Court ruled that the requirement of at least three
witnesses in case the will is contested is mandatory. The Court explained Kalaw v. Relova
that the possibility of a false document being adjudged as the will of the  the Court held that when a number of erasures, corrections, and
testator cannot be eliminated, which is why if the holographic will is interlineations made by the testator in a holographic will have not
contested, the law requires three witnesses to declare that the will was in the been noted under his signature, the will is not thereby invalidated
handwriting of the deceased. as a whole, but at most only as respects the particular words
erased, corrected or interlined.
(b) The execution and the contents of a lost or destroyed holographic will  However, where the testator himself crossed out the name of the
may not be proved by the bare testimony of witnesses who have seen or heir named, and substituted the name of another. without
read such will. The will itself must be presented; otherwise, it shall produce authentication, it was held that this did not result in making the
no effect. person whose name was crossed as heir.

Laws Governing Formalities of Wills

25
  Note that what the law expressly prohibits is the making of joint wills
When Executed by Filipinos either for the testators' reciprocal benefit or for the benefit of a third
person.
 when a Filipino is in a foreign country, he is authorized to make a  Hence, the separate wills of the spouses which contain essentially
will in any of the forms established by the law of the country in the same provisions and pertain to property which in all probability
which he may be. are conjugal in nature may be probated jointly
 This follows the rule in Article 17 of the NCC that "forms and
solemnities of contracts, wills and other public instruments shall be With respect to mutual wills, if the same are embodied in separate
governed by the laws of the country in which they are executed." instruments, they are valid, unless such provisions amount to a disposicion
 Being valid, such will may be probated in the Philippines. captatoria, e.g., a "disposition made upon the condition that the heir shall
 A joint will executed by Filipinos in a foreign country shall not be make some provision in his will in favor of the testator or of any other
valid in the Philippines, even though authorized by the laws of the person," which is declared by law to be void.
country where they may have been executed

When Executed by Aliens:

The will of an alien who is abroad produces effect in the Philippines if:

(a) Made with the formalities prescribed by the law of the place in
which he resides; or
(b) According to the formalities observed in his country; or
(c) In conformity with the formalities prescribed in the Philippines.335

The will of an alien made in the Philippines shall produce effect in the
Philippines if:
(a) executed in accordance with the law of the country of which he is
a citizen; and
(b) which might be proved and allowed by the law of his own country.

Joint and Mutual Wills

A joint will Mutual wills
is one where the same instrument are separate wills of two persons,
is made the will of two or more which are reciprocal in their
persons and is jointly signed by provisions.
them.

Rule in Case of Joint and Mutual Wills:

 Joint wills executed by Filipinos are void whether executed in the
Philippines or abroad and regardless of the fact that the same is for
their reciprocal benefit or for the benefit of third persons.

26
  Under the law, there is no mandatory requirement that the witness
[Chapter 2: Testamentary Succession] testify initially or at any time during the trial as to his good standing
[Section 1: Wills] in the community, his reputation for trustworthiness and
[Subsection 4: Witnesses to Wills] reliableness, his honesty and uprightness in order that his
(Arts. 820 - 824, NCC) testimony may be believed and accepted by the trial court.
 It is enough that the qualifications enumerated in Article 820 of the
Witnesses to Wills NCC are complied with, such that the soundness of his mind can be
shown by or deduced from his answers to the questions
Necessity For Witnesses: propounded to him, that his age (18 years or more) is shown from
 According to Article 810 of the NCC, a holographic need not be his appearance, testimony, or competently proved otherwise, as
witnessed. well as the fact that he is not blind, deaf or dumb and that he is able
 Hence, subsection 4 of Chapter 2 applies only to ordinary or to read and write to the satisfaction of the Court, and that he has
attested/notarial wills. none of the disqualifications under Article 821 of the NCC
 In the strict sense, the competency of a person to be an
Qualifications of Witnesses: instrumental witness to a will is determined by the statute — that is
Articles 820 and 821 of the NCC, whereas his credibility depends
Qualifications: For a witness in notarial attested wills to be qualified, he/she on the appreciation of his testimony and arises from the belief and
must comply with the following: conclusion of the Court that said witness is telling the truth.
1. He must be of sound mind;  In other words, the instrumental witnesses must be competent and
2. He must be at least 18 years of age; their testimonies must be credible before the court allows the
3. He must not be blind, deaf or dumb; probate of the will they have attested.
4. He must be able to read and write;
5. He must be domiciled in the Philippines; Effect if Witness Receives by Wav of Legacy or Devise:
6. He must not have been convicted of falsification of a document,  Rule: If a person attests to the execution of a will, to whom or to
perjury or false testimony. whose spouse, or parent or child, a devise or legacy is given by
such will, such devise or legacy shall, so far only as concerns such
 Note: The requirement that the witnesses must be domiciled in the person, or spouse, or parent, or child of such person, or any one
Philippines applies only if a Filipino citizen executes his will in the claiming under such person or spouse, or parent, or child, be void.
Philippines.
 If he executes the will in a foreign country, the law allows him to Exception:
follow the formalities of the place of execution  Unless there are three other competent witnesses to such will.
 In such a situation, the witnesses need not be domiciled in the
Philippines. Effects of Violation of Article 823 of the NCC

When Determined: The will is still valid but the legacy or devise is void;
 It is at the time of the attestation of the will that the competency of 1. The competency of the witness involved is not affected; only his
the attesting witnesses is to be determined. entitlement to the legacy or devise;
 If he is competent at that time, his subsequent incompetency shall 2. Article 823 is not a disqualification to be a witness but a
not prevent the allowance of the will.346 disqualification to inherit: and
3. The disqualification is not limited to the devisee or legatee but
Competency vs. Credibility of Witnesses: extends to one succeeding by will.

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 [Chapter 2: Testamentary Succession]
[Section 1: Wills] Reminder: The foregoing rule applies only to attested wills because of
[Subsection 5: Codicils and Incorporation By Reference] mention of "witnesses" in paragraph 4 of Article 827 of the NCC.
(Arts. 825-827, NCC)

Codicils and Subsequent Wills

Codicil
 is a subsequent instrument which explains the original will, or alters
or adds to it.
 As defined in the Code, a codicil is 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.

 If the later instrument makes dispositions independent of those in

the original will, without explaining or modifying such original will,
then it is a new will, not a codicil.

Forms Required for Codicil

Rule: In order that a codicil may be effective, it shall be executed as in the
case of a will.
 If the will to which a codicil refer is a holographic will, the law does
not require that the codicil be also in the form of a holographic will.
In such a situation, the codicil may either be in the form of a
holographic will or attested will.
 The same goes for a codicil which refers to an attested will.355

Incorporation by Reference
Rule: If a will "incorporates by reference" any document or paper, the same
shall not be considered part of the will unless the following requisites are
present:
1. the document or paper must exist at the time of the execution of the
will;
2. the document or paper must be clearly described and identified in
the will, stating among others the number of pages
3. the document or paper must be identified by clear and satisfactory
proof as the document or paper referred to in the will; and
4. the document or paper must be signed by the testator and the
witnesses on each and every page, except in case of voluminous
books of account or inventories.356

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 [Chapter 2: Testamentary Succession] If Revocation is Done in the Philippines:
[Section 1: Wills]  The revocation must be done in accordance with Philippine laws,
[Subsection 6: Revocation of Wills and Testamentary Dispositions] whether the testator be a domicile of the Philippines or not.
(Arts. 828-834, NCC)
Modes of Revoking Wills:
Revocation of Wills (i) By implication of law;
Rule on Revocability of Wills: (ii) By subsequent will, codicil or subsequent instrument; or
 A will may be revoked by the testator at any time before his death. (iii) By physical destruction.
 In other words, a will is essentially ambulatory; at any time prior to
the testator's death, it may be changed or revoked. Revocation by Implication of Law:
 Any waiver or restriction of the right to revoke the will is void, but it
shall not affect the validity of the will itself containing such waiver or How it takes place:
restriction.  There is revocation by implication of law when certain acts or
 There can be no restriction that may be made on the testator's events take place subsequent to the making of a will, which nullify
absolute freedom to revoke his will and codicil previously made. or render inoperative either the will itself or some testamentary
 This rule holds true even if such previous will had already been disposition therein.
probated.
 For in the first place, probate only authenticates the will and does Instances when Revocation by Implication of Law Takes Place:
not pass 1) Upon the termination of the subsequent marriage in Article 41 of the
 upon the efficacy of the dispositions therein. FC through the filing of the affidavit of reappearance, the spouse
 And secondly, the rights to the succession are transmitted only from who contracted the marriage in bad faith shall be disqualified to
the moment of the death of the decedent.361 inherit from the innocent spouse by testate and intestate
succession.365 Hence, any testamentary disposition in the will of
Laws Governing Validity of Revocation: the innocent spouse in favor of the guilty spouse shall be revoked
If Revocation is Done Outside the Philippines: by implication of law.
2) If both spouses of the subsequent marriage referred to in Article 41
of the Family Code acted in bad faith, testamentary dispositions by
By a person not domiciled in the By a domicile of the Philippines,
Philippines, the revocation is one in favor of the other are revoked by operation of law.
valid when it is done: 3) In case of annulment, the spouse who contracted the marriage in
(i) According to the law of the the revocation must be done in bad faith shall be disqualified to inherit from the innocent spouse by
place where the will was made: accordance with Philippine laws. testate and intestate succession. Hence, any testamentary
or disposition in the will of the innocent spouse in favor of the guilty
(ii) According to the law of the spouse shall be revoked by implication of law.
place in which the testator had 4) Upon issuance of the decree of legal separation, provisions in favor
domicile at the time of of the offending spouse made in the will of the innocent spouse
revocation. shall be revoked by operation of law.
(iii) According to the law of the 5) In case of preterition of compulsory heirs in the direct line, whether
place in which the testator had living at the time of the execution of the will or born after the death
domicile at the time of of the testator. In such a case, the preterition shall annul the
revocation.
institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious.

29
 6) When the heir, devisee or legatee commits any of the acts of cannot produce the effect of annulling the previous will, inasmuch
unworthiness which by express provision of law will incapacitate as said revocatory clause is void
him to succeed. In such a case, any testamentary disposition in  This is known as the "doctrine of dependent relative revocation."
favor of such heir, devisee or legatee is revoked.  Under this doctrine, the failure of the new testamentary disposition,
7) When in the testator's will there is a legacy of a credit against a upon whose validity the revocation depends, is equivalent to the
third person or of the remission of a debt of the legatee, and non-fulfillment of a suspensive condition, and hence prevents the
subsequently, after the execution of the will, the testator brings an revocation of the original will.
action against the debtor for the payment of his debt. In such a  But a mere intent to make at some time a will in place of that
case, the legacy is revoked destroyed will not rendered the destruction conditional. It must
8) When the testator transforms the thing bequeathed in such a appear that the revocation is dependent upon the valid execution of
manner that it does not retain either the form or denomination it a new will
had, or when he alienates by any title or for any cause the thing
bequeathed or any part thereof; or when the thing bequeathed is Exception to Doctrine of Dependent Relative Revocation:
totally lost during the testator's lifetime or after his death without the  The revocation made in a subsequent will shall take effect even if
heir's fault. In such cases, the legacy is revoked. the new will should become inoperative, if the reason thereof be the
following:
Revocation by Subsequent Instrument:  (1) incapacity of the heirs, devisees or legatees designated therein;
How it Takes Place: or
 A will may be revoked by some will, codicil, or other writing  (2) renunciation or repudiation
executed as provided in case of wills.
False or Illegal Cause:
Manner of Revocation: When the testator declares in a later will that he revokes a former will
The revocation may be done either expressly or impliedly. because of a certain state of facts or cause which turns out to be false or
illegal, the revocation is null and void.
Express Revocation: In other words, revocation of a will based on a false cause or illegal cause is
 Revocation is express when in a subsequent instrument executed null and void.
in the form of a will there is a revocatory clause expressly revoking For this rule to apply, it is necessary that the fact or cause, with regard to
the will or part thereof. which the mistake was made, must api)ear upon the face of the instrument.
Parol evidence is not competent to prove that a revocation, unconditional on
Requirement: its face, was induced by a false assumption of fact or law.
 A subsequent will containing a clause revoking a previous will
should possess all the requisites of a will, whether it be an ordinary Implied Revocation:
or a holographic will, and should be probated, in order that the  Revocation is implied when the provisions of a subsequent will or
revocatory clause thereof may produce the effect of revoking the codicil are partially or absolutely inconsistent with those of the
previous will.374 previous will.

"Doctrine of Dependent Relative Revocation": Rule on Implied Revocation:

 A subsequent will, containing a clause revoking a previous will,  Subsequent wills which do not revoke the previous ones in an
having been disallowed, for the reason that it was not executed in express manner, annul only such dispositions in the prior wills as
conformity with the provisions of the law as to the making of wills, are inconsistent with or contrary to those contained in the later wills.

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  When several wills wholly inconsistent, or containing express  It is not imperative that the physical destruction be done by the
revocatory clauses, are offered for probate, parol evidence is testator himself, for the same may be performed by another person.
competent to show which was in fact last executed, whether they In order, however, for the revocation to be effective, it is necessary
are dated or not. But if of the same date, or not dated, and there is that:
nothing to show which was last, all fail for uncertainty. o (1) the document destroyed was in fact the will of the
 Whether the revocation is made expressly or impliedly, such deceased;
revocation does not affect the recognition of an illegitimate child in  (2) the over act was at the decedent's express
the will that has been revoked direction; and
 The reason for this is because such recognition is not a  (3) that the same was done in the presence of
testamentary disposition and the same takes effect immediately said decedent.
upon the execution of the will and not upon the death of the
testator.  In case of unauthorized destruction, there is no revocation, and
parol evidence is competent to prove the contents or provisions of
Revocation by Physical Destruction: the will.
 However, the provisions of Rule 77 of the Rules of Court
Ways of physically destroying wills: contemplate of probate of lost or destroyed attested/notarial wills
(1) Burning; only. With respect to a holographic will, the same cannot be
(2) Tearing; probated in case it has been lost or destroyed and there was no
(3) Canceling; or copy left, even if the loss or destruction was unauthorized.
(4) Obliterating  However, if there is a photostatic or xerox copy left, then the will
may still be probated.
Requisites for validity of revocation:
(i) Testator must, at the time of performing it, be in possession of his Presumption of Revocation:
faculties and capable of making wills;  Where a will cannot be found and it was shown to have been in the
(ii) The destruction must be with intent to revoke or coupled with animus possession of the testator, when last seen, the presumption is, in
revocandi; case of absence of other competent evidence, that the same was
(iii) There must be evidence of the overt act (of burning, tearing, cancelled or destroyed
canceling or obliteration); and  The same presumption arises where it is shown that the testator
(iv) The revocation must have been a completed act. had ready access to the will and it cannot be found after his death.
 It will not be presumed that such will has been destroyed by any
Reminders: other person without the knowledge or authority of the testator.
 The physical act of destruction of a will does not per se constitute  The force of the presumption of cancellation or revocation by the
an effective revocation, unless the destruction is coupled with testator, while varying greatly, being weak or strong according to
animus revocandi on the part of the testator. the circumstances, is never conclusive, but may be overcome by
 However, animus revocandi alone would not suffice because it is proof that the will was not destroyed by the testator with intent to
only one of the necessary elements for the effective revocation of a revoke it.
last will and testament. The intention to revoke must be  However, if it has been shown that the will was not in the hands of
accompanied by the overt physical act of burning, tearing, the testator, the presumption that it was destroyed by the testator or
obliterating, or cancelling the will carried out by the testator or by by his direction does not arise.
another person in his presence and under his express direction.

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 [Chapter 2: Testamentary Succession] Rule on revival of wills:
[Section 1: Wills]  If a previous will was revoked expressly by a second will, the
[Subsection 7: Republication and revocation of the second will does not revive the first will.
Revival of Wills]  Hence, the previous will can only be revived by way of republishing
(Arts. 835 - 837, NCC) it either:
o (1) by reproducing the f - contents of a previous will (to be
Republication and Revival of Wills republished) in a subsequent will; or
o (2) by execution of a codicil referring to the previous to be
Republication of Wills: republished.

Concept: If a previous will was revoked impliedly, the rule stated in Article 837 of the
 Republication is the re-execution or re-establishment bv a testator NCC does not apply.
of a will which is void or a will which the testator had once revoked. Thus, where the second will impliedly revokes the first will;
 It requires a positive act on the part of the testator. the first will is automatically revived by the revocation of the second will.

Two Ways of Republishing Wills:

(1) By reproducing the contents of a previous will (to be republished) in
a subsequent will;
(2) By execution of a codicil referring to the previous will to be
republished.

 The execution of a codicil referring to a previous will has the effect

of republishing the will as modified by the codicil.

Rule if Previous Will is Void as to Form:

 If the previous will is void as to its form, it can only be republished
by reproducing the provisions thereof in a subsequent will.
 There is no other way.

Other Reasons for Invalidity:

If previous will is void because of other reasons or had been revoked, it may
be republished either by:
(1) By reproducing the contents thereof in a subsequent will; or
(2) By execution of a codicil referring to the previous will.398

Revival of Wills:
 Revival of a will is the process of renewing or restoring the
operative force of a will which had once been revoked by the
testator. It takes place by operation of law.

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 [Chapter 2: Testamentary Succession] the collusion of some of the heirs who might agree to the partition of
[Section 1: Wills] the estate among themselves to the exclusion of others.
[Subsection 8: Allowance and  As such, a petition for probate is not subject to the statute of
Disallowance of Wills] limitations nor may it be prevented by the application of the
(Arts. 838-839, NCC) principle of estoppel.
 In one case, the heirs of the deceased agreed to partition the
Probate of Wills estate which was approved by the court in estate proceedings but
three years after, a document purporting to be the decedent's last
Meaning of Probate will and testament was discovered. It was held therein that the
 To probate a will means to prove before some officer or tribunal, probate of the will is not barred by the intestate settlement of estate
vested by law with authority for that purpose, that the instrument proceedings.
offered to be proved is the last will and testament of the deceased  But once probated, an action for the "annulment" of a will may be
person whose testamentary act it is alleged to be, and that it has barred by res judicata and prescription.
been executed, attested and published as required by law, and that
the testator was of sound and disposing mind. It is a proceeding to Issues Addressed in Probate Proceedings:
establish the validity of the will. It should be noted that probate proceedings deals generally with the extrinsic
validity of the will sought to be probated, particularly on the following
Probate of Wills is Mandatory: aspects:
 A will is essentially ambulatory; at anytime prior to the testator's (1) whether the will submitted is indeed, the decedents last will and
death, it may be changed or revoked; and until admitted to probate, testament;
it has no effect whatever and no right can be claimed thereunder, (2) compliance with the prescribed formalities for the execution of wills;
the law being quite explicit: "No will shall pass either real or (3) the testamentary capacity of the testator; and
personal property unless it is proved and allowed in accordance (4) the due execution of the last will and testament.
with the Rules of Court.
 Before any will can have force or validity it must be probated. Under the Civil Code, due execution includes a determination of whether
 The presentation of the will for probate is mandatory and is a the testator was of sound and disposing mind at the time of its execution,
matter of public policy that he had freely executed the will and was not acting under duress, fraud,
 In testate succession, there can be no valid partition among the menace
heirs until after the will has been probated.
 The heirs may not disregard the provisions of the will unless those or undue influence and that the will is genuine and not a forgery, that he was
provisions are contrary to law. of the proper testamentary age and that he is a person not expressly
 Neither may they do away with the presentation of the will to the prohibited by law from making a will.
court for probate, because such suppression of the will is contrary
to law and public policy. Probate Generally Deals with Extrinsic Validity:
 The law enjoins the probate of the will and public policy requires it, General Rule:
because unless the will is probated and notice thereof given to the  As a general rule, courts in probate proceedings are limited to pass
whole world, the right of a Person to dispose of his property by will only upon the extrinsic validity of the will sought to be probated.
may be rendered nugatory.  Thus, the court merely inquires on its due execution, whether or
 Absent legatees and devisees, or such of them as may have no not it complies with the formalities prescribed by law, and the
knowledge of the will, could be cheated of their inheritance through testamentary capacity of the testator.

33
  It does not determine nor even by implication prejudge the validity issue, as when the issue of preterition of compulsory heirs in the direct line is
or efficacy of the will's provisions raised, especially so when the will does not provide for legacies or devises.
 The intrinsic validity is not considered since the consideration In such situation, preterition shall result in totally abrogating the will.
thereof usually comes only after the will has been proved and
allowed. (d) When the instrument presented for probate is denominated as a donation
mortis causa, the issue of whether said instrument is a donation mortis
Exceptions: causa or in fact a donation inter vivos, may be passed upon by the probate
 However, the rule on probate is not inflexible and absolute. court; otherwise, the probate proceedings may become a useless ceremony
 Under exceptional circumstances, the probate court is not if it turns out that the instrument is indeed a donation inter uiuos.
powerless to do what the situation constrains it to do and pass upon
certain provisions of the will. (e) Where the parties agree that the intrinsic validity be first determined, the
 Though the law and jurisprudence are clear that only questions probate court may also do so
about the extrinsic validity of the will may be entertained by the
probate court, the Court had, on more than one occasion, passed Effect of Probate or Allowance of Wills:
upon the intrinsic validity of a will even before it had been  The probate of a will is conclusive as to its due execution and
authenticated, as follows: extrinsic validity.
 a) As when the defect of the will is apparent on its face and the  If no appeal is taken in due time from a judgment or order of the
probate of the will may become a useless ceremony if it is trial court, the same attains finality by mere lapse of time.
intrinsically invalid.  Thus, the order allowing the will became final and the question
 In the Nepomuceno case, for example, the very tenor of the will determined by the court in such order can no longer be raised
invalidates the legacy because the testator admitted in his will that anew, either in the same proceedings or in a different motion.
he was disposing of the properties to a person with whom he had  The matters of due execution of the will and the capacity of the
been living in concubinage. testator acquired the character of res judicata and cannot again be
 This case is different from Reyes v. CA. brought into question, all juridical questions in connection therewith
 In the latter case, the testator stated in his will that he was being for once and forever closed.
bequeathing some of his personal and real properties to his wife,  Such final order makes the will conclusive against the whole world
Asuncion Oning Reyes and there was never an open admission of as to its extrinsic validity and due execution.
any illicit relationship.  That means that the testator was of sound and disposing mind at
 Hence, the Court ruled that the propriety of the institiition of Oning the time when he executed the will and was not acting under
Reyes as one of the devisees/legatees could not be looked into duress, menace, fraud, or undue influence; that the will was signed
during the probate proceedings as the same already involved by him in the presence of the required number of witnesses, and
inquiry on the will's intrinsic validity and which need not be inquired that the will is genuine and is not a forgery.
upon by the probate court.  Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the forgery
(b) When the provisions are unusual and of dubious legality, the Court may of the will.
pass upon the will's intrinsic validity even before its formal validity had been  After the finality of the allowance of a will, the issue as to the
established because the probate of a will might become an idle ceremony if voluntariness of its execution cannot be raised anymore.
on its face it appears to be intrinsically void.
 The intrinsic validity is another matter and questions regarding the
(c) Where practical considerations demand that the intrinsic validity of the same may still be raised even after the will has been authenticated.
will be passed upon, even before it is probated, the court should meet the

34
  Thus, it does not necessarily follow that an extrinsically valid last
will and testament is always intrinsically valid. Grounds for Disallowance of Wills:
 Even if the will was validly executed, if the testator provides for (1) Failure to comply with the formalities required by law;
dispositions that deprives or impairs the lawful heirs of their legitime (2) Testator was insane or otherwise mentally incapable of making a will at
or rightful inheritance according to the laws on succession, the the time of its execution;
unlawful provisions/dispositions thereof cannot be given effect. (3) Will was executed through force or undue duress, or the influence of
 fear or threats;
(4) Will was procured by undue and improper pressure and influence on
 Before there could be testate distribution, the will must pass the the part of the beneficiary or of some other person;
scrutinizing test and safeguards provided by law considering that (5) Signature of testator was procured by fraud;
the deceased testator is no longer available to prove the (6) Testator acted by mistake or did not intend that the instrument he
voluntariness of his actions, aside from the fact that the transfer of signed should be his will at the time of affixing his signature thereto;
the estate is usually onerous in nature and that no one is presumed (7) Testator was below 18 years of age at the time of the execution of the
to give -Nemopraesumiturdonare. will.

 No intestate distribution of the estate can be done until and unless Effect if Grounds For Disallowance is Proved:
the will had failed to pass both its extrinsic and intrinsic validity.  If any of the above grounds for disallowance is proved, the will shall
be set aside as void.
 If the will is extrinsically void, the rules of intestacy apply regardless  Even if the ground for disallowance is that the testator was not of
of the intrinsic validity thereof. If it is extrinsically valid, the next test sound mind or below 18 at the time of the execution of the will. the
is to determine its intrinsic validity that is whether the provisions of will shall be void and not merely voidable.
the will are valid according to the laws of succession. If the will is
extrinsically valid but the intrinsic provisions thereof are void, the Case of Natural obligation:
rules of intestacy also apply.  When a will is declared void because it has not been executed in
accordance with the formalities required by law, but one of the
Ante Mortem and Post Mortem Probate: intestate heirs, after the settlement of the debts of the deceased,
Ante mortem Post mortem probate pays a legacy in compliance with a clause in the defective will, the
probate is that which is had during- is that which is had after the death payment is effective and irrevocable
the lifetime of the testator. of the testator.
Personality to Intervene in Probate Proceedings:
In order that a person may be allowed to intervene in a probate proceeding
 After a will has been probated during the lifetime of the testator, it he must have an interest in the estate, or in the will, or in the property to be
does not necessarily mean that he cannot alter or revoke the same affected by it either as executor or as a claimant of the estate and an
before his death. interested party is one who would be benefited
 Note that a will is essentially ambulatory.
 For in the first place, probate only authenticates the will and does by the estate such as an heir or one who has a claim against the estate like
not pass upon the efficacy of the dispositions therein. a creditor.
 And secondly, the rights to the succession are transmitted only from
the moment of the death of the decedent.

35
Probate of Wills of Foreigners:
 Our laws do not prohibit the probate of wills executed by foreigners
abroad although the same have not as yet been probated and
allowed in the countries of their execution.
 A foreign will can be given legal effects in our jurisdiction. Article
816 of the Civil Code states that the will of an alien who is abroad
produces effect in the Philippines if made in accordance with the
formalities prescribed by the law of the place where he resides, or
according to the formalities observed in his country.

36