WILLS AND SUCCESSION Case: Maria, to spite her husband Jorge, whom she
suspected for having an affair with another woman,
Atty. Uribe
Allowance and Disallowance of Wills
Allowance of wills – also known as the probate. (may
also be called as “authentication” – not encouraged to
use such as it only pertains to one aspect)
Why is there a need for the allowance of wills?
Q: May the estate be validly distributed even if the will
was not probated/ not submitted for probate?
A: Yes. Basis of distribution will be the legal intestate
succession. The purpose of the allowance pertains to the
distribution of the estate in accordance to the will.
Illustration: If an heir (voluntary and not intestate) was
given a car, he will only be entitled with the car if the will
is probated.
NO WILL SHALL PASS EITHER PERSONAL OR REAL
PROPERTY UNLESS THE WILL ITSELF IS PROVEN
AND ALLOWED.
Petition for the probate of the will –
Opposed because the surviving spouse (wife) was
heavily favored in that will.
Q: Would that result in the disallowance of this will?
A: No, it will not result in the disallowance. Two grounds:
 It is not one of the grounds for the disallowance
of wills (not one of those enumerated in 839)
 Nature of the probate proceeding – jurisdiction of
the probate court pertains only to the extrinsic
validity of the will.
Q: In probate proceedings, what are the ONLY questions
the court can determine?
o Genuineness and authenticity – will of
the testator
o Testamentary capacity
o Animo testandi – intent (consider the
circumstances)
o Formalities
o Due execution of the will.
XPN: The courts may look into the intrinsic validity of the
will if on its face, the will cannot be given effect.
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executed a will unknown to him bequeathing all the
properties she inherited from her parents to her sister,
Miguela. Upon her death, the will was presented for
probate. Jorge opposed the will on the ground that the will
was executed by his wife without his knowledge, much
less consent, and thus, deprived him of his legitime. If you
were the judge, how will you rule on Jorge’s opposition to
the probate?
Held: I will rule against Jorge in relation to the opposition.
In the first place, the law does not require the consent of
a husband for the wife to execute a valid will. But also, he
was deprived of his legitime is not one of those that
should be asked upon by a probate court. It goes already
to the intrinsic validity of the will. Even if all the properties
were bequeathed, those were only the properties which
she inherited from her parents. There could be so many
other properties which can satisfy the legitime of the
husband.
**Death of testator no longer required for the execution of
probate of wills (Anti-mortem probates)
As to Contested Wills:
Handwriting:
 No issue as to ordinary wills (not the witness’
handwriting)
 As to holographic wills,
o Ordinarily, only one (1) witness is
required to testify the handwriting,
unless, the will is contested.
o Under 811, if the will is contested, three
(3) witnesses shall be required.
Q: Is the three-witness requirement in relation to
holographic will mandatory?
A: In the case of Asola v. Singson (en banc), this
requirement is not a mandatory requirement. It is
permissive or directory. The Court cited two reasons:
1. Because of the nature of the proceeding – by
the time the petition for probate is filed, all
the witnesses are already dead.
2. The will may even be probated even only
with the testimony of an expert.
However, in the case of Codoy v. Calugay (division), the
Court cited that the three-witness requirement is a
mandatory requirement.
As to Destroyed or lost Wills:
Q: If the petition did not attach the will or even just the
copy of the will, may the will nonetheless be probated?
A: Yes. The will may not have been attached because
somebody else is in possession and refused deliver it to
the court (executor).
Remedy: The Court must compel the one who is in
possession to deliver the will for the probate of such will.
Q: However, if it was alleged that the will was destroyed,
may the will be probated:
A: It may be probated but only if it is an ordinary will,
because its existence and due execution can be proven
by oral testimony.
Q: May the holographic will be probated if the will itself
was not presented to the court?
A: The Court ruled in the case of Gan v. Yap that such
will cannot be probated since the will itself is the only
basis of the Court to determine that it is indeed in the
handwriting of the testator. The oral testimony of the
witnesses would not be sufficient and the will itself has to
be presented.
**Footnotes: In the Rodelas v. Aransa case, a photo static
copy would suffice.(Atty. Uribe questions the authenticity
of the handwriting)
Case: 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 especially 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?
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Issue:
In the first place, can the notarial will (first will) be
probated when it was expressly revoked?
In the case of Molo v. Molo, in order for the
revocatory clause in the subsequent will to be
given effect, it must be probated.
Was there a valid revocation by destruction?
There is none because the holographic will
mistakenly burned. There is no animo revocandi
(intent to revoke).
Thus, can that holographic will be probated? It
cannot be probated. For a holographic will to be
probated, the will itself or a at least a copy
thereof should be submitted or presented to the
court for the probate of his will.
Thereafter, because the holographic will which
expressly revoked the first will cannot be
probated, then in Molo v. Molo, the revocatory
clause will have no effect.
Therefore, the first will can be probated, as if
there was no revocation of such will.
839. The following are the grounds for the disallowance of
wills
 The formalities of law have not been complied
with
 The testator was insane or mentally incapable
 The will was executed through force or duress
 The will contains an attestation clause
Q: Is the enumeration as to the grounds for disallowance
of wills an exclusive enumeration (revocation, minority)?
A: Enumeration exclusive. As to revocation, it is not a
ground for disallowance; rather it is a ground for the
dismissal of the petition. In other words, it is a
jurisdictional matter that should be ascertained by the
court before the probate court assumes jurisdiction.
Minority falls under the second ground (mentally
incapable).
Legitimes in Relation to Testamentary Succession:
Donation subject to collation –
Example: X died intestate in 1985 leaving three legitimate
children, A, B, and C, and two acknowledged illegitimate
children, D and E. He donated Php 30,000 to F, a friend,
in 1970; to A P40,000 in 1975; to D P50,000. These
figures may pertain to the value of the property. He left an
estate in the amount of P100,000 and debts amounting to
P40,000. Who will inherit from the estate and give their
shares.
A: The gross estate is P100,000. Then, deduct the debts
(as mentioned earlier, the creditors must be paid first).
The remaining value is the Net Hereditary Estate. This is
the only property that is to be distributed to the heirs,
unless, there is an in officious donation.
Collation of the first type – P180,000
No actual return; distributable estate. This will
be the basis of determining whether there was an in
officious donation which may impair the legitimes for the
compulsory heirs.
First half – legitimate children
Second half – concurring compulsory heirs and
donations
Thus, A, B and C will each have a legitime of
P30,000. D and E will each receive P15,000. Donation to
F must be placed in the free portion (protected as it is a
donation inter vivos). Ordinarily, donations to compulsory
heirs shall be imputed to their legitimes, unless otherwise
stated by the testator.
Collation of the second type – restitution or return
In the case of A, since it exceeded the legitime,
the excess of which (P10,000) shall be placed in the free
portion.
Q: Between a Donation inter vivos and a donation mortis
causa, which one is preferred?
A: Inter vivos, because it took effect ahead of the mortis
causa.
Q: Between donation inter vivos and legacy or device,
which one is preferred?
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A: Inter vivos, because legacy or device takes effect only
upon death.
Article 911. – give first the preferred legacy. All the other
legacies or devices must be in proportion. The estate is
not sufficient to cover everything.
Article 950. – Must be in order. Renumeratory, preferred,
support, and education.
**If the conflict is with a third person (donee), apply Art.
911.
**If the conflict is solely among the legacies, apply Art.
950.
PRINCIPLES AFFECTING LEGITIMES:
1. Preterition – Protects legitimes
2. Reserva troncal – qualifies, limits(reserved
property)
3. Disinheritance – deprives an heir not only in
legitime but also in the estate.
Q: When may an heir not be preterited even if he was
omitted in the will?
A: (1) Not all the properties were disposed of (thus, if he
he was not given, preterition must refer to the omission,
not intentional); and (2) During the lifetime of the heir, he
received something from the testator. Remedy is the
completion of the legitime (if what was received is less
than the legitime), not annulment of the institution of an
heir.
Thus, Preterition is the total omission of an heir in
the direct line from the estate.
Q: Can there be preterition if there was no will?
A: No, because there is nothing to annul. But also, since
there is no will, the heir is included in the distribution of
the estate since the estate will be distributed by legal or
intestate succession.
REQUISITES OF PRETERITION:
1. There has to be a valid will.
2. All the properties must have been disposed of in
that will.
3. The heir, who is an heir in the direct line, was not
given anything out of the estate in that will.
4. The heir was not disinherited.
Q:With regard to the heir in the direct line, can a spouse Thus, Juan is not anymore entitled to a single
be preterited? centavo in the estate of Josepha.
A: Never, because he/ she is not an heir in the direct line. How should the estate be divided? Equally among
the four other brothers of Juan. P900,000 divided by
Q: Can a father be preterited?
4. P225,000 each.
A: Yes, if there are no legitimate children and
RESERVA TRONCAL (RESERVA LINEAL):
descendants. He is only a secondary compulsory heir in
the direct line.
Q: Can an illegitimate child be preterited?
A: Yes, since an illegitimate child is an heir in the direct
line. However, in the case decided by the Supreme Court
involving illegitimate child, annulment would only pertain
up to the legitime of a legitimate child. (May be
discriminatory in nature since the law did not so provides)
Q: May a preterited heir ne entitled to a share in the
estate which is bigger than his legitime?
A: Yes. Half of the estate will be annulled and thus he
may receive more than his legitime, since the estate may
then be divided into three.
EFFECT: Total annulment, but respecting to the legacies
and devices so long as they are not in officious.
REQUIREMENT: For an heir to be preterited, he must not
have been disinherited (there is intention).
Example: Because her eldest son, Juan, had been
pestering her for capital to start a business, Josepha gave
him P100,000. Five years later, Josepha died, leaving a
last will and testament which instituted only her four
younger children as her sole heirs. At the time of her
death, her only property left was P900,000 in a bank.
Juan opposed the will on the ground of preterition. How
should Josepha’s estate be divided among her heirs?
State briefly the reasons.
A: Juan was not preterited because he already received a
sum of money during the lifetime of the testator. If at all,
the P100,000 is less than his legitime, his only remedy
would be the completion of his legitime.
a. P900,000 plus P100,000 is P1 million which is
the distributable estate.
b. 1 million divided by 2 is P500,000 which will be
used to compute the legitime.
c. P500,000 divided by 5 is P100,000 each.