Wills; Codicil; Institution of Heirs; Substitution of Heirs
(2002)
By virtue of a Codicil appended to his will,
Theodore devised to Divino a tract of
sugar land, with the obligation on the part
of Divino or his heirs to deliver to Betina a
specified volume of sugar per harvest
during Betinas lifetime. It is also stated
in the Codicil that in the event the
obligation is not fulfilled, Betina should
immediately seize the property from
Divino or latters heirs and turn it over to
Theodores compulsory heirs. Divino
failed to fulfill the obligation under the
Codicil. Betina brings suit against Divino
for the reversion of the tract of land. a)
Distinguish between modal institution and
substation of heirs. (3%) b) Distinguish
between simple and fideicommissary
substitution of heirs. (2%) c) Does Betina
have a cause of action against Divino?
Explain (5%)
SUGGESTED ANSWER:
A. A MODAL INSTITUTION is the
institution of
an heir made for a certain purpose or
cause (Arts. 871 and 882, NCC).
SUBSTITUTION is the appointment of
another heir so that he may enter into the
inheritance in default of the heir
originality instituted. (Art. 857, NCC).
B. In a SIMPLE SUBSTITUTION of heirs,
the testator designates one or more
persons to substitute the heirs instituted
in case such heir or heirs should die
before him, or should not wish or should
be incapacitated to accept the
inheritance. In a FIDEICOMMISSARY
SUBSTITUTION, the testator institutes a
first heir and charges him to preserve and
transmit the whole or part of the
inheritance to a second heir. In a simple
substitution, only one heir inherits. In a
fideicommissary substitution, both the
first and second heirs inherit. (Art. 859
and 869, NCC)
C. Betina has a cause of action against
Divino. This is a case of a testamentary
disposition subject to a mode and the will
itself provides for the consequence if the
mode is not complied with. To enforce the
mode, the will itself gives Betina the right
to compel the return of the property to
the heirs of Theodore. (Rabadilla v.
Conscoluella, 334 SCRA 522 [2000] GR
113725, 29 June 2000).
Wills; Formalities (1990)
(1) If a will is executed by a testator who
is a Filipino citizen, what law will govern
if the will is executed in the Philippines?
What law will govern if the will is
executed in another country? Explain
your answers.
(2) If a will is executed by a foreigner, for
instance, a Japanese, residing in the
Philippines, what law will govern if the
will is executed in the Philippines? And
what law will govern if the will is
executed in Japan, or some other country,
for instance, the U.S.A.? Explain your
answers.
SUGGESTED ANSWER:
(1) a. If the testator who is a Filipino
citizen executes his will in the Philippines,
Philippine law will govern the formalities.
b. If said Filipino testator executes his
will in another country, the law of the
country where he maybe or Philippine law
will govern the formalities. (Article 815,
Civil Code}
SUGGESTED ANSWER:
(2) a. If the testator is a foreigner residing
in the Philippines and he executes his will
in the Philippines, the law of the country
of which he is a citizen or Philippine law
will govern the formalities.
b. If the testator is a foreigner and
executes his will in a foreign country, the
law of his place of residence or the law of
the country of which he is a citizen or the
law of the place of execution, or
Philippine law will govern the formalities
(Articles 17. 816. 817. Civil Code).
POSSIBLE ADDITIONAL ANSWERS:
a. In the case of a Filipino citizen,
Philippine law shall govern substantive
validity whether he executes his will in
the Philippines or in a foreign country.
b. In the case of a foreigner, his national
law shall govern substantive validity
whether he executes his will in the
Philippines or in a foreign country.
Wills; Holographic Wills; Insertions & Cancellations
(1996)
Vanessa died on April 14, 1980, leaving
behind a holographic will which is
entirely written, dated and signed in her
own handwriting. However, it contains
insertions and cancellations which are not
authenticated by her signature. For this
reason, the probate of Vanessa's will was
opposed by her relatives who stood to
inherit by her intestacy. May Vanessa's
holographic will be probated? Explain.
SUGGESTED ANSWER:
Yes, the will as originally written may be
probated. The insertions and alterations
were void since they were not
authenticated by the full signature of
Vanessa, under Art. 814, NCC. The
original will, however, remains valid
because a holographic will is not
invalidated by the unauthenticated
insertions or alterations (Ajero v. CA, 236
SCRA 468].
ALTERNATIVE ANSWER:
It depends. As a rule, a holographic will is
not adversely affected by Insertions or
cancellations which were not
authenticated by the full signature of the
testator (Ajero v. CA, 236 SCRA 468).
However, when the insertion or
cancellation amounts to revocation of the
will, Art.814 of the NCC does not apply
but Art. 830. NCC. Art. 830 of the NCC
does not require the testator to
authenticate his cancellation for the
effectivity of a revocation effected
through such cancellation (Kalaw v.
Relova, 132 SCRA 237). In the Kalaw case,
the original holographic will designated
only one heir as the only substantial
provision which was altered by
substituting the original heir with another
heir. Hence, if the unauthenticated
cancellation amounted to a revocation of
the will, the will may not be probated
because it had already been revoked.
Wills; Holographic Wills; Witnesses (1994)
On his deathbed, Vicente was executing a
will. In the room were Carissa, Carmela,
Comelio and Atty. Cimpo, a notary public.
Suddenly, there was a street brawl which
caught Comelio's attention, prompting
him to look out the window. Cornelio did
not see Vicente sign a will. Is the will
valid?
SUGGESTED ANSWERS:
a) Yes, The will is valid. The law does not
require a witness to actually see the
testator sign the will. It is sufficient if
the witness could have seen the act of
signing had he chosen to do so by casting
his eyes to the proper direction.
b) Yes, the will is valid. Applying the "test
of position", although Comelio did not
actually see Vicente sign the will,
Cornelio was in the proper position to see
Vicente sign if Cornelio so wished.
Wills; Joint Wills (2000)
Manuel, a Filipino, and his American wife
Eleanor, executed a Joint Will in Boston,
Massachusetts when they were residing
in said city. The law of Massachusetts
allows the execution of joint wills. Shortly
thereafter, Eleanor died. Can the said Will
be probated in the Philippines for the
settlement of her estate? (3%)
CIVIL LAW Answers to the BAR as Arranged by
Topics (Year 1990-2006)
SUGGESTED ANSWER:
Yes, the will may be probated in the
Philippines insofar as the estate of
Eleanor is concerned. While the Civil
Code prohibits the execution of Joint wills
here and abroad, such prohibition applies
only to Filipinos. Hence, the joint will
which is valid where executed is valid in
the Philippines but only with respect to
Eleanor. Under Article 819, it is void with
respect to Manuel whose joint will
remains void in the Philippines despite
being valid where executed.
ALTERNATIVE ANSWER:
The will cannot be probated in the
Philippines, even though valid where
executed, because it is prohibited under
Article 818 of the Civil Code and declared
void under Article 819, The prohibition
should apply even to the American wife
because the Joint will is offensive to
public policy. Moreover, it is a single
juridical act which cannot be valid as to
one testator and void as to the other.
Wills; Probate; Intrinsic Validity (1990)
H died leaving a last will and testament
wherein it is stated that he was legally
married to W by whom he had two
legitimate children A and B. H devised to
his said forced heirs the entire estate
except the free portion which he gave to
X who was living with him at the time of
his death.
In said will he explained that he had been
estranged from his wife W for more than
20 years and he has been living with X as
man and wife since his separation from
his legitimate family.
In the probate proceedings, X asked for
the issuance of letters testamentary in
accordance with the will wherein she is
named sole executor. This was opposed by
W and her children.
(a) Should the will be admitted in said
probate proceedings?
(b) Is the said devise to X valid?
(c) Was it proper for the trial court to
consider the intrinsic validity of the
provisions of said will? Explain your
answers,
SUGGESTED ANSWER:
(a) Yes, the will may be probated if
executed according to the formalities
prescribed by law.
(b) The institution giving X the free
portion is not valid, because the
prohibitions under Art. 739 of the Civil
Code on donations also apply to
testamentary dispositions (Article 1028,
Civil Code), Among donations which are
considered void are those made between
persons who were guilty of adultery or
concubinage at the time of the donation.
(c) As a general rule, the will should be
admitted in probate proceedings if all the
necessary requirements for its extrinsic
validity have been met and the court
should not consider the intrinsic validity
of the provisions of said will. However,
the exception arises when the will in
effect contains only one testamentary
disposition. In effect, the only
testamentary disposition under the will is
the giving of the free portion to X, since
legitimes are provided by law. Hence, the
trial court may consider the intrinsic
validity of the provisions of said will.
(Nuguid v. Nuguid, etal.. No. L23445, June
23, 1966, 17 SCRA; Nepomuceno v. CA, L-
62952,
9 October 1985. 139 SCRA 206).
Wills; Probate; Notarial and Holographic Wills (1997)
Johnny, with no known living relatives,
executed a notarial will giving all his
estate to his sweetheart. One day, he had
a serious altercation with his sweetheart.
A few days later, he was introduced to a
charming lady who later became a dear
friend. Soon after, he executed a
holographic will expressly revoking the
notarial will and so designating his new
friend as sole heir. One day when he was
clearing up his desk, Johnny mistakenly
burned, along with other papers, the only
copy of his holographic will. His business
associate, Eduardo knew well the
contents of the will which was shown to
him by Johnny the day it was executed. A
few days after the burning incident,
Johnny died. Both wills were sought to be
probated in two separate petitions. Will
either or both petitions prosper?
SUGGESTED ANSWER:
The probate of the notarial will will
prosper. The holographic will cannot be
admitted to probate because a
holographic will can only be probated
upon evidence of the will itself unless
there is a photographic copy. But since
the holographic will was lost and there
was no other copy, it cannot be probated
and therefore the notarial will will be
admitted to probate because there is no
revoking will.
ADDITIONAL ANSWERS:
In the case of Gan vs. Yap (104 Phil 509),
the execution and the contents of a lost or
destroyed holographic will may not be
proved by the bare testimony of witnesses
who have seen or read such will. The will
itself must be presented otherwise it shall
produce no effect. The law regards the
document itself as material proof of
authenticity. Moreover, in order that a will
may be revoked by a subsequent will, it is
necessary that the latter will be valid and
executed with the formalities required for
the making of a will. The latter should
possess all the requisites of a valid will
whether it be ordinary or a holographic
will, and should be probated in order that
the revocatory clause thereof may
produce effect. In the case at bar, since
the holographic will itself cannot be
presented, it cannot therefore be
probated. Since it cannot be probated, it
cannot revoke the notarial will previously
written by the decedent.
On the basis of the Rules of Court, Rule
76, Sec. 6, provides that no will shall be
proved as a lost or destroyed will unless
its provisions are clearly and distinctly
proved by at least two (2) credible
witnesses. Hence, if we abide strictly by
the two-witness rule to prove a lost or
destroyed will, the holographic will which
Johnny allegedly mistakenly burned,
cannot be probated, since there is only
one witness, Eduardo, who can be called
to testify as to the existence of the will. If
the holographic will, which purportedly,
revoked the earlier notarial will cannot be
proved because of the absence of the
required witness, then the petition for the
probate of the notarial will should
prosper.
Wills; Revocation of Wills; Dependent Relative
Revocation (2003)
Mr. Reyes executed a will completely
valid as to form. A week later, however, he
executed another will which expressly
revoked his first will, which he tore his
first will to pieces. Upon the death of Mr.
Reyes, his second will was presented for
probate by his heirs, but it was denied
probate due to formal defects. Assuming
that a copy of the first will is available,
may it now be admitted to probate and
given effect? Why?
SUGGESTED ANSWER:
Yes, the first will may be admitted to
probate and given effect. When the
testator tore first will, he was under the
mistaken belief that the second will was
perfectly valid and he would not have
destroyed the first will had he known that
the second will is not valid. The
revocation by destruction therefore is
dependent on the validity of the second
will. Since it turned out that the second
will was invalid, the tearing of the first
will did not produce the effect of
revocation. This is known as the doctrine
of dependent relative revocation (Molo v.
Molo, 90 Phil 37.)
ALTERNATIVE ANSWERS:
No, the first will cannot be admitted to
probate. While it is true that the first will
was successfully revoked by the second will
because the second will was later denied
probate, the first will was, nevertheless,
revoked when the testator destroyed it after
executing the second invalid will.
(Diaz v. De Leon, 43 Phil 413 [1922]).
Wills; Testamentary Disposition (2006)
Don died after executing a Last Will and
Testament leaving his estate valued at
P12 Million to his common-law wife
Roshelle. He is survived by his brother
Ronie and his half-sister Michelle.
(1) Was Don's testamentary disposition of
his estate in accordance with the law on
succession? Whether you agree or not,
explain your answer. Explain.
SUGGESTED ANSWER: Yes, Don's
testamentary disposition of his estate is in
accordance with the law on succession.
Don has no compulsory heirs not having
ascendants, descendants nor a spouse
[Art. 887, New Civil Code]. Brothers and
sisters are not compulsory heirs. Thus, he
can bequeath his entire estate to anyone
who is not otherwise incapacitated to
inherit from him. A common-law wife is
not incapacitated under the law, as Don is
not married to anyone.
(2) If Don failed to execute a will during
his lifetime, as his lawyer, how will you
distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: After paying the legal
obligations of the estate, I will give Ronie,
as full-blood brother of Don, 2/3 of the net
estate, twice the share of Michelle, the
half-sister who shall receive 1/3. Roshelle
will not receive anything as she is not a
legal heir [Art. 1006 New Civil Code].
(3) Assuming he died intestate survived by
his brother Ronie, his half-sister Michelle,
and his legitimate son Jayson, how will
you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson will be entitled
to the entire P12 Million as the brother
and sister will be excluded by a legitimate
son of the decedent. This follows the
principle of proximity, where "the nearer
excludes the farther."
(4) Assuming further he died intestate,
survived by his father Juan, his brother
Ronie, his half-sister Michelle, and his
legitimate son Jayson, how will you
distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson will still be
entitled to the entire P12 Million as the
father, brother and sister will be
Civil Code]. This follows the principle that
the descendants exclude the ascendants
from inheritance.
Wills; Testamentary Intent (1996)
Alfonso, a bachelor without any
descendant or ascendant, wrote a last will
and testament in which he devised." all
the properties of which I may be
possessed at the time of my death" to his
favorite brother Manuel. At the time he
wrote the will, he owned only one parcel
of land. But by the time he died, he owned
twenty parcels of land. His other brothers
and sisters insist that his will should pass
only the parcel of land he owned at the
time it was written, and did not cover his
properties acquired, which should be by
intestate succession. Manuel claims
otherwise. Who is correct? Explain.
SUGGESTED ANSWER:
Manuel is correct because under Art. 793,
NCC, property acquired after the making
of a will shall only pass thereby, as if the
testator had possessed it at the time of
making the will, should it expressly
appear by the will that such was his
intention. Since Alfonso's intention to
devise all properties he owned at the time
of his death expressly appears on the will,
then all the 20 parcels of land are
included in the devise.