Art. 774.
Succession is a mode of
acquisition by virtue of which the
property, rights and obligations to the
extent of the value of the inheritance of a
person are transmitted through his death
to another or others either by his will or
by operation of law.
 Legal definition of succession
 Pertains to devolution or transfer of
property, rights and obligations – so
called component of inheritance under
Art. 776
Art. 776. The inheritance includes all the
property, rights and obligations of a
person which are not extinguished by his
death.
 Property rights and obligations should
not be extinguished by death
Property
 All things that may be the subject of
appropriation
Dominion
 Control over the thing
Ownership
Art. 428. The owner has the right to enjoy
and dispose of a thing, without other
limitations than those established by law.
The owner has also a right of action against
the holder and possessor of the thing in
order to recover it. (348a)
Art. 712. Ownership is acquired by
occupation and by intellectual creation.
Ownership and other real rights over
property are acquired and transmitted by
law, by donation, by estate and intestate
succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of
prescription.
1
Succession
 mode of acquiring ownership
 Separate and distinct from other modes
of acquisition
 Could survive independently as a mode
of acquisition
Art. 777. The rights to the succession are
transmitted from the moment of the death
of the decedent.
 Moment of transmission, how rights are
transmitted
 Notarial and holographic will should be
in writing
Bases / Justifications of Succession (at
least know 3)
1) Pater familias
 Roman law concept
 It means head of a family
 It is the responsibility of the head of the
family to take care of the family even
after death
 Support the family even after death
2) Act of love
3) Satisfies the yearning of human beings
to become immortal
 Even if we die physically there is
something to remember as by
4) Promotes economic growth
 Prevents properties from being stagnant
5) Right of the family of co-ownership
 Family members have a right to the
properties of the deceased
 Who will transmit?
Art. 775. In this Title, "decedent" is the 2) Devisees
general term applied to the person whose (device)
property is transmitted through succession,  A specific gift of
whether or not he left a will. If he left a will, real property
he is also called the testator.
3) Legatees
Decedent (legacy)
 General term applied to a person whose  Specific gift of
property, rights, and obligations shall be personal property
transmitted
Can be used in both testate and intestate:
Consider what kind of succession  Compulsory heirs
If there is a Testate We call the  Are heirs entitled to legitime?
will succession decedent as
testator Legitime
 a fixed portion of the inheritance or the
If female: estate reserved by law to the so called
testatrix “compulsory heirs”
If there is no Intestate We call the  this cannot be impaired
will succession decedent
 Also intestate
called
succession
by
operation
of law

Who will receive? Even if not stated in the will the ½ of the
 Receipt should always be voluntary estate is reserved to the compulsory heir
 An inheritance can be repudiated
The free portion is the portion that can be
Heir subject to distribution
 General term applied to the person
receiving the inheritance Preterition
 if you did not reserve, the will is
Classification of an heir automatically annulled
Testate Intestate
3 Categories  Simply called an Compulsory heirs
1) Voluntary heir/ “intestate heir” Parents, grand parents
testamentary Children, grand children
heir
 One indicated or  The surviving spouse is considered a
stated in the will compulsory heir

2

Subject matter or object of transmission
Art. 776
 Inheritance
 Property, rights, obligations not
otherwise extinguished by death
Operative fact: death
 Without the decedent’s death, there is no
transmission
Death
 Total cessation of life
 Bodily systems are no longer
functioning
 There is no such thing as temporary
death
Art. 777 – From the moment of death
property, rights and obligations are
transmitted
Body – cannot be inherited except if there is
a will
Death – either actual or presumptive death
Actual death – body as the physical proof
Presumptive death
 Arts. 390, 391
 Can either be ordinary or extra-ordinary
 There is an element of absence
Art. 390. After an absence of seven years,
it being unknown whether or not the
absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead
for the purpose of opening his succession
til after an absence of ten years. If he
disappeared after the age of seventy-five
3
years, an absence of five years shall be
sufficient in order that his succession may
be opened.
Art. 391. The following shall be presumed
dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aeroplane
which is missing, who has not been heard
of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who
has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of
death under other circumstances and his
existence has not been known for four
years.
Ordinary
 10 years of ordinary absence will be
sufficient to declare him as someone
who presumptively died
Special
 If you were absent and you are 75 years
old
 Ordinary absence of 5 years shall be
sufficient to declare him as dead
Art. 391: 3 Circumstances
1) A person on board a vessel lost – 4 years
of absence
2) Took part in war – 4 years of absence
3) In danger of death – 4 years of absence
When will we consider the person who
disappeared to have been presumptively
dead?
 Consider the end of the period

Situation:
A person boarded a plane Aug. 24, 2015 –
presumptively dead Aug. 24, 2019
For purposes of opening succession under
extraordinary circumstances:
 It would start at the start of his
disappearance
 Very first day of disappearance
Rules on survivorship
If there is doubt regarding 2 persons as who
died first
 Consider: age, sex, and strength of the
person
Disputable presumptions (Rule 131: jj)
1) If the persons are both under 15, the
older one has deemed to have survived
2) If both persons are over 60 years of age,
the younger one survived
3) If one is under 15 and the other is above
60, the former survived
4) If the person is above 15 and the other
under 60, the other person is male, the
male is deemed to have survived
5) If both persons same sex, older will
survive
6) If one be under 15 or over 60, and the
other between those ages, the latter is
deemed to have survived.
Do we apply survivorship as far as
succession?
 No, Rule 131 does not apply
 The fact of death should be proven
 As far as succession, survivorship does
not apply
Rule131 (kk)
 Give proof to who died first
 In the absence of proof to who died first,
the presumption is they died at the same
time
4
Result if both simultaneously died?
 Succession will not take place as far as
the parties who died
4 Basic elements of Succession
1) Subjective element
 Succession requires that there must be a
decedent and an heir
2) Objective element
 Pertains to art. 776
 There should be an inheritance
comprising of property, rights and
obligations
3) Identity of Objects
 The same rights, properties, and
obligations are transferred from the
decedent to the heir
4) Change of Subjects
Transfer of property, rights and obligations
to another property
Can a corporation be considered an heir?

Different Kinds of succession
1) As to the moment of transmission
 Succession is either mortis causa or inter
vivos
Mortis causa
 Will take place by virtue of the death of
the decedent
Inter vivos
 Will happen during the lifetime of the
parties
 This is not succession but donation
 2) As to the extent of the right involved
2 Kinds:
a) Universal
 Does not specify the particular
inheritance to be inherited
 Remains to be a valid disposition
e.g.
the will states to give all properties to my
son
 Can be entire, alequot/ pro indiviso,
partition
 1/5 of the present and also future
properties will be given to the future
spouse
 This was not carried over to the Family
Code, hence, Art. 130 is no longer
effective
 Thus, there is no such thing as
contractual succession in the present
DECEDENT
Testate Intestate

Pro indiviso – no need to specify the share Testator “Intestate”

b) Particular
 Applies to legacies and devices HEIR
 Particularly specifying the personal
property to be inherited Testate Intestate
 Real and personal property should be
particular described to avoid confusion Compulsory Heirs

3) As to Cause a) Voluntary/ Testamentary

a) Compulsory Succession
 Will take place because of the legitimes Intestate/ legal heirs

b) Testamentary b) Devisees
 By reason of a notarial or holographic
will c) Legatees

c) Intestate Art. 854

 Succession by operation of law
d) Mixed Succession
 Party by will and party by operation of
law
 Apply if there are properties not
specified
 Act or omission of one, some or all of
the compulsory heirs
 It will annul the institution of heirs
 As if you did not institute a will
 The will shall remain valid as long as it
is not inofficious meaning it will not
impair the legitime

Is there such a thing as a contractual
succession in the Philippines?
 In the past, we had contractual
succession: collected by reason of pre-
nuptial agreements
 Art. 130 – element of reservation, future
properties
Art. 886. Legitime is that part of the
testator's property which he cannot dispose
of because the law has reserved it for certain
heirs who are, therefore, called compulsory
heirs. (806)

5
 Dual Status of an heir
How will you distinguish a voluntary heir
from devisees and legatees
 It can be found under Art. 854
Legitime
 Portion of property to be reserved to
compulsory heirs
Compulsory heirs
Art. 887. The following are compulsory
heirs:
(1) Legitimate children and
descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing,
legitimate parents and ascendants,
with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children,
and natural children by legal fiction;
(5) Other illegitimate children
referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4,
and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate children
of the three classes mentioned, shall inherit
from them in the manner and to the extent
established by this Code.
 (4) No longer applicable as far as
children, because they are only classified
as legitimate or illegitimate
6
Conspirators of a crime cannot inherit from
each other
Dual Status
 An heir can be a compulsory heir as far
as the legitime is concerned and he is
also considered as a voluntary heir as far
as the free portion is concerned
Intestate or legal heirs
 They always inherit by way of universal
succession
GR: all properties rights and obligations are
transmissible unless they fall under the
recognized exceptions which are:
SIMPLIFIED:
1) Strictly personal acts
2) By reason of stipulation
3) By provision of the law
Non-transmissible:
1) Strictly personal acts
Examples:
Inheritance of family relations, parental
authority, right to vote, qualifications,
criminal responsibility
Can civil liability be transmitted?
 Under Rule 111, it depends on the stage
of the proceedings
If the accused died before arraignment
will the civil liability survive?
Yes, but if the death is after arraignment the
ruling in Pp. vs. Bayotas will apply.
2) By reason of stipulation
Ex. Partnership agreement is based on
fiduciary trust therefore certain rights cannot
be transmitted by way of succession
3) By provision of the law
Ex. A contract of agency and commodatum
Cannot be transferred by way of
succession:
Contracts of:
1) Usufruct
2) Commodatum
3) Mutuum
4) Agency
Principal and agent is considered as one
person wherein the act of the agent binds the
principal
Money debts are considered as obligations
but they are not transmissible to the heirs to
the heirs; but money debts are chargeable to
the estate
Gross estate
 Sum of the interest over the estate before
deductions
Money debts should be deducted first, after
deducting the debts we now have the net
estate which is transmissible to the heirs
If the decedent’s estate is not sufficient for
the debt, the heirs cannot be held liable as to
their personal capacity
Death is the operative fact that would put
succession into play
Art. 777. The rights to the succession are
transmitted from the moment of the death of
the decedent.
 Nature of transmission is by operation of
law
 No need for any act of the heirs that they
are entitled to succession
Inchoate right
 Mere right in expectancy
 Right in esse
7
 Only completed by death
Elements of Art.777 / Transmission
1) Death
 Can either be actual or presumptive
2) The property rights and obligations
are transmissible
 Not otherwise extinguished by death
 Must be within the commerce of men:
property should be lawful and licit
 Must be owned by the decedent
3) The transferee must be alive, willing
and capacitated to inherit
 No predeceased, no incapacity, no
repudiation
 Repudiation will also retroact from the
moment of death
Immediate disposition
 The heirs will be automatically entitled
to the inheritance from the moment of
death
 Only classification: before immediate
disposition will happen, there is no debt
existing in the estate
SITUATION:
XYZ siblings are the heirs of A (father)
leaving a parcel of land with a value of
P12M. Before the death of A, can XYZ sell
the whole or any part of the property?
 No, there was no vested right before the
death
How about after the death of A, can X sell
his share without the consent of Y and Z?
 From the moment of death, a state of co-
ownership had began wherein they are
entitled to their ideal or pro indiviso
share or so called aliquot share
 Yes, X can sell his ideal share but
because of the state of co-ownership X
cannot sell the whole property

Is there a need for a proof of declaration
of heirship?
 Article 777 does not require that for one
to prove his heirship
 However, this is not a prohibition for
anyone to challenge the heirship
SITUATION:
A sells his aliquot share, the buyer then asks
what particular portion does he own?
 If there is an agreement to the share: NO
PROBLEM
 Leaving a pro indiviso share is valid to
convey the property but it must be
subject to conciliation and division
Co-ownership is not favored upon
Probate
 Act of proving extrinsic validity of a will
 Not necessary under Art. 777 but subject
to final conciliation and order of the
probate court
Lifeblood doctrine
 You need to pay the estate tax first
before you can take real property for
purposes of determining the value
What period do we consider in paying
estate taxes?
 Time of death of decedent, even if the
heirs only takes possession later
Continuity of possession
Tapping of possession
 Possession in good faith and bad faith
 10 years good faith; bad faith 30 years
Art. 533. The possession of hereditary
property is deemed transmitted to the
heir without interruption and from the
8
moment of the death of the decedent, in
case the inheritance is accepted.
One who validly renounces an inheritance is
deemed never to have possessed the same.
Art. 781. The inheritance of a person
includes not only the property and the
transmissible rights and obligations
existing at the time of his death, but also
those which have accrued thereto since
the opening of the succession.
 The heir also owns the fruits
The heirs can sue and be sued in relation to
the estate
 If there is no administrator of the estate,
the heirs may administer
 The law in effect at the time of death of
the decedent should control the
disposition of the estate
Art. 2263. Rights to the inheritance of a
person who died, with or without a will,
before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by
other previous laws, and by the Rules of
Court.
The inheritance of those who, with or
without a will, die after the beginning of the
effectivity of this Code, shall be adjudicated
and distributed in accordance with this new
body of laws and by the Rules of Court; but
the testamentary provisions shall be carried
out insofar as they may be permitted by this
Code.
Therefore, legitimes, betterments, legacies
and bequests shall be respected; however,
their amount shall be reduced if in no other
manner can every compulsory heir be given
his full share according to this Code.
 TESTATE SUCCESSION
 Also called testamentary succession
 Succession by will
 There is a will
2 Kinds of Will
1) Notarial will
2) Holographic will
A will is a mere statutory right as compared
to a natural right
 A right provided by law
The making of a will must be exercised by
the requirements provided for by law
 Should be strictly complied with
 However, the notion that the formalities
should be strictly complied with is
tempered by a more liberal view known
as the MODERN TENDENCY IN
INTERPRETING WILLS
Modern Tendency in Interpreting Wills
 Under the principle that testacy is
preferred over intestacy
 Substantial compliance is enough
 Apply in a case to case basis
If the making of a will is a statutory right, it
must also respect the law regarding wills
 Legitimes must be respected
 Making of a will is not absolute
Preterition
 The omission by a testator of some one
of his heirs who is entitled to a legitime
Testacy is preferred over intestacy
 It is better to have a will than to have no
will at all
If there are doubts, the doubt should be
resolved in favor of the validity of the will
because the law favors the desires of the
decedent
9
Formalities – extrinsic validity
Extrinsic – genuineness
Intrinsic – merit the rules on legitime
What if a will is extrinsically valid but not
intrinsically valid?
 Will is void
What is a will?
 Defined under article 783
Art. 783. A will is an act whereby a
person is permitted, with the formalities
prescribed by law, to control to a certain
degree the disposition of this estate, to
take effect after his death.
4 Important phrases under 783
1) Formalities prescribed by law
 Rights are only made available only if
formalities are complied with
 Testator should comply with formalities
but the liberal method of interpreting
wills or the modern tendency is now
being applied
2) To control to a certain degree
 The making of a will as a statutory right
is not absolute because of the rules on
legitime
3) Disposition of estate
A will basically disposes the estate of the
testator. Is this rule absolute?
 GR: Yes
Exception: Case of Sanjo vs. Reyes
The decedent executed a kasulatan ng pag-
aalis mana wherein there is only 1 provision
in the document
 Aking inaalisang mana ang aking anak
dahil siya ay lapastangan sa akin
 SC held that a document or instrument
which disinherits a compulsory heir will
be regarded as a will
 Maltreatment of a testator is a ground for
disinheritance
4) A will should take effect after the
death (Art. 777)
 Before the death of the testator, any right
is a mere inchoate right or a right in
mere expectancy
There is no law stating that a will should be
put on paper
CHARACTERISTICS OF A WILL (784
– 787)
1) The making of a will is strictly a
personal act
 Refers to non-delegability of the
execution of the will
Under Art.783, A will is an act whereby a
person is permitted, with the formalities
prescribed by law, to control to a certain
degree the disposition of this estate, to take
effect after his death.
Is the rule absolute that you cannot delegate
the making of a will?
 No, because you need to distinguish act
of disposition form mechanical acts
Acts of disposition
 Has something to do with the extrinsic
merit of disposition
Mechanical act
 Can be the single act of typing a will
 Valid if mere mechanical act
If a third person decides on how the
properties are distributed
10
 Not valid under Article 785 but under
786 specific property may be entrusted
to a third person.
Art. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name,
cannot be left to the discretion of a third
person
Art. 786. The testator may entrust to a third
person the distribution of specific property
or sums of money that he may leave in
general to specified classes or causes, and
also the designation of the persons,
institutions or establishments to which such
property or sums are to be given or applied.
 Causes referred to are charities and
institutions
Art. 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or
not it is to be operative.
2) Must be free and intelligent, it should
be free from vices of consent
Vices: FUMVI (Article 839 par. 3-6)
a) Violence
b) Intimidation
c) Fraud
d) Undue influence
e) Mistake
3) A will disposes a property
 Exception: Sanjo vs. Reyes – Act of
disinheritance
4) Before the death of a testator, a will is
revocable
 Before the death of the testator, he
remains to be the owner of the
properties, rights and obligations and he
 can still change his mind, he can revoke
his will
 If the will is titled as irrevocable – not
allowed
 Art. 777 – operative act is death, without
death; no succession
5) Formal or solemn act
 A will whether notarial or holographic
shall comply with the formalities
required by law in order to be valid
6) Executed by a testator who possesses
testamentary capacity
7) There should be animus testandi
 There is an intention to make a will
According to a CA case wherein:
 Relatives of Jose Rizal say they are
entitled to some part of his properties
 The parents say they are the only one
entitled they claim that there was a part
in me ultimo adios which states that: to
you I leave everything my parents my
love
 CA held that the artistic work cannot be
considered a will, it is a mere artistic
work, in that point there is no indication
that Jose Rizal had animus testandi
 Therefore it should only be considered
as an artistic work
8) Making of a will is a unilateral or an
individual act
 Joint will under Philippine jurisdiction –
not allowed under Article 818
 In a will there should only be 1 testator
Art. 818. Two or more persons cannot make
a will jointly, or in the same instrument,
either for their reciprocal benefit or for the
benefit of a third person.
11
9) Making of a will is an act mortis causa
 Takes effect upon the death of the
testator
How do we construe or interpret a will?
READ Articles 788-794
 Different rules on how to interpret a will
Art.788
 Explains the concept of primacy of a
will
 Closely related to Art.791
Primacy of a will
 Testacy is preferred over intestacy
 If there is a will, there is an instruction
on how to distribute the properties of the
testator
In intestate succession where there is no
will, there is only a presumption on how to
distribute the properties
 This leads to unfairness in the
distribution of properties
In case of doubt, an interpretation that the
will is valid shall be preferred than having
no will at all
Art. 789. When there is an imperfect
description, or when no person or property
exactly answers the description, mistakes
and omissions must be corrected, if the error
appears from the context of the will or from
extrinsic evidence, excluding the oral
declarations of the testator as to his
intention; and when an uncertainty arises
upon the face of the will, as to the
application of any of its provisions, the
testator's intention is to be ascertained from
the words of the will, taking into
consideration the circumstances under which
it was made, excluding such oral
declarations.
Art.789
 Pertains to ambiguities in the will
 Ambiguity: It is equivocal or something
not clear
2 Kinds of ambiguities
1) Latent
 Kind of ambiguity that does not appear
on the face of the will
 Something where there is nothing wrong
in the phrases of the will because it is
hidden
2) Patent
 Ambiguity which appears on the face of
the will itself
 There is something wrong just by
looking at the words and phrases of the
will
How will we resolve these ambiguities?
Rules of Construction:
1) For both latent and patent, you can
always consider extrinsic or extraneous
evidence in order to determine the intent
of the testator
2) Consider the words of the will or the
circumstances under which the will was
made
3) You cannot use as evidence the oral
declarations of the testator
 Refers to oral declarations during the
testator’s lifetime
 Ex. Calling of a witness
 Not allowed by law since it is unfair
because a dead person cannot
confirm or deny the statement of the
witness, this is mere hearsay
4) The words used in a will under Art.790
should be taken in its ordinary or
grammatical sense and not its legal or
technical sense
12
Wills are executed in a state of secrecy
Art. 792. The invalidity of one of several
dispositions contained in a will does not
result in the invalidity of the other
dispositions, unless it is to be presumed
that the testator would not have made
such other dispositions if the first invalid
disposition had not been made.
 Rule on Severability
 In the event that one provision of the
will is void, the remainder shall remain
valid unless one provision is dependent
on the other as intended by the testator
Art. 793. 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.
 POTENTIAL BAR QUESTION
 Art.793 talks about after acquired
properties
 Somehow contrary to Art.777
 Because under Art.793, the after
acquired properties are not included in
the will
According to Balane:
 To reconcile Art.777 and 793, we need
to apply 793 to legacies and devisees
only
 The other properties not indicated in the
will shall be subject to intestate
succession
 Art.793 therefore only applies to
devisees and legacies
Art. 794. Every devise or legacy shall
cover all the interest which the testator
could device or bequeath in the property
disposed of, unless it clearly appears from
the will that he intended to convey a less
interest.
Problem:
What if the testator says I will give my land
to my friend, Maria. Upon examination of
the land, there is a 50-storeys condo
Does it include the condo?
 Yes, because it includes all interest of
the testator unless it clearly appears
Testamentary Capacity
Do our laws on succession give a definition
on testamentary capacity?
 No definition as far as our own law is
concerned
In other jurisdiction, they limit it to the
mental faculties/ capabilities sufficient to a
person making a will
 Purely mental act/ process of making a
will
 Even a child may execute a will as long
as the child has mental faculties
In the Philippines, testamentary capacity is
not a mental process because we have
certain elements
In the Philippine if we say testamentary
capacity it involves 2 kinds which are active
or passive
Active
 Simply refers to the capacity to make a
will
Passive
 Capacity to receive property under the
will
Active testamentary capacity is sufficiently
explained by the Civil Code
Mental faculties refer to soundness of mind
13
Elements of Testamentary Capacity
1) The person is not prohibited by law to
make a will
Persons under civil interdiction can execute
a will
A person who is above legal age but under
guardianship can also execute a will not
otherwise prohibited by law provided the
ward has sufficient mental capabilities to
execute a will
Can a corporation or other juridical
entity execute a will?
 No, because only a natural being is
endowed with metal capabilities, it does
not have a mind of its own
2) The person is at least 18 years of age
of either sex
Art. 797. Persons of either sex under
eighteen years of age cannot make a will.
 What we follow is the sex at birth
Articles 802 and 803 are mere surplusage
If a person is a minor, he can still transfer
his property by way of succession although
it is only by way of intestate succession
 Minors are disqualified to make a will
3) Soundness of mind
 Simple description: Pertains to the
normal condition of the human mind
 It is that state where the mental state or
faculties of perception and judgment are
ordinarily developed and are not
impaired by insanity or other mental
disorder
Insanity can cause unsoundness of mind
2 ways wherein soundness of mind can be
defined (Art.799):
1) Negative definition
 Art. 799. To be of sound mind, it is not
necessary that the testator be in full
possession of all his reasoning
faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered
by disease, injury or other cause.
Mere old age is not sufficient to conclude
that a person is not of sound mind
Cases where it is not sufficient to conclude
unsoundness of mind
a) Paralysis
b) Physical infirmities
c) Feeblemindedness
d) Weakness of memory
e) Ordinary sickness
2) Positive definition (Art.799 2nd
paragraph)
 It shall be sufficient if the testator was
able at the time of making the will to
know:
a) The nature of the estate to be disposed
of
b) The proper objects of his bounty, and
c) The character of the testamentary act.
POSITIVE DEFINITION SIMPLIFIED:
a) He knows the properties he is disposing
 There is no requirement that he
remembers every property to be
disposed of
 No need for the testator to itemize
everything
b) The natural object of affections
c) The testator knows that he is disposing
his properties, transferring it to another
person upon his death
14
Art. 800. The law presumes that every
person is of sound mind, in the absence of
proof to the contrary.
The burden of proof that the testator was not
of sound mind at the time of making his
dispositions is on the person who opposes
the probate of the will;
but if the testator, one month, or less, before
making his will was publicly known to be
insane, the person who maintains the
validity of the will must prove that the
testator made it during a lucid interval.
As far as testamentary capacity and
formalities of the execution of a will
 We consider the law at the time of the
making of the will
Subsequent capacity will not validate a will
which was made when the testator was not
capable
Supervening incapacity does not invalidate
an effective will
 Art. 801. Supervening incapacity does
not invalidate an effective will, nor is
the will of an incapable validated by
the supervening of capacity.
If you do not comply with the requirements
of testamentary capacity at the time of the
execution of the will, it is invalid
 CRAZY QUESTIONS in testamentary
capacity:
1) Testator is on the influence of liquor
during the execution of the will, is the
will valid?
 It depends on the state of intoxication
2) What if the person who executed a
holographic will, committed suicide
after 1 minute from signing the will
 Use the negative and positive definition
to argue if the will is valid or not
3) A is insane, can he execute his will
during his lucid interval?
 Yes, because during a lucid interval you
regained your mental faculties or
capabilities
TESTATE SUCCESSION
 Succession by reason of a will
2 kinds of wills under Philippine
jurisdiction:
a) Notarial will
 Ordinary will/ attested will
b) Holographic will
 Handwritten will
For both wills there are certain formalities
that should be complied with
 It has something to do with extrinsic
validity
Extrinsic validity – Genuineness, due
formalities in a will
Why are the formalities of a will
important?
1) To avoid fraud
2) To avoid alterations
3) To prove genuineness of a will
15
Formalities which are applicable to both
kinds of wills:
1) A will should be in writing
 No such thing as oral will
 Used in its generic sense
As far as notarial wills it could be
handwritten, computerized or typewritten
As far as holographic wills, it should be
written by the testator in his own hand
writing, dated and signed by the testator
himself
2) It should be written in a dialect or
language known to the testator
It is an automatic presumption that the
testator knows the dialect wherein his will
was written
As far as wills are concerned there is no
official dialect or language
Any dialect may be used in wills as long as
the testator knows it
It is also presumed that the testator knows
the language or dialect in his habitual place
of residence
The fact that the will is in writing and the
language is known to the testator, there is no
need to state that these formalities were
followed. The requirement on language
should be connected with another formality
which pertains to witnesses
Is there a need for the 3 attesting and
subscribing witnesses to know the
language of the will?
 No because their responsibility is to
witness and attest to the fact that the
testator signed the will in their presence
3) It should be signed by the testator at
the end
 “At the end” means the logical end of
the document which is after all the
testamentary dispositions in a will
 Purpose is to ensure there will be no
further additions in the will
4) It should be with an attestation clause
 Attestation clause should be interpreted
to the witnesses if they don’t know the
language or dialect of the will
Formalities of a notarial will
1) Must be in writing
2) Executed in a language known to the
testator
3) Must be signed by the testator
 certain qualifications under Art.805
Art. 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself or by the
testator's name written by some other person
in his presence, and by his express direction,
and attested and subscribed by 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
16
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.
What if the testator cannot sign the will?
 If not possible, the remedy is for the
other person to write the name of the
testator in his presence and by his
express directions
 Testator should be present
 Name should be written in full
Signature
 Distinctive mark identifying a person
 Unique to a person
 Cannot be delegated to another person
What if the testator directed the signing
through skype?
 Atty. Bonifacio’s view: Allowed by
electric testimony which also allowed by
court
 But the communication should be
recorded
Why is it valid for the testator to direct
other persons to write his name?
1) Practical reasons
2) Through the contract of agency
Act of an agent is the act of the principal
What if the 3rd person is also an attesting
and subscribing witness?
 Not allowed by law unless there are
more than 3 witnesses in a notarial will
 There is no maximum but there is a
minimum which is 3 witnesses
Connect with another formality which is it
should be notarized by a notary public
which should be a lawyer
What if the 3rd person is the same lawyer
that will notarize?
 Not allowed because a notary public
cannot acknowledge his own acts which
is not allowed in the rules of notarial
practice
 This is the same reason why the lawyer
cannot be a witness to the will
Should the 3rd person write the name of the
testator, that fact should be stated and
described in the attestation clause which is
also another formality
Can a testator put his thumb mark as his
signature?
 A thumb mark can be qualified as a
signature as long as it is used as a
customary signature of the person
What if the signature is a + or X mark, is
it valid?
 Discussed under Garcia vs. Lacuesta
 SC held an X or + mark cannot be
considered a valid signature because it
has no distinctive feature
 It’s very easy to imitate and not
trustworthy
No need for an agent to put his name in the
notarial will
Should another person write, it must be
attested in the attestation clause
4th Formality
4) Must be attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one
another.
Attestation
 Act of the senses
 Actual act of witnessing the testator
signing the notarial will
17
 Witnesses must see the testator signing
the notarial will
Subscription
 Act of the hand
 Actual signing of the will by the
witnesses
 Process of identification – importance of
signing
In case proof of identification is required
in court
1) You must identify your signature as a
witness
2) Identify the signature of your co-
witnesses
3) Also identify the signature of the testator
if there is opposition in the probate
proceeding
Qualified witness
 Someone who possesses certain
requirement to become a witness in the
execution of a will
Credible witness
 Credibility is the state of being
believable or worthy of credibility
 Credibility is subject to the discretion of
the judge but the qualifications are not
Qualifications of a qualified witness (Arts.
820 and 821)
Witness should be:
1) Of sound mind
2) 18 years of age or more
3) Witness should not be blind deaf or
dumb – they cannot attest
4) Able to read and write
 No formal education requirement to
become a witness only requirement
is literacy
5) Domiciled in the Philippines
 No requirement that a witness should
be a Filipino citizen, it only requires
 habitual place of residence with the
intent to return
6) Of good moral character and not
convicted of falsification, perjury or
offering a false testimony
Art. 820. Any person of sound mind and of
the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and
write, may be a witness to the execution of a
will mentioned in Article 805 of this Code.
Art. 821. The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in the
Philippines;
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony.
The witness need not know the contents and
language of the will but if the language of
the will is not known to the 3 witnesses, the
attestation clause should be interpreted
If you are one of the 3 instrumental
witnesses and you are also a beneficiary to
the will, you are disqualified as a witness in
order to prevent the possibility of undue
influence
 Solution: invite more than 3
witnesses, then one can become a
beneficiary and a witness
The 3 witnesses should be neutral or have no
interest in the will
More than 3 witnesses are also needed when
one witness is directed to sign the will in
behalf of the testator
18
BAR QUESTION:
The testator executed a notarial will in
which he invited 3 witnesses. The witnesses
did not see each other sign the will. Are the
formalities in signing a will complied with?
 No, because there was no face 2 face
interaction during the signing of the
will
 There is a defect in the formality
when the signing was not seen
 Hence, the signing is defective or
void if the possibility of signing the
will in the presence of one another
was restricted
However, in another case the court held that
mere possibility of seeing is enough to
conclude that the testator signed in the
presence of one another
 If there is physical obstruction then there
is a defect
5th Formality
5) Testator and the witnesses must sign
each and every page of the notarial
will in the left margin except the last
 Concept of marginal signatures
 To prevent unauthorized additions in
pages
What if the signature is not in the left
margin?
 The provision should be liberally
construed according to various cases of
the SC
 The signatures could be at the top,
bottom as long as the marginal
signatures exists as a fact
6) All pages of the will must be
correlatively numbered in letters
placed on the upper part of each page
 To prevent fraud, substitution or detect
any pages missing in the will
 can be liberally construed as long as the
manner of indicating the pages is
uniform, sequential and logical
7) Attestation clause
 Principally an act of the attesting
witnesses
 A certification coming from the 3
witnesses certifying that the notarial will
was executed in accordance with the law
and all formalities was followed by the
testator and all witnesses
 Gives affirmation that all requirements
were complied with
 Even if witnesses are more than 3, they
should still sign the attestation clause
 Actual documentary evidence proving
that all formalities of the will were
complied with
 After the attestation clause the witnesses
need to sign, mere marginal signatures
shall not suffice
Contents – 4 Important Parts of the
Attestation Clause
1) The attestation clause should state the
number of pages used upon which the
notarial will was written
2) The fact that the testator signed the
notarial will and every page thereof or
caused some other person to write his
name under his express instruction
3) The fact that the testator signed in the
presence of the 3 witnesses
4) The fact that the 3 witnessed and signed
the will in all pages the pages thereof
The pages must be stated to safeguard the
notarial will from substitution of pages
 To prevent increase or decrease in the
pages
The act of the testator signing the attestation
clause is principally intended to authenticate
the notarial will
19
 The signing of the testator of the
attestation clause, however, is not
required
The signing of the attestation clause by the
testator will not render the will as void but it
will be treated as a mere surplusage
 It will not affect the validity of the will
and the attestation clause
The witnesses need to sign the notarial
will 3 times:
1) After the testamentary disposition
2) Marginal signatures
3) Attestation clause
 Immediately after or bottom
SC case:
Where the bottom of attestation clause was
not signed, however, at the margin there was
a signature
 Not sufficient because there should be
specific signatures as far as the
attestation clause is concerned
Is it required that the language used in
the attestation clause is known to the
testator?
 No, there is no need for the testator to
know the language also with the
witnesses
 However, as far as the witnesses are
concerned the attestation clause should
be interpreted to them if written in a
language not known to them
No attestation clause renders the will void
What if 1 of the contents of the attestation
clause is omitted, will the will be
invalidated?
 It depends on the kind of omission
According to the case of Cañada vs. CA
 If the omission can be supplied by the
examination of the will itself without
resorting to extrinsic evidence, then the
omission can be forgiven
 Ex.
1) It failed to say the number of pages
of the will
2) The fact that it was signed by the
testator and the 3 witnesses
What if what was omitted is the statement
that states the witnesses witnessed and
signed the will and all the pages thereof in
the presence of the testator and of one
another?
 Cannot be determined by merely
examining and reading the will
 It is an actual issue
If extrinsic evidence must be used in which
it cannot be supplied by the will itself
 The will is void
The 3 witnesses shall appear if there are
oppositions regarding the will
Art. 809. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or
in the language used therein shall not
render the will invalid if it is proved that
the will was in fact executed and attested
in substantial compliance with all the
requirements of Article 805
Art.805
 Talks about substantial compliance but
it does not talk about substantial
compliance of the whole will
 It only refers to substantial compliance
in the attestation clause
Defects as to language, dialect, and form
20
 If it will not affect the substance of the
will, such defect will not render the will
as invalid
What if the notarial will is only 2 pages,
does it need compliance with the law with
regards to pagination?
 No, the court explained it under the case
of Macapinlac
8th formality:
Art. 806. Every will must be
acknowledged before a notary public by
the testator and the witnesses. The notary
public shall not be required to retain a
copy of the will, or file another with the
Office of the Clerk of Court.
8) Must be acknowledged by a notary
public (Art.806)
 Requires that the will must be
acknowledged by a notary public before
the testator and witnesses
Who is a notary public?
 Considered a public official and a
witness
 Is an official who witnessed and
subscribed to the truthfulness and
voluntariness of an act
Qualifications of a notary public under
the New Rules on notarial practice:
1) Must be over 21
2) Resident of the Philippines for at least 1
year in the city or place where he is
commissioned
3) Filipino citizen
4) Member of the Philippine bar in good
standing – meaning not suspended or
disbarred
5) Must not be convicted of a crime
involving moral turpitude
Jurat
 Called the subscribed and sworn part
 Swearing under oath that all statements
are truthful to a public officer
 Not required for purposes of a notarial
will
Acknowledgment clause
 All contracts particularly conveyance
need the acknowledgment clause
 Purpose is to see to it that a particular
document is free from vices of consent
and that is free and intelligent
Is there a requirement that the notary
public to see to it that the testator signs in
the presence of the witnesses?
 No need for the notary public to be
present during actual execution
 Because the acknowledgment can be
done during a different date from the
signing of a will but it should be within a
reasonable time
Should the will be acknowledged at a
different date, is there a requirement that
the testator and witnesses appear before
the notary public at the same time?
 No need for them to appear at the same
time but they must really appear before
the notary public
An acknowledgment makes a private
document public
All documents should be submitted to the
Clerk of Court except a notarial will, the
purpose is to preserve the confidentiality of
a will
A notarial will retains its characteristic as a
private document but if it becomes evidence,
it becomes a public document
Art.806
21
 Date, place of execution need not be
stated in the will
 No need for the notary public to read to
the witnesses the will
Art. 807. If the testator be deaf, or a deaf-
mute, he must personally read the will, if
able to do so; otherwise, he shall designate
two persons to read it and communicate
to him, in some practicable manner, the
contents thereof.
Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of
the subscribing witnesses, and again, by
the notary public before whom the will is
acknowledged.
 If the testator is blind, there is a need to
read the contents of the will
No need for the notary public to sign the
attestation clause but if he signs it is a mere
surplusage
Even if there are more than 3 witnesses, the
notary public cannot act as a witness
because he still cannot witness his own act
Any form of improper notarization will
render any document void and ineffective
and any person who acts as a notary public
who is not qualified, a criminal case
usurpation and estafa may be filed