Professional Documents
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BASIS OF SUCCESSION
Why do we have succession?
1. Natural Law because it is in the nature of man to
provide for those he will leave behind. Although for some
people, they dont think its their obligation; but usually it is
within human nature to really provide.
2. Socioeconomic reason because what happens if you
have several properties, and after you die your properties will
die with you? So nobody will benefit. For the property not to
remain idle, to benefit from the property, we have the law on
succession, to prevent the property from becoming idle.
3. Attribute of ownership What are the attributes of
ownership? If you are the owner, what are you rights? To use,
dispose. So dispositionwe have what we call disposition inter
vivos or disposition during the lifetime of the owner, and
disposition mortis causa or dispositions which become
effective upon death.
So as owner of the property, your right to dispose should not
be limited to a disposition inter vivos or during your lifetime. It
is part of your ownership, also to control how your properties
will be disposed of after your death. So that is also one
attribute of ownership.
These are the bases of succession.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
If you still remember, in your property, we also discussed
donation inter vivos. I dont think we discussed donation
mortis causa.
Donation inter vivos
synonymous to succession
Synonymous to succession
inter vivos
mortis causa
Art. 728. Donations which are to take effect upon the death
of the donor partake of the nature of testamentary provisions,
and shall be governed by the rules established in the Title on
Succession.
Why do we have to know if this is donation inter vivos and
this one is succession or donation mortis causa, it will take
effect upon death? Why is there a need to know the
distinction?
So when you say formalities, are you saying that the two have
different formalities?
For example it is donation inter vivos, what formalities should
be complied with?
If you still remember, what are the formalities of donations?
You should say that, if it is donation inter vivos, it should
follow the formalities of donations.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
one indication.
distinguishing
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
(6) That in case of doubt, the conveyance should be
deemed donation inter vivos rather than mortis causa,
in order to avoid uncertainty as to the ownership of the
property subject of the deed.
So in case of doubt, we resolve the doubt in favor of inter
vivos. Because, if it is a donation inter vivos, the ownership
will now be certain. It is now with the donee. Unlike, in a
mortis causa disposition, were not certain because it may still
be revoked by the donor, testator or he may still give the
property to some other person. So wala pa gyud ma-settle ang
issue of ownership if it is mortis causa.
In case of doubt again, the doubt has to be resolved in favor
of donation inter vivos.
Now how about the fact that Rodriguez, after the deed of
donation was executed, she sold the same property to another
person? Would it not be an indication that her intention was
really just a transfer mortis causa, revocable at any time?
The Supreme Court said that the petitioner cannot even
capitalize on Rodrigos post-donation transfer of the
property as proof of her retention of ownership
because if such were the barometer in interpreting
deeds of donation,not only will great legal uncertainty
be visited on gratuitous dispositions, this will give
license to rogue property owners to set at naught
perfected transfers of titles, which, while founded on
liberality, is a valid mode of passing ownership.
So that should not be used as a barometer. You should not be
tolerated na you already donated the property then you sell
the property to another person even if that was a real
donation. It was frowned upon by the Supreme Court in this
particular case.
you created that. You are the original owner of that. Thats
the original mode.
When you say (2) derivative mode, there is already an
owner, but you transfer the ownership. You acquire the
ownership from another owner. For example, succession is
one. There is the original owner; then by succession, that
ownership is transferred to the successor. Succession is a
derivative mode of acquiring ownership.
So let us go to Article 775.
This merely defines what the term decedent is.
Art. 775. In this Title, "decedent" is the general term applied
to the person whose property is transmitted through
succession, whether or not he left a will. If he left a will, he is
also called the testator.
Decedent is the general term used to describe the person who
died, whether he left the will or not. But if he left a will, we
have a technical term for that: testator. If you termed a
person as testator even if he died without a will, that would
not be correct. He is a decedent, not a testator.
Art. 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished by his
death
This defines what is inheritance. When you say inheritance,
that is the one mentioned. All the property, rights and
obligations of a personthat would be the inheritance.
Succession it is NOT the same as inheritance. When you
say succession, again under Article 774, it is the mode of
acquisition.
Now let us go to the inheritance. We have the properties,
rights and obligation of a person which are not extinguished
by his death.
So we mentioned properties, rights and obligations. These can
be transmitted by succession. So if a person dies, his
properties, rights and obligations can also be transmitted to
his heirs.
PROPERTY
When you say property that can be transmitted by succession,
what kind of property? Real and personal property. Real
property or immovables; personal or movables.
Now we also have intangible properties. What do you
understand by intangible properties? When you have a
business and it has a good reputation what do you call that?
Good will. When you have an invention and you dont want
some other people to copy it, what do you do with it? Patent.
That is also intangible. If you have a novel, and of course to
prevent plagiarism what do you do with it? You copyright it. If
you have a business and you want other people to use the
name of your business, what do they do? Franchise. These
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
are examples of intangibles. They are also properties, and
they can also be subject of succession.
Thats the only way under our present laws by which an organ
of the human body can be transmitted by Succession in what
manner. Under the Organ Donation Act, certain organs of the
human body may be given or transferred either by donation
or by a will, a legacy. We will discuss legacy, a will because
we are talking of Succession.
For
therapy
or
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
during the testator's lifetime is not necessary to make the
legacy valid.
(c)
The legacy may be made to a specified legatee or
without specifying a legatee. If the legacy is made to a
specified legatee who is not available at the time and place of
the testator's death, the attending physician or surgeon, in the
absence of any expressed indication that the testator desired
otherwise, may accept the legacy as legatee. If the legacy
does not specify a legatee, the legacy may be accepted by the
attending physician or surgeon as legatee upon or following
the testator's death. The physician who becomes a legatee
under this subsection shall not participate in the procedures
for removing or transplanting a part or parts of the body of
the decedent.
(d)
The testator may designate in his will, card or other
document, the surgeon or physician who will carry out the
appropriate procedures. In the absence of a designation, or if
the designee is not available, the legatee or other persons
authorized to accept the legacy may authorize any surgeon or
physician for the purpose.
Again, you can give it by a will, by donation or by legacy.
When you say legacy, it is in a will, a last will and testament.
Now we have the basic rule in Succession when we go to
probate that if there is a will, it has to be probated. What do
we understand by probate?
Probate is a proceeding intended to determine the validity of
the will. It doesnt follow ha once there is a will na nabilin,
okay na to siya, so ihatag na sa iyaha diretso ang property,
NO ha.
You have to file a petition in court for the probate of the will.
And then the court will examine the will. And then the court
will determine if the testator was qualified at the time he
made the will and whether the will is valid as to form, and
whether the will was really executed by him. Only when the
court is satisfied that all those requisites are complied with,
then the will is declared admitted to probate. And then the
properties mentioned in the will can now be distributed in
accordance with the will. Probate proceedings, taking into
account the congestion of our courts, swerte naka na
makahuman kag probate kana ha kung wala mag-oppose
one year. Swerte na na siya. Kay kung nay mag-oppose,
swerte naka kung mahuman mog 10 years. Kana siya ang
nature sa probate proceeding.
Now in the case of legacy of an organ, the law says without
waiting for probate of the will. Of course, it is understandable
if you donated for example your kidney, your heart, and then
mag-probate pa ka, wala na. Gilubong na tong imong
gitagaan ug organ. Imoha nalang nang imuhang heart. So,
you dont have to wait for the probate of the will.
Or, even if the will is declared to be invalid. Halimbawa, wala
na-comply ang requisites daghan man kayo nag requisites,
halimbawa wala nacomply ang isa under an ordinary will,
under an ordinary situation, the will would be invalidated. But
here, even if the will is invalidated, and as a consequence
legacies mentioned in the will cannot be given effect under
ordinary situation, but if it is a legacy of an organ or a part of
the human body, the law says it can still be valid and
effective even if the will itself is not valid as long as it
was made in good faith. So mao na na siyaang requisites.
Different ang technicalities insofar as the legacy of an organ
of the human body is concerned.
Again, any property can be transmitted by Succession as long
as the property is not res nullus, not res communes, not
prohibited by law. They can be transmitted. And of course
also, as a GR, the properties should be owned by the
testator. You cannot just also give by will a property which is
owned by you. Although as I said, its a GR, because there are
exceptions when we go to legacies and devises. So thats for
properties.
RIGHTS
Rights can also be transmitted by Succession. What rights?
The general rule here is patrimonial rights can be
transmitted by Succession. What do we mean by patrimonial
rights? Those rights which relate to properties.
Generally, your rights pertaining to properties are not
extinguished by your death. Those rights will be transmitted
to the heirs.
Examples of these rights:
Contractual rights
Right to insurance
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
redemption insurance, or MRI. What is the consequence of
that? If the borrower dies, then the insurance company will
settle the outstanding obligation, such that, assuredsi DBP.
So you see in that contract, the spouse of Leuterio is not a
party. So, can she file the suit to collect on the proceeds of
the insurance?
The Supreme Court said a policy of insurance upon life or
health may pass by transfer, will or succession to any person,
whether he has an insurable interest or not, and such person
may recover it whatever the insured might have recovered.
So here, the widow of the insured, Dr. Leuterio, may file the
suit against GrePaLife. The rights under a contract of
insurance or also transmissible. Thats in the case of
GrePaLife.
If you are the lawful owner of property, and you want to eject
an occupant from the property, but even before you file a
case or while the case is pending you died, your heirs may
continue the case or institute the case. Your right passes on
to them. That right is not extinguished by them.
are
not
Usufruct
Agency
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Example: A was constituted by B as his agent to sell a land.
That agency relates to property. But there is no transmission
of rights.
Right to vote
OBLIGATIONS
Obligations are also transmitted by succession. But when it
comes to obligations, the transmission is only up to the value
or extent of the inheritance. So if the decedent died, he has
lands cash etc amounting to 10 million. But he left payables in
the amount of 15 million. So the heirs will be made to pay the
debt but only up to the extent of the value of the inheritance.
So they can only be compelled to pay 10 million. Forget
about the 5 million. The heirs cannot be held personally liable
for the debts of the decedent.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
GR: Transmissibility of the obligation.
Example: Obligations arising from contracts.
Liu vs. Loy
Contract to sell there is no transfer of ownership until the full
payment of the purchase price while in a contract of sale
there is a transfer of ownership when there is delivery.
When he entered into a contract to sell, frank liu had the
obligation to convey the property to the buyer if the buyer
already fully pays the price. But he died so that obligation was
transmitted to the heirs.
In this case, even if there is more legal weight in a contract of
sale because there is already a transfer of ownership. But the
contract to sell has entered into ahead of the contract of sale
so there was already an obligation, the heirs cannot disregard
that obligation by entering into another contract over the
same property.
Insofar as debts are concerned, there are two views
on its transmissibility.
1.
One view says that debts are not actually transmitted because
prior to the distribution of the estate, the debts have to be
paid first. Before the heirs can take their shares, the estate
must first pay the taxes and debts charges and whatever
expenses. So the net hereditary estate will be distributed to
the heirs.
2.
and
obligations
are
Exceptions:
1.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
be extinguished upon the death of either the lessor
or lessee. That is not prohibited and that is valid.
2.
3.
4.
5.
Criminal liability
That is an obligation which is not transmitted. So if A
was sentenced to imprisonment for 20 years and he
died after 3 years, his children, although they look
like criminals also, they cannot be made to serve the
remaining years.
2.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
had 30 years to institute it. They filed the action in 1976
which is well within the period.
Locsin vs. CA
The catalina inherited certain properties from her husband.
She also had her own properties. During her lifetime, 4 years
before her death, she made a will affirming the transfer she
had made during her lifetime. So prior to the execution of the
will she already disposed of certain properties to her nephews
and nieces and then she died. Some of the nephews and
nieces who were not given any property questioned the
donations made by catalina during her lifetime on the ground
that those donations and alienations prejudiced their
legitimes.
The issue is whether or not the nephews and nieces may
validly question the transfer or donations made by catalina
during her lifetime. The SC said no because during the lifetime
of decedent the heirs only have an inchoate right, those
donations were made by catalina during her lifetime which are
valid. Because these donations are valid, they are already
removed from her estate. What passed on to the heirs were
only the residual properties.
On the premise that the donations prejudiced their legitimes,
the SC said that catalina did not have children. So she did not
have compulsory heirs. You are only nephews and nieces.
Only compulsory heirs have legitimes which can be prejudiced
by donations made during the lifetime. Nephews and nieces,
although they are legal heirs, are not compulsory heirs; they
do not have legitimes so they could not question those
donations.
Property which Doa Catalina had transferred or conveyed to
other persons during her lifetime no longer formed part of her
estate at the time of her death to which her heirs may lay
claim. Had she died intestate, only the property that remained
in her estate at the time of her death devolved to her legal
heirs; and even if those transfers were, one and all, treated as
donations, the right arising under certain circumstances to
impugn and compel the reduction or revocation of a
decedent's gifts inter vivos does not inure to the respondents
since neither they nor the donees are compulsory (or forced)
heirs.
All that the respondents had was an expectancy that in
nowise restricted her freedom to dispose of even her entire
estate subject only to the limitation set forth in Art. 750, Civil
Code. The limitation is that she remains sufficient property to
support herself during her lifetime.
1.
Actual death
Irreversible cessation of circulatory and respiratory
functions or the irreversible cessation of all functions
of the entire brain, including the brain stem (RA7170
organ donation act)
2.
Presumed death
It is discussed in article 390 and 391 of the NCC.
Death is presumed by law.
Ordinary presumption
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
the time of disappearance, in year 2000. It is when the
danger of death happened. We could not possibly think that
for example in year 2000 there was a volcanic eruption so the
last time you saw him he was running away from the lava and
then after that you did not find him and 4 years now he still
did not appear. You cannot think na naghingalo siya didto sa
lava for 4 years. Wala na patay na jud siya. The value of the
estate would be that in 2000. Transmission of ownership
happened in 2000. That is for qualified or extraordinary
presumption.
Eastern vs. Lucero
Lucero here was appointed as master of the vessel. And then
the vessel was expected to arrive in manila on February 18
1980. It was from Hong Kong. While on voyage, captain
Lucero sent 3 messages to the head of office in manila.
First message: REGRET TO INFORM YOU ENCOUNTERED
BOISTEROUS WEATHER WITH STRONG NORTHEASTERLY
WINDS WITH GAIL FORCE CAUSING THE VESSEL ROLLING
AND PITCHING VIOLENTLY
Second message: THAT THE VESSEL WAS LABORING
VIOLENTLY AND THEY HAD TO JETTISON CARGO.
Third message: THEY NEED IMMEDIATE ASSISTANCE AND
SEAWATER WAS ENTERING INSIDE HATCH VESSEL AND
THEY WERE PREPARING TO ABANDON ANYTIME
And no more messages after that. The vessel sunk and then
insurer confirmed the loss of the vessel. Because of that, the
company started paying death benefits to the family of the
crew.
But the wife of captain Lucero refused to receive it because
according to her the contract of her husband was from voyage
to voyage and the contract will be terminated upon the
husbands arrival in manila. Because the vessel did not yet
arrive in manila, then she still continues to receive monthly
allotment, not the death benefits, even if you follow the
provision in the CC, if we based the disappearance on danger
of death we have to wait for four years before we can
presume that the person died.
SC said that it is undisputed that on February 16, 1980, the
Company received 3 radio messages from Capt. Lucero that
they were facing danger at that time. There is enough
evidence to show the circumstances of the loss and the
disappearance of the vessels crew. The foregoing facts are
sufficient to lead to a moral certainty that the vessel has sunk
and that the persons aboard had perished with it
Upon this premise, the rule of presumptive death under article
391 paragraph 1 of the CC must yield to the rule on
preponderance of evidence. Where there are facts known
from which a rational conclusion can be made, the
presumption does not step in and the rule in preponderance
of evidence controls.
Here even if we have the rule on presumption, we have to
wait for 4 years, if there is enough evidence to show with
moral certainty that this person had already died, why should
we wait for 4 years when there is enough evidence. So the
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
2.
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
because the law says the transmission occurs upon the
moment of death but under the New Civil Code:
TYPES OF SUCCESSION
So, there are 3 types.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
What do you mean by testamentary succession? It is defined
in:
Art 779. Testamentary succession is that which results from
the designation of an heir, made in a will executed in the form
prescribed by law. (n)
That is very clear, there is a will.
How about legal succession? Legal succession or intestate
succession takes place when there is no will or where the will
is void. There is no exact definition of legal succession, there
is only an enumeration of what is legal succession.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property
of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there being
no substitution, and no right of accretion takes place;
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
But no newspaper publication shall be made where the
petition for probate has been filed by the testatorhimself.
Balanay v. Martinez
HEIRS
So,
only
properties
and
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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
the universality he gets the
properties,
rights
and
obligations. He constitute the
juridical personality of the
decedent, he can institute
cases in behalf of the
decedent.
rights, no obligations.
How about the mechanical act of drafting the will? Can that be
delegated? It depends. Because it depends on the kind of will,
if it is a notarial will, then the mechanical act of drafting the
will can be delegated. In fact, it is usually delegated to
lawyers because the formalities are complicated.
When it comes to holographic will, even the mechanical act of
drafting the will cannot be delegated because it should be
entirely handwritten, dated and signed by the testator. So, dili
pwede I-delegate.
Another consequence that the will is personal is that the
content of the will is confidential that is why the lawyer is not
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
required to retain a copy of the will or to submit the will to the
clerk of court.
A ANIMUS TESTANDI. There must be an intent to make a
will. So the testator must understand that this is my last will
and testament that the consequence of my disposition of my
property upon my death. This will take effect upon death of
testator. One of the essential qualifications of the testator is
that he must have a sound mind because how can you have
animus testandi if you do not have a sound mind. That is why
also, only natural persons can execute wills because
corporations cannot have animus testandi.
Montinola v. Herbosa
Obviously when Rizal made the poem he is not contemplating
on making a will because there was no animus testandi. It can
be considered a will in a grammatical sense but not in a legal
or juridical sense.
2.
2.
contains
an
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
document is denominated as a last will and testament but it
does not conform to the formalities of a will.
But can this document be used as evidence to prove the
illegitimate filiation? YES. In reality this document is not a will
because there is no disposition of property. So there no need
to comply with the formalities to be valid or to be utilized as
evidence in court. In your Family Code you prove filiation
through primary and secondary evidence and a valid last will
and testament is not one of the requisites. It could be a public
record of birth or a private handwritten instrument subscribed
signed by the putative parent.
3.
1)
2)
3)
The
heirs,
legatees
devisees are not named
Art 785
or
The
heirs,
legatees
or
devisees are referred to by
name in the will
There is no class or cause
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
What the 3rd person does is
to determine the persons,
institutions or establishments
Examples:
1. I leave all my properties to the top 5 of 3-Manresa and X
will determine how much will be the share of each.
VALID. This is under Art 786- there is naming and there is a
specified class (3-Manresa)
2. I hereby give my property to Miss Bonfiacio, Mr Abapo, Ms
Bagundang and Mr Villacampa and X will determine how much
the share of each
VOID - Art 785. There is naming
3. I hereby leave such sum of money as X shall determine to
support the top 5 of Manresa class 2015
NOT VALID because there is no specific property. The
amount is not specified
This almost the same as Art 785. Here again a 3 peson has
to det won the test disposition is operative. This is not allowed
because it violate the personal characteristic
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
KINDS OF AMBIGUITIES
A.
2)
3)
4)
B.
2.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
long as it is not in relation to the supposed intention of the
testator.
In your Obligations and Contracts, there is the remedy of
reformation. If there is a meeting of the minds between the
parties but the agreement is not written so as to reflect their
true intention, you can avail of reformation. For example they
merely agreed on a mortgage but the document is a pacto de
retro sale. So you can have that document reformed to
express the true agreement.
Is reformation also available to cure a defect on the will? No.
Basis: Art 1366.
Article 1366. There shall be no reformation in the ff:
(1) Simple donations inter vivos wherein no condition is
imposed;
(2) Wills;
(3) When the real agreement is void.
In reformation, the first step that would happen is you ask the
party like Hoy A, mali man diay ni atong agreement. Dapat
mortgage pero sale man ni! Walay problema kung mu-ingon
si A na Ay tama diay. Usabon nato. Pero kung mu-ingon si A
na Dili uy sale na na siya. Di na ko musugot ug reformation.
Then this is the time that you file for reformation. How do you
apply this in case of wills? Nag-promise si testator I will give
to you 10 hectares of my land in Davao City. but in the will 1
hectare lang ang nakabutang. Can you file an action for
reformation against the testator? NO YOU CANNOT. In fact
the testator may even revoke the will. Wala na hinuon kay
madawat. The same rationale applies in case of donations
because these are acts of liberality.
Article 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
use them in another sense can be gathered, and that other
can be ascertained.
a.
b.
2.
Under Art 790, you have ordinary and technical terms used in
the will.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Yambao v Gonzales
Here the SC was confronted with the question of how to
interpret a disposition whether it was mandatory or merely
discretionary because of the word pahintulutan. The SC
interpreted the will as a whole and interpreted the word
pahintulutan in conjunction with the preceeding word
tungkulin o dapat gampanan.
Finally the SC said that it was not within the discretion of the
heirs whether or not they would allow the tenant to stay.
They have the duty to do so.
2.
3.
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Ateneo de Davao College of Law | Tres Manresa 2015
belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the
disposition shall take effect.
4.
2.
Since the building was being rented, can A eject those who
are renting? No, due to the transmissibility of obligations, in
which case, he acquires the obligation to respect the lease.
So, he cannot eject except for other compelling reasons.
Problem: He did not eject and there were not-paying renters
for 1 year and after the death of the testator, A owns the
building. Even giving a grace period, still, the renters failed to
pay for another 1 year after the death. But later on, they were
able to pay in cash worth P2 Million, good for 2 years.
Who is entitled to the rentals? Take note that the rentals were
paid 1 year after the death of the testator but those rentals
were due during the lifetime or before the death of the
testator and other were due after the death of the testator.
Will A own it all or he receives nothing?
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estate that upon the death of the testator, the estate will
acquire the remaining interest from the other owners and
the balance will be given to the devisee.
What if the remaining owners refuse to sell their shares
or if they are willing to sell, they are demanding for an
excessive price, what is now the obligation of the estate?
The obligation of the estate is to give to the devisee the
just value of the land. Take note, the testator knows that
he does not own the entire property, but despite that, he
still give it. Here, there is an implied instruction.
3.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
We have discussed that extrinsic validity can be viewed
on the viewpoint of time. To determine whether or not
the will is valid as to form, the testator must comply with
the law enforced at the time of the execution of the will.
2) FROM THE
COUNTRY
VIEWPOINT
OF
PLACE
OR
consular
office of the
Philippines)
Reason: Diplomatic
or consular offices
are considered as
extended territories
so by fiction of law,
the will is deemed
made in the
Philippines even if
abroad.
Abroad
Philippine Laws
according to Article
17 of NCC, Par 1:
Law of the place of
execution (Lex
FIL
(NOT before
diplomatic or
consular
office of the
Philippines
Example: A Filipino
executing will
which is valid in
US, it is also valid
in the Philippines.
Place of
Execution
Philippines
Governing Law
Philippine Laws
according to Article
17 of NCC, Par 1:
Law of the place of
execution (Lex
Loci
Celebrationis)
Abroad
(before
diplomatic or
Philippine Laws
according to Article
17 of NCC, Par 2.
Loci
Celebrationis)
Alien
Abroad
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Ateneo de Davao College of Law | Tres Manresa 2015
extrinsic validity from the viewpoint of place or
country:
1.
2.
3.
1.
(iii) Article 816 of the New Civil Code: Alien
Testator Executing his Will Abroad
2.
3.
4.
2.
b)
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Problem: Assuming that the testator made a will in 1940 and
in his will, he omitted his illegitimate child. Under the old Civil
Code, there is no recognition of successional rights of
illegitimate children but under the NCC, illegitimate children
are already recognized. Under the NCC, the omission is
allowed (called Preterition).
Is that will intrinsically valid? Considering that the law applies
is the existing law at the time of the testators death, if he
died before the effectivity of NCC, the will is intrinsically valid.
But if he died after the effectivity of the NCC in which the
omission is not allowed, the will is not intrinsically valid. You
have to consider the time of death. Even if the will is made in
1920 before the effectivity of NCC when preterition is not
allowed, it does not matter because we are talking about
intrinsic validity and the reckoning point is the time of death.
2.
FROM THE
COUNTRY
VIEWPOINT
OF
PLACE
OR
Order of succession;
2.
3.
PCIB vs ESCOLIN
The law which should govern is the Texas law which is the
national law of the testator. How do we know the contents of
the foreign law? Does our court take judicial notice of their
laws? No. The court does not take judicial notice and the
court should ask the person invoking the said law to allege
and prove the said foreign law.
What are the exceptions?
1.
2.
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Ateneo de Davao College of Law | Tres Manresa 2015
law should be applied considering that the testator is a
Turkish citizen at the time of his death. However, the laws of
Turkey were not presented in court. Thus, the doctrine of
processual presumption applies.
In the absence of proof of foreign [Turkish] laws, it is
presumed that it is the same with our [Philippine] laws.
In this case, the applicable law is the Philippine laws in the
absence of proof or even presentation of Turkish laws.
ANCHETA vs GUERSEY-DALAYGON
This is a disciplinary case against Atty. Ancheta. Audrey and
Richard were American citizens and the wife died leaving
substantial properties to her husband. Richard remarried in
the Philippines and left his properties in his wife in the
Philippines upon his death. Audreys will is probated in
Maryland and in that procededing, Ancheta is named as
ancillary administrator. When Richard died, the will of Audrey
(bequeathing properties to Richard) needed to be probated in
the Philippines. During the proceeding in the Philippines,
Ancheta made a project of partition and the same was
opposed by Candelaria (2nd Filipina wife) being contrary to US
laws and contravenes certain provisions in Audreys will.
According to Ancheta, he made the project according to
Philippine laws having no knowledge of US laws. Using the
doctrine of processual presumption, US and Philippine laws
are deemed the same absence of any proof.
Was Atty. Ancheta justified in saying that he merely presumed
that Philippine laws apply? No. First, his office was also a
participant in the US, being an ancillary administrator. When
Audreys will is probated in the US, he already knew US laws.
Second, being a senior partner in a prestigious law firm with a
large staff and legal library, he has all the resources to
determine the competent law. It is incumbent upon him to
exercise his functions as ancillary administrator with
reasonable diligence and to discharge the trust repose against
him faithfully. Unfortunately, he failed to perform his fiduciary
duties.
The Court added that how could Ancheta honestly presume
that Philippinbe laws apply when as early as the reprobate of
Audreys will before the trial court in 1982, it was already
brought to fore that Audrey is a US citizen, domiciled in the
State of Maryland.
The Court does not apply
circumstances of the case.
presumption
due
to
the
2.
3.
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So in that case, our law said that it should be his national law.
But in his national law, they have two separate provisions, the
California Probate Code and the Article 946 of California Civil
Code. What will govern is Article 946 of the Civil of California,
which says the law of the domicile which is the Philippines.
But again, our law provides (Art. 16 of the NCC) that
California laws will apply, his national law.
So what will govern? When they refer back, we no longer
back to Article 16 since it will point us to the national law of
the testator.
So we go now to the internal law of the Philippines on
succession, the legitimes, the distribution of property. We do
not go back to Article 16 (which is not an internal law being a
conflict of law rule), since in that case, the SC said, the matter
will just be tossed back and forth like international football or
pingpong incapable of final determination.
So what do you call that doctrine? We call that RENVOI
DOCTRINE. Renvoi Doctrine was applied in this case, we apply
the internal law of the forum, the Philippines. So what law
was applied here is not anymore the national law of the
decedent. Even if Article 16 says that the intrinsic validity of
the will shall be governed by the national law of the decedent,
but because of the application of Renvoi Doctrine, ultimately,
it is still Philippine law that is applied.
Specifically we have Articles 887 894 of the New Civil Code,
which was applied here by the SC.
What are these 2 instances when even if Article 16 say that it
is the national law of the decedent that should govern the
intrinsic validity of the testamentary provisions but you still
apply Philippine laws?
1.
2.
WITH
TESTAMENTARY
POWER
BUT
NO
TESTAMENTARY CAPACITY So if you say if a person is of
sound mind but is a minor, he does not have testamentary
capacity. So in that case, how can he have testamentary
power? Under the Civil Code, the privilege is given. So, all
persons here have testamentary power since we are covered
by the Civil Code. But even if he has testamentary power he
may not have testamentary capacity being a minor.
WITH
TESTAMENTARY
CAPACITY
BUT
NO
TESTAMENTARY POWER You be of sound mind or you
may be of age but your country does not give you the
privilege to execute wills, so you dont have testamentary
power. But again thats just the technical definition. If you are
asked to distinguish the two, you answer that. It is not an
excuse that they can be used interchangeably. But, when we
discuss testamentary capacity and testamentary power later,
they refer to one and the same thing.
Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
It gives us who can execute wills. Based on the definition, the
GR is capacity because it says all persons who are not
expressly prohibited by law, so as long as you are not
prohibited by law, you may execute wills.
The law says persons, we have 2 kinds of persons in general,
we have natural persons and juridical persons. Now when
Article 796 speaks of persons, are we referring to both kinds
of persons? No. JURIDICAL persons cannot execute wills
because they are NOT qualified. They cannot have sound
mind because they do not have physical existence. So only
natural persons can execute wills. Juridical persons cannot be
testators, but they can be heirs in testamentary succession
which we will discuss later on. Although in legal succession, a
state can also be an heir.
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
It gives us the disqualification. If you are under 18 years of
age, you cannot make a will. So if you are at least 18 years of
age, you can make a will. There is no specific requirement,
like female or male, either sex.
So now let us go to the meaning of 18 years of age. There are
3 theories in the meaning of 18 years of age:
Examples:
Ad Majorem Dei Gloriam
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1.
2.
3.
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Ateneo de Davao College of Law | Tres Manresa 2015
1.
2.
3.
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Ateneo de Davao College of Law | Tres Manresa 2015
Drunkenness and Drug addiction, will these affect soundness
of mind? Drunkenness, he may be considered of sound mind if
sobra sobra iyahang pagka hubog bisag dili siya buang. You
dont have to have a perfectly balanced mind, but also you
dont need to be totally insane to be considered of sound
mind. As long as you comply with the 3 requisites, then you
are not of sound mind. How about drug addiction? Siguro
2.
3.
2.
3.
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Ramirez vs. Ramirez
In so far as the soundness of mind of the testator is
concerned, we have the testimony of the notary of the public
as one of the admissible evidence. As a general rule, that
testimony is given great weight. However, in this case, the
testimony of the notary public was not given weight. The
notary public was evasive, he could not commit himself he
was referring only to the certification to that effect, so that
was not given weight by the SC.
How about the testimony of the attesting witnesses, we are
referring here to a notarial will because there are no witnesses
when it comes to holographic wills. So the witnesses on the
notarial will are also competent witnesses as to the mental
condition of the testator. How about the attending physician?
We have here:
Samson vs. Corrales Tan
As a general rule, the testimony of the physician is given
highest regard if present when the will as executed. But in this
case, the SC did not give much credit to the testimony of the
physician, instead, it gave more credit to the testimony of the
attesting witnesses who positively testified that at the time
the testator executed the will, he is of sound mind. So they
testified to his mental condition.
Here, the physician is not the attending physician, so he can
only give an opinion to the mental condition of the testator as
opposed to the complete testimonies of the witnesses, the SC
here, again gave more credit to the testimonies of the
witnesses. The testimony of other witnesses may also be
admitted, not necessarily the attesting witnesses but also
those persons who are present at the time of the execution of
the will. So they witnessed the behavior of the testator at that
time, the way he talked, he moves, his demeanor. So they
could testify as to the mental condition.
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abovementioned properties without the consent of their wives.
In fact, this was also mentioned under Article 97 of the Family
Code.
Art. 97. Either spouse may dispose by will of his or her
interest in the community property. (n)
That would be with respect to the right of a married woman.
First, the testator does not have to state in the will that it is in
a language or dialect known to the testator although in some
wills, just to be safe, especially in notarial wills, it is provided
that this will, which is written in English, a language known
to the testator. This, however, is not a requirement.
Second, it is not also required to be stated in the attestation
clause. When we go to Article 805, there are also items
mentioned there that should be stated in the attestation
clause. The language requirement is not one of those required
to be stated in the attestation clause.
Third, the fact that the will is in a language or dialect known
to the testator can be proved by extrinsic evidence or
evidence alliunde. So, if the will is silent or it is not provided in
the will that it is in a language or dialect known to the testator
and it is being questioned on that ground, you can present
extrinsic evidence such as letters of the testator written in
French, testimony of the testators French friends who only
know French, thus proving that indeed the testator
understands French.
Those are the three consequences of the presumption that
the will is in a language or dialect known to the testator. We
have cases which illustrate the language requirement.
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Abangan v. Abangan
Was she a resident of Cebu? No.
So, even if she was not a resident of Cebu but a resident of a
neighboring locality, the Supreme Court said the will was in a
language or dialect known to the testatrix. It was sufficient.
This complied with the language requirement.
If you are a resident of a neighbouring town like Digos and
Davao, it would be very farfetched to think that someone who
is in Digos has not yet gone to Davao.The language are the
same, so they can really understand Bisaya. The language is
also the same in Cebu and Bohol. They have the same
language because of the proximity of their localities.
Reyes v. Vidal
Even if there was no testimony, even if there was no
statement in the will itself that the testator knew the Spanish
language, the records of the case showed that she knew.
What were the circumstances aside from the fact that she was
a Spanish mestiza? She was married to a Spaniard. She wrote
several letters in Spanish. She made several trips to Spain.
These circumstances would show that there was a connection
between the language used in the will and the circumstances
of the testatrix. So, the language requirement in this case was
complied with.
Abada v. Abaja
There was evidence to prove that the testator knew the
Spanish language. Again, what do you call this kind of
evidence? Extrinsic evidence or evidence alliunde. So, there
was evidence alliunde. There were evidence introduced
showing that the testator used to gather with Spanishspeaking people and in their gatherings, they would speak in
Spanish.
Acop v. Piraso
Where did the testator reside? In the City of Baguio.
Here, why was the presumption that the will is not in the
language or dialect known to the testator not applied?
What happened to that presumption?
What kind of presumption is this? A disputable presumption.
Here, the SC said that the presumption did not arise because
again you cannot relate the connection between the testator
and the language used. So, even if you have a presumption,
as held in the case of Acop v. Velasco, it could be contradicted
or rebutted by contrary evidence.
Javellana v. Javellana
What was the language used in the will? Spanish.
Where does the testator reside? In San Juan, Manila.
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three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence
of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Article 805 is a very important provision. It gives us the
formalities of a notarial will. These matters mentioned in
Article 805 refer to the extrinsic validity of the will- the forms
and solemnities of a notarial will. It is very clear under Article
805 which says, Every will except holographic will, that this
article does not apply to holographic wills, only to notarial
wills.
You have to know by heart the requirements for the execution
of notarial wills. No need to memorize. Just summarize. There
are several requirements and all of these requirements have
equal importance. The common underlying reason for the
imposition of these requirements is to prevent fraud in the
execution of wills to assure that that testator really executed
the will intelligently and voluntarily. So, we have these
requirements to close the door against fraud and bad faith, to
avoid substitution of wills, and to guarantee the authenticity
of the wills. Failure to comply with any of the requirements
under Article 805, as a general rule, would result to the
inadmissibility of the will. So, the will cannot be admitted to
probate.
What are these requirements?
1st requisite The will must be subscribed by the
testator himself or the testator's name is written by
some other person at the end, in his presence, and by
his express direction.
Here, we have the requirement of subscription. What do we
mean by subscription? We are talking here of the subscription
by the testator. Meaning, the signing of the will by the
testator. Subscription here means signing. The mechanical act
of the signing the will.
Where should the testator sign the will? The law says at the
end. What do we mean by that? The law here means the
logical end, not the physical end. The logical end refers to the
portion after the dispositions but before the attestation clause.
So, it is in the middle. After the last wishes of the testator, his
name follows. It is where he should sign. What is the reason
why it should be the logical end of the will? To prevent
unauthorized insertions. So, even if the dispositions only
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to the signing by another person is not sufficient to meet the
requirement of express direction. Those are the two
requirements.
What should the testator sign in the will? What should he
subscribe in the will? Of course, his name. What signature? It
can be his customary signature. So, if his name is Piolo
Pascual, he can write his entire name. If he uses PP (initials),
that is also allowed if that is his customary signature. He can
sign in two ways. He can sign in his full name. He can sign
using other marks like, aside from his initials, it can be his
thumb mark, stamp, cross, smile, heart, or any other mark as
long as it is his customary signature, or he intended that mark
to be his signature. That is insofar as notarial wills is
concerned. He can sign by those means.
What if it is the third person who will sign in behalf of the
testator? What will the testator put in the will? Of course, the
testators name. The third person, even if he signs for and in
behalf of the testator, should write the name of the testator.
Although he can add his name in the will, he should put the
name of the testator.
Leano v. Leano
The testatrix here was Christina Valdez. How did you know? Is
there anything in the will which would indicate that she was
the testatrix? It was written in the will.
What was the nature of the will? Notarial.
Who wrote the name Christina Valdez? A third person. It was
not Christina Valdez herself.
So, a third person wrote the name Christina Valdez in the will.
However, Christina Valdez inserted a cross on her name.
Was it her customary signature? Was there an intention to
make the cross as her signature? Yes.
Here, as long as you can prove that the mark was the
customary signature of the testator or there was an intention
to constitute the mark as her signature, then the mark is valid
as a signature. Here, the will was valid because the will was
considered to be her signature.
Garcia v. Lacuesta
What was the kind of the will here? Notarial.
Who was the testator? Mercado.
Who wrote the name of Mercado in the will? Atty. Florentino.
However, Mercado placed a cross above his name.
Was the cross considered to be the signature of Mercado? No,
because it was not his customary signature.
Will this fact make the will void? No.
When the SC found no evidence showing that the cross was
the customary signature or the intended signature of the
testator, it converted the will into one which is signed by a
third person (Atty. Florentino). Again, even if the cross there is
not the valid signature of the testator, that alone did not
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margins, it does not matter because it would still serve the
purpose of identification. You can still identify the will based
on the presence of the signature [regardless of position].
The requirement of marginal signatures is not only limited to
the testator. It extends to the credible witnesses. They should
also sign in the margins. What if there is only one sheet of
paper but it is back-to-back? The back portion contains the
signature of the testator. Is there a need for him to sign at
the front page? Yes. A page is different from a sheet. One
sheet of paper consists of two pages-front and back. All pages
should be signed.
What if the will consists of 4 pages? The first three pages
contains all the dispositions of the testator as well as his
signature. The fourth page contains the attestation clause and
acknowledgment? In this case:
4.
Those who have all the qualifications under article 820 and
none of the disqualifications under 821. This is determined by
law or statute
2.
Credible
Fernandez v. de Dios
The testator failed to sign the fourth page. Is the will valid?
Yes. Based on the basic principle that the will is the act of the
testator; the attestation clause is the act of the witness; and,
the acknowledgement is the act of the notary public.
What the law requires for the testator to sign in the margins is
the will. Thus, when the third page only contains the
attestation clause, strictly speaking, the same is no longer
part of the will. The testator need not sign the page, only the
attestation clause. But the witnesses must sign the pages
containing the will and the attestation clause.
2.
3.
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The presence of the signatures of the witnesses on the
margins is for identification; attested to the genuineness of
the signature of the testator and the due execution of the will
as embodied in the attestation clause.
So there is no need for the witnesses to also sign at the send
because they already signed at the margins and besides the
law did not even mention that each and every page should be
signed by the witnesses at the end. The law merely says that
the will must be signed at the end by the testator himself or
by the person requested by him to sign and also in the
margins. Probably the trial court here was confused as to the
application of the law, there is no need for the witnesses to
sign at the bottom of the first page containing the disposition.
There is another case where the SC said that they have to
sign at the bottom. But its not in the page containing the
testamentary dispositions. We refer here to the first page
containing only the testamentary dispositions.
As to the second page, if it only contains the attestation
clause and signature there is even no need for the testator to
sign. If she signs doesnt matter even if she did not sign the
will would still be valid because the attestation clause, strictly
speaking is not part of the will.
If the will contains only one page, all the testamentary
dispositions,
the
attestation
clause
and
acknowledgement of course in one page, there is no
need for marginal signatures because the purpose of
marginal signature is already served by the presence of
all the signatures.
Here, if later on the witnesses would be asked to testify as to
the will, if this is the will which you attested 20 years ago they
could already identify the will by the presence of the
signatures.
2.
3.
4.
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you have the page number. In fact it can even appear in the
body of the will.
Fernandez vs. de Dios
The page containing the attestation clause was not numbered.
However it does appear in the text of the attestation clause
the words having reference to the number of sheets of the will
including the page number of the attestation. So obviously the
page containing the attestation clause is the fourth page and
hence the SC held that there is substantial compliance.
Here you can still determine the page number even of there
was no clear page number at the top or bottom but it can be
gathered from the statement in the attestation clause so it
appears at the body of the attestation clause. Here again, the
will is valid.
Lopes vs. Liboro
testator
To
subscribe
a
paper
published as a will is only to
write on the same paper the
names of the witnesses for
the
sole
purpose
of
identification
The first page does not have the page number. there were
several pages here but the first page was not numbered.
Would this invalidate the will? SC said no because it is very
clear that it is the first page. Usually the first page contains
the title last will and testament.
Abangan vs. Abangan
The will only had one page and it was not numbered. It will
not affect the invalidity of the will. It is understandable that if
the page is lost everything would be lost. So you can easily
determine the degrees of the pages because there is only one
page. The absence of a page number, if the will has only one
page will not invalidate the will.
2.
SUBSCRIPTION
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1.
Test of vision
Test of position
Jaboneta vs Gustilo
4.
Test of apprehension
Even if you did not see but at the back of your mind you
already know that the will is being signed.
Gabriel vs. Mateo
ATTESTATION CLAUSE
In relation to this, we discussed that the will must be attested
and subscribed by the witnesses in the presence of the
testator and of each and every one of them. We also
discussed and defined the meaning to attest.
Aside from the fact that the will should be attested because
attestation is a mental act, we also need the attestation
clause. Even if in reality the witnesses really attested the will
but without the attestation clause, the will is not valid. Aside
from the ACT there should be that WRITTEN STATEMENT and
that is the attestation clause.
An attestation clause is the declaration made by the
witnesses. It is that clause of an ordinary or notarial where
the witnesses certify that the instrument has been executed
before them and the manner of the execution of the same. It
is a separate memorandum or records of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed.
The purpose here is to preserve in a permanent form a record
of the fact attending the execution of the will. So that in case
of death, absence or failure of memory of the subscribing
witnesses or casualties, the due execution of the will may still
be proved.
This is because usually in testifying to the will it is during
probate and it happens long after the execution of the will.
What if at that time all the witnesses forgot about the will or
all of them died or all of them left the Philippines. So who will
testify? So how do we prove the due execution of the will? We
have the attestation clause which preserves in a permanent
form the facts attendant to the execution of the will. So that is
the purpose why aside from the fact of attesting, we need the
attestation clause.
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Ateneo de Davao College of Law | Tres Manresa 2015
As we discussed, the witnesses attest to the genuineness of
the signature of the testator and they attest to the due
execution of the will as embodied in the attestation clause.
The attestation clause is the act of the witnesses. It is their
declaration regarding the facts attendant to the execution of
the will. That is why the signatures of the witnesses are
required in the attestation clause.
Azuela vs. CA
The page containing the attestation clause was signed in the
margins by the witnesses. But they did not sign at the bottom
of the attestation clause. The signatures on the margins were
not considered as substantial compliance.
Marginal signatures purpose is for identification and it does
not matter where they are located. But when we speak of the
attesting signatures, they must be at the bottom to signify
that, those persons who signed, that they own or they avow
the truth of the recitals contained din the attestation clause.
You cannot consider the signatures n the margins as being
directed towards the avowals or recitals contained in the
attestation clause. SC said those marginal signatures are
directed towards a wholly different avowal. They are merely
for identification.
If there were signatures at the bottom of the attestation
clause but no signatures in the margins, the will would still be
valid. So even if the signatures are at the bottom they could
still serve a double purpose. They can serve tio avow or won
the recitals in the attestation clause and they could also serve
to identify the page.
The case of Azuela is the same as the case of Cagro vs.
Cagro. SC made the same pronouncement that the will was
void because it was not signed at the bottom.
When we say attestation clause it is the act of the witnesses.
They should sign at the end of the attestation clause. SC
pointed out that it would be dangerous if they would just
accept that attestation clause was being signed at the margins
because it would be very easy to just insert an attestation
clause if you just allow signatures in the margins. This is
another safeguard to prevent the future insertion of an
attestation clause in a will that does not otherwise contain an
attestation clause.
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Ateneo de Davao College of Law | Tres Manresa 2015
which the will is written. We discussed the case of Azuela v.
CA and Matter of the Petition for the probate of the last will
and testament of Enrique S. Lopez. Also the case of Taboada
v. Rosal. Lets go the second
2) The fact the testator signed the will and every
page thereof or cause some other person to write
his name under his express direction
So we are referring here to the signing by the testator. So it is
either you state that the testator is signing the will or another
person signed the will under the express direction of the
testator.
Garcia v. Lacuesta
The name of the testator Antero Mercado was written by his
lawyer and there was a cross affixed by Antero Mercado
however there was no evidence that he intended his cross to
be his signature. It is not his customary signature, therefore,
the SC first disregarded the cross since it was not the
signature of the testator. What we have here is a will which is
signed by the lawyer in behalf of the testator however you
should state that in the attestation clause. That it is signed by
a third person under the express direction of the testator.
That made the vill void because it lacks the statement under
his express direction.
3) That the signing by the testator or the person
requested by him was in the presence of the
instrumental witnesses.
Aside, from the fact that you state that the will was signed by
the testator, you state that the signing was made in the
presence of the witnesses.
4) That the instrumental witnesses witnessed and
signed the will and all the pages thereof in the
presence of the testator and of one another.
I am referring to the act of the witnesses. Take note, that the
witnesses witnessed and signed the will or attested and
signed the will in the presence of the testator and each one of
them. It is very important that you have to state that in the
attestation clause. To be safe, you better copy the provision in
Art 805 because maling gamay it would be very fatal to the
validity of the will.
Abada v. Abaja
Here it was allaged that the attestation clause fails to state
expressly that the testator signed the will and every page in
the presence of the witnesses. As translated in English, this
was the statement, Subscribed and professed by the testator
Alipio Abada as his last last will and testament in our
presence, the testator having also signed it in our presence on
the left margin on each of every page of the same.
Issue: WON the statement in the presence of the witnesses
is omitted?
Answer: NO. The SC said that this attestation clause clearly
states that the body of the will was signed in the presence of
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
and the will would be valid even if he acknowledged the
same.
Azuela v. CA
An acknowledgement coerces the instrumental testator and
the witnesses that they executed the will in their own free act
and deed. What is a jurat? It is a statement under oath. There
is nothing in the jurat that complies with Art 806 that the
witnesses should declare that the will is for the testator and
the attestation clause is for the witnesses and was signed by
them voluntarily and intelligently. So, a jurat is not a sufficient
compliance of acknowledgement required under Art 806.
Again, take note, that there has to be a statement where the
Notary Public coerces the testator and the witnesses to
declare before him under pain of perjury that they really
voluntarily and intelligently executed the document. That is
the importance of acknowledgement.
Echavez v. Dozen Construction and Devt Corp.
An acknowledgement and attestation clause cannot be
merged into one statement. These provisions are under the
New Civil Code under Art 805 and Art 806 hence it indicates
that the law contemplates two distinct acts that serve for
different purposes. Acknowledgement is made by one
executing the deed declaring before a competent officer of the
court that the deed or act is his own while attestation clause
refers to the act of the instrumental witnesses themselves
who certify to the execution of the instrument. So when you
say, the attestation clause is the act of the witnesses while
acknowledgement is a statement where the Notary Public
coerces the testator and the witnesses to declare before him
under pain of perjury that they really voluntarily and
intelligently executed the document. Thus you cannot merge
the attestation clause and the acknowledgement in the
acknowledgement
portion.
Even
granting
the
acknowledgement embodies what the attestation clause
requires still the SC said it is not acceptable that the two can
be merged.
With respect to failure to attach a documentary stamp in the
acknowledgement, is it a ground to invalidate a will?
Gabucan v. Manta
Failure to attach doc stamp is not a fatal defect. You can just
require that the doc stamp be affixed in the will.
Is the Notary Public, require to know the contents of the will?
As a general rule NO, he will just ask the testator that did you
understand the contents of the will? Did you voluntarily signed
the will? Is it your act? That is also the same question to the
witnesses. The Notary does not have to know the contents of
the will. Except where the testator is blind under Art 808, the
will shall be read twice, first by one of the subscribing
witnesses and another by the Notary Public by whom the will
is acknowledged. So, in that case he would really have to
know the contents of the will.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
808 because it should have been read once by the subscribing
witness and another by the Notary Public who acknowledged
the same.
In this case, the testator is blind since she cannot read; she
can only see objects at 3 ft. and count fingers but not read. In
here, the law was not followed by letter but in spirit it was. So
here, the SC said as long as the purpose of the law is
complied with which is to ensure the authenticity of the will
then the formal procedure should be brushed aside, also,
when they do not affect its purpose and which taken into
account would only defeat the testators will.
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Ateneo de Davao College of Law | Tres Manresa 2015
[HOLOGRAPHIC WILLS]
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
(678, 688a)
We only have two wills allowed and recognized in our
jurisdiction: (1) Ordinary or Notarial Wills and (2) Holographic
or Holograph wills.
So based on Art 810, it is entirely written, dated and
signed by the hands of the testator.
It is subject to no other form and does not require
acknowledgement, attestation, marginal signatures,
paging, etc., subject also to no other form and may be made
in and out of the Philippines and again need not be
witnessed.
Advantages of executing holographic wills:
It is easier to make
Disadvantages:
It is easier to misunderstand
Civil
Code,
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
So, a holographic will must be entirely written, dated and
signed by the hand of the testator. Aside from that we have to
go to Art 804 that it must be in the language or dialect known
to the testator. Aside from the fact that it has to be executed
with Animus Testandi just like a Notarial Will.
I.
IN WRITING
1.
DATE
2.
3.
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
There was only one. And obviously this will was executed
after the effectivity of the New Civil Code, because it was
1961.
Here we could apply the rule on substantial compliance
because the contingencies guarded against by the
requirements of specifying the date are not present here. The
date Feb 1961 was sufficient.
How about if it is Christmas of 2005? So when you say
Christmas, thats December 25. Valentines Day 2011. That
would be February. My birthday, like for example the testator
said my birthday, you could also determine. In those
examples, the dates would be sufficient.
Where should the date appear in a holographic will? Is there a
particular requirement as to the location of the date? There is
none. The date can be written on top, at the side of the
signature, right side, left side, theres no particular
requirement.
III.
SIGNATURE
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Ateneo de Davao College of Law | Tres Manresa 2015
Take note of the testimony. He should explicitly declare,
meaning he should positively, categorically declare and
identify that this signature is that of the testator.
Maravilla vs. Maravilla
Now the first issue here: how do we know that the will is
contested? Is it so difficult to know whether or not a will is
contested? An example would be the case of:
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Ateneo de Davao College of Law | Tres Manresa 2015
what should the court do? So, expert testimony may be
resorted to if the 3 witnesses cannot be presented. What is
important is that the court is convinced of the authenticity of
the will.
What happened in the case of:
Codoy vs.Calugay
So in this particular case, it is mandatory to present the 3
witnesses. Which is which? Is it mandatory or permissive?
But in the case of Codoy vs. Calugay, it was really the issue.
The genuineness of the handwriting of the testatrix. The
Supreme Court even said that there were really discrepancies
in the handwriting of the testator in the other documents
compared with the will. There were erasures, the strokes were
different, that was really the major issue that confronted the
Supreme Court. So here the Supreme Court said that it is
mandatory to present the 3 witnesses.
How do we reconcile?
If the issue really, if you are confronted with a case where the
issue is similar to the case of Codoy, na naa gyud didto sa
authenticity and genuineness of the will ang question whether
or not it is the handwriting of the testator, then you answer in
accordance with the ruling of the Supreme Court in the case
of Codoy vs. Calugay. And this is also the later ruling of the
Supreme Court.
But if for example you are given a problem na similar gyud
kayo sa facts sa Azaola case, then most probably the
examiner is referring to the case of Azaola vs. Singson.
But if you really want to top the bar the exam, if the facts are
similar to the case in Azaola, you answer the ruling in Azaola
vs. Singson but you can add, however in the case of Codoy
vs. Calugay, etc. etc.
Again, kung kalimot namo, then the later ruling. (Which is the
Codoy case)
Is there a need to present a copy of the will in court? Of
course it is required. How about if the copy is just a
photocopy or carbon copy, scanned, photostatic copy, picture
sa holographic will? Would that be allowed? Diba you have
already discussed the Best Evidence Rule? Under Rule 130,
Section 3 of the Rules of Court, diba it should be the original
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
contents can still be proved by the recital of at least 2
witnesses. That will be in Notarial wills.
Also in Notarial wills, when there is no contest or opposition,
the testimony of 1 subscribing witness is sufficient to prove
the will. But if the will is contested, all of the subscribing
witnesses and the notary public should testify. That is the rule
in your Special Proceedings.
nakadtong
Pero kung date lang walay signature, then dili siya valid.
A813. Validated
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
hands of the testator. So this now violates the
provision under Article 810. This will invalidate the
entire will. That will be if these additional provisions
are signed by the testator.
Ang 814 within the will, the body of the will. Ang kadtong 812,
813, additional after the signature. So you can insert, I
hereby give to A my lot in Calinan, Davao City. Insert nimo,
and D. I hereby give to A and D. That has to be
authenticated with the signature of the testator.
When we say full signature, we still follow the rule in the
signature which we discussed before. It should be his full
signature, or full customary signature, but not initials. Not
thumb mark, stamp, etc. It should be authenticated.
2)
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Ateneo de Davao College of Law | Tres Manresa 2015
the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect
in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject
of another country, which is executed in accordance with the
law of the country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to
the laws of the Philippines. (n)
We already discussed Articles 815 when we discussed the
extrinsic validity of wills. 815, 816, 817.
Diba as we discussed before in 815, 816, 817, when we
discussed the extrinsic validity of wills, from the viewpoint of
place or country diba we may have a situation where the
testator is abroad, so he may comply with the law of the place
of execution or law of the place of his nationality if hes a
Filipino. There might be a situation when that will is to be
probated, and it is to be probated here in the Philippines, so
our courts will have to look into the laws of the foreign
country. For example the Filipino who executed the will in the
US, he did not follow the law of the Philippines but he
followed the law of the US, and its valid. So if that will is to
be probated in the Philippines, then our courts will have to
know what are the laws of the US insofar as the execution of
that will is concerned. And as we discussed before, our courts
do not take judicial notice of foreign laws. These laws must be
alleged and proved like any other fact, although there are
exceptions.
We also have the doctrine of Processual Presumption, when in
the absence of evidence as to what are these foreign laws,
they can be presumed to be the same as Philippine laws.
Now we may also have a situation where a person leaves
properties abroad and in the Philippines. His will may cover all
his proeprties all over the world. When you discuss your
Special Proceedings, in that particular case, the will, for
example he left properties in the US and in the Philippines,
has to be probated twice. In the places where he left
properties.
For example the executor or the administrator would now
want to dispose of the properties abroad in accordance with
the will. That will has to be probated abroad, in the place
where there are properties to be disposed of in the will. Once
that will is already probated abroad, is it automatic that our
courts will admit the will? Na okay naprobate naman na siya
sa US, diretso nalang nas a Register of Deeds para
makatransfer sa properties na naa sa Philippines. NO. That
same will probated abroad should also be probated in the
Philippines. That is what we call a reprobate proceeding.
If you still remember the case of Suntay vs. Suntay, the will
probated in China? So in the reprobate in the Philippines, the
proponent has to prove among others that the court abroad is
a probate court, what are the procedures of the court abroad
insofar as probate is concerned, etc. So that is in reprobate.
In Re: The Matter of the Petition to Approve
the will of Ruperta Palaganas
G.R. No. 169144 January 26, 2011
Here, the testator left properties abroad and also in the
Philippines. What they did was they directly filed a petition for
probate in the Philippines. It was contested because according
to the oppositors, there should be a prior probate abroad. And
once the will is probated abroad, there will be a reprobate
here in the Philippines, and these matters must be proved:
1.
2.
3.
the probate
proceedings
4.
5.
court
has
jurisdiction
over
the
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From the lectures of Atty. Lielanie Yangyang-Espejo
Ateneo de Davao College of Law | Tres Manresa 2015
Just take note that the will can be probated directly in the
Philippines without having to undergo prior probate before a
foreign court.
3.
4.
5.
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joint will is the exception to that rule. Since the law says even
if the will is valid in the place of execution, such joint will shall
not be recognized in the Philippines.
As to Filipino citizens, joint wills are not allowed. Even if it is
executed in a place which allows or disallows execution of
joint will. Absolutely, for Filipinos, joint wills are prohibited.
As to Foreigners, if he executes a will abroad and the laws
abroad recognizes joint will, thus, the will is valid as to the
foreigner. If a joint will is executed by him in the Philippines,
he can follow:
4.
1.
2.
3.
2.
1.
2.
3.
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public. If there are only 3 witnesses and one of them is a
notary public, the will is void because it falls short from
the minimum requirement as to the number of witnesses.
If there are 4 witnesses and one of them is notary public,
the will is still be valid.
Article 822. If the witnesses attesting the execution of a will
are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance of
the will. (n)
As we mentioned, the qualifications of a witness should be
present at time of the execution of the will. It does not matter
if before they were not be able to read or write but at the
time of the execution of the will, they can now read and write.
However, this will affect their qualification as they testify
during probate if the qualifications were lost. If they
eventually become insane, they cannot testify in the probate
proceeding. Take note, the qualifications of witnesses during
the execution of the will are different from the qualification of
witnesses during trial. The qualification during trial is provided
in the Rules of Court:
Rule 130. Section 20. All persons who can perceive or
perceiving, can make known their perception to others, may
be witnesses.
In addition, if it is a holographic will, we are not talking about
witnesses qualified under Article 820. But there are witnesses
needed for probate of holographic wills. The qualification is
that they can explicitly and positively declare that the
handwriting and signatures in the will are those of the
testator.
As already discussed, what if all the witnesses during the
execution of the notarial will are dead, insane or does not
reside anymore in the Philippines? Under the Rules of Court,
other witnesses will be allowed.
Article 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so far
only as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such person
so attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n)
In cases where a witness in a will is also a devise or a legacy
or an heir, is the will valid? The law says the witness is still
qualified but he forfeits his device, legacy or inheritance
(Personal experience story)
Remember that we are talking here of inheritance as to the
free portion. If you are a compulsory heir and also a witness,
you can still claim your legitime because the legitime is
provided for by law. You only forfeit those portions over and
above your legitime.
Take note also, if he is a witness and the person who can
claim is his spouse, or parent, or child, such claim is also
forfeited but he can still be a witness.
The reason why a person who witnessed forfeits his device,
legacy or inheritance is the exposure to conflict of interest. If
you are a witness, you are supposed to testify the due
execution of the will. If you know that you will receive
something from the will, then, you will really testify on its due
execution.
If there are more than 3 witnesses, the person sough to
witness or his spouse, or parent, or child does not forfeit his
or their device, legacy or inheritance as the law says, unless
there are 3 other competent witnesses in the will. If there are
4 witnesses and one of those is a legatee, devisee or heir, he
can receive the device, legacy or inheritance because even if
he joins as a witness, the will is still as there are at least 3
witnesses.
Article 824. A mere charge on the estate of the testator for
the payment of debts due at the time of the testator's death
does not prevent his creditors from being competent
witnesses to his will. (n)
The creditors can be witnesses of a notarial will. For example
in a will, there is a provision as to the payment of the debt of
the testator to the creditor and the creditor is also a witness
to the will. What are the effects of this? Will the creditor be
qualified to what is allocated to him? Is the will still valid?
The creditor is qualified to what is allocated to him and the
will is valid. The creditor, even if not stated in the will that the
will be paid, can still go after the estate of the deceased
because prior to the payment of legatees, devisees, etc, there
is a need to pay the obligations.
Please read the case of:
Caluya vs. Domingo
SC said: Indeed, no interest of any kind was created by the
will in favor of Segundino Asis, nor did it convey or transfer of
any interest to him. It simply mentioned a fact already
consummated, a sale already made. Even if, however, the will
had conveyed an interest to Segundino Asis, it would not have
been for that reason void. Only that clause of the will
conveying an interest to him would have been void; the
remainder could have stood and would have stood as a valid
testament.
But if the creditor, aside from the payment, is also given a
legacy or devise, then if he is a witness, he forfeits whatever
grant he may received from the will.
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