Wills & Succession | Atty.
Pedron
NATURE AND PURPOSE OF SUCCESSION
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.
SUCCESSION AS A MODE OF ACQUISITION
 Succession is a derivative1 mode of acquisition subject to estate tax.
Ownership of the property is automatically transferred to the heirs
from the moment of decedent’s death.
 Death extinguishes the juridical capacity of a person; as well as his
title to or dominion over the things he owned. From the moment of
death, the heirs automatically become the absolute owners of the
decedent’s property, rights and obligations.
MOMENT OF TRANSMISSION: DEATH OF DECEDENT
Art. 777. The right to the succession are transmitted from the
moment of the death of the decedent.
1 With a previous owner who transmits title to transferee.
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Uson v. Del Rosario
The deed of separation cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be
renounced.
De Borja vs De Borja
 A compromise agreement was issued by an heir over the inheritance
that she will receive, with the probate case was pending in court.
 At the time of the decedent’s death, the inheritance was already
transferred to the heirs. The heir can already exercise the attributed of
ownership over such share which include the right to convey or
dispose.
Bonilla vs Barcena
 While a dead person cannot sue in court, he can be substituted by his
heirs in pursuing the case up to its completion.
 When the complaint was filed, Fortunata was still alive and the court
acquired jurisdiction over her person. If she thereafter died, the Rules
of Court prescribe a procedure whereby a party who died during the
pendency of the proceeding can be substituted.
 When a person dies while a claim was filed, his claim is not
extinguished but was rather transmitted to his heirs.
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TERMS & GENERAL CONCEPTS
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.
Art.782. An heir is a person called to the succession either by
the provision of a will or by operation of law. Devisees and
legatees are persons to whom gifts of real and personal
property are respectively given by a will.
Art.776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his
death.
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 succession.
LEGITIME, FREE PORTION & COMPULSORY SUCCESSION
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Article 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.
 The legitime is a portion of the decedent’s estate which the law
earmarks for the compulsory heirs.
 Testator’s relative freedom to control the disposition is to a large
restrained by 886 which compels him to preserve and deliver the
legitime to compulsory heirs. Therefore, the legitime is a specified
portion of the estate of a deceased person which is reserved for the
compulsory heirs as the latter’s minimum share of the inheritance.
Article 904. The testator cannot deprive his compulsory heirs
of their legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
 General Rule: Article 904 prohibits a testator from depriving the
compulsory heir of his legitime; the testator cannot impose any
burden, encumbrance, condition or substitution of any kind on the
legitime;
 Exceptions:
o In specific cases, where the former may lawfully disinherit the
latter.
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o Under Art. 1083, the testator may forbid the partition of the  If the renunciation or compromise is between a compulsory heir and
estate for a period not exceeding twenty (20) years; the testator or decedent, and, if valuable consideration was paid by

o Other statutory burdens which attach to the legitime, such as: the testator or decedent to the compulsory heir who renounced the
 Reserva Troncal; and, legitime or who entered into a compromise in relation thereto, the
 The reservation of the Family Home under the Family payment must be considered a gift given by the testator or decedent

Code for 10 years, or as long as there is a minor to the compulsory heir, and is therefore subject to collation under

beneficiary. Article 1061.

 Disinheritance is the only means sanctioned by law by which a

testator may deprive his or her compulsory heir of the legitime. It
Article 906. Any compulsory heir to whom the testator has

requires the following:

left by any title less than the legitime belonging to him may

1. Requires a valid will that must specify the cause

demand that the same be fully satisfied.

2. Stated cause must be one of the grounds specified by law

Article 907. Testamentary dispositions that impair or diminish
3. Cause of disinheritance must be true and certain
the legitime of the compulsory heirs shall be reduced on
4. Will must be admitted to probate
petition of the same, insofar as they may be inofficious or

Article 905. Every renunciation or compromise as regards a excessive.

future legitime between the person owing it and his LOSS in Pari Materia
compulsory heirs is void, and the latter may claim the same
Art 906 Art. 907
upon the death of the former; but they must bring to
 The testator gave him less than  The testator gives disposition
collation whatever they may have received by virtue of the
the legitime that impairs the legitime of
renunciation or compromise.  Gives the heir that the legitime compulsory heirs.
be satisfied  Reduce the disposed portion to
 A renunciation or compromise involving future legitime is an act or  Presumption: may natira na satisfy the legitime
transaction involving future inheritance because future legitime is but undisposed  Presumption: madami kang
a portion of the future inheritance of a living person. binigay na walang masyadong

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natira. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not

Intentional Not intentional excluded by those in Nos. 1 and 2; neither do they exclude
Subject to completion of the Legitime Legacy/ Devises will be reduced.
one another.

Article 855. The share of a child or descendant omitted in a

In all cases of illegitimate children, their filiation must be duly
will must first be taken from the part of the estate not
proved.
disposed of by the will, if any; if that is not sufficient, so much
as may be necessary must be taken proportionally from the
The father or mother of illegitimate children of the three
shares of the other compulsory heirs.
classes mentioned, shall inherit from them in the manner and
to the extent established by this Code.
 In this case, there is no preterition yet in case of omission of a
Compulsory Heir, as CH may yet to recover his or her legitime from
BASIC CATEGORIES OF HEIRS
the undisposed balance of the hereditary estate. Omission in this

provision is not total.  Testamentary Heirs – they inherit by virtue of a duly probated will

Article 887. The following are compulsory heirs: o Voluntary heirs – inherit solely by the express will of the

1. Legitimate children and descendants, with respect to their testator

legitimate parents and ascendants; o Compulsory heirs – heirs to whom the legitime is reserved;

2. In default of the foregoing, legitimate parents and unless lawfully disinherited, they inherit at least to the extent

ascendants, with respect to their legitimate children and of the legitime

descendants;  Primary Compulsory Heirs (PCH) – principal

3. The widow or widower; beneficiaries of the estate who exclude the secondary

4. Acknowledged natural children, and natural children by compulsory heirs and enjoy preference over other

legal fiction; compulsory heirs2

5. Other illegitimate children referred to in article 287.

2 E.g. Legitimate children, Adopted children.

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 Secondary Compulsory heirs (SCH)- they succeed
only in default of PCH3
 Concurring Compulsory Heirs (CSH) – refer to heirs
who succeed concurrently with primary or secondary
compulsory heirs4
 Intestate Heirs
o They inherit from a decedent who dies without having
executed a valid and operative will.
o Blood relatives and surviving spouse of the testator who are
called to succession by law
o Intestate heirs inherit only if decedent did not leave a valid
and operative will while a compulsory heir is called to
succeed whether or not the decedent left a will
Insert Table on Shares of Compulsory Heirs
RESERVA TRONCAL
Article 891. The ascendant who inherits from his descendant
any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or sister,
3 E.g. Legitimate parents and other legitimate ascendants, Illegitimate parents, if the
decedent does not have legitimate or illegitimate descendants.
4 E.g. Surviving spouse and illegitimate children.
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is obliged to reserve such property as he may have acquired
by operation of law for the benefit of relatives who are within
the third degree and who belong to the line from which said
property came.
ELEMENTS OF RESERVA TRONCAL
(1) A legitimate ascendant (reservoir) acquires property (reservable
property) from a legitimate descendant ( prepositus) by operation of
law.
(2) The prepositus in turn acquired the reservable property by gratuitous
title from another legitimate ascendant, brother or sister (the origin).
(3) The reservoir is required by law to reserve the reservable property.
(4) The beneficiaries of the reserve are the legitimate relatives of the
prepositus within the third degree of consanguinity coming from the
line of origin (reserves).
NOTE: Art. 891 does not prevent intentional transfer of property to the other
familial line.
PARTIES TO RESERVA TRONCAL
Origin
 source of the reservable property
 Legitimate ascendant, brother or sister
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 Origin transfers ownership of the property to the prepositus by  must be an ascendant of the prepositus
gratuitous title (First Transmission) either by:

o Donation inter vivos Reservees

o Donation propter nuptias  The ultimate beneficiaries of the reservable property, provided that
o Hereditary succession (testate or intestate) the double resolutory conditions are fulfilled.
 The key consideration is that the first transmission must be gratuitous.  Relatives of the prepositus within the third degree of consanguinity
who belong to the line of the origin.

Prepositus
 Is a legitimate descendant, brother or sister of the origin who acquires  The following are potential reservees:
ownership of the reservable property from the latter by gratuitous o First Degree Relatives

title  Legitimate parents

 There is no reserva if the prepositus is still the owner of the property;  NOTE: legitimate child of the prepositus cannot be a
he may alienate it during his lifetime upon which the property loses reservee because:
the prospect of becoming reservable at some future time  Property would devolve from the prepositus
to his legitimate child by operation of law;

Reservor the statutory obligation is with a reservor

 is the legitimate ascendant who acquires ownership of the reservable who is an ascendant of the prepositus

property by operation of law from the prepositus (second o Second Degree Relatives

transmission of title)  Direct Line: legitimate grandparents of the prepositus

o The reservor is an “owner” of the thing received. He is not a  Collateral line: legitimate brothers and sisters of the

usufructuary nor a trustee. His ownership is conditional. He prepositus (whether full or half blood); full blood will

has the obligation to bring it back in favor of the reservees. inherit twice than a half blood (Art.1006)

 has the statutory obligation to return the reservable property to the o Third Degree Relatives

reservees

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 Direct line: legitimate great grandparents of the Rule of Equal Division

prepositus  Equal division of the property among the reservees.
 Collateral line:  However between full-blood and half-blood brother or sister of the
 nephews and nieces of the prepositus and prepositus, the former get double the share of the half-blood
 the legitimate uncles and aunts of the

prepositus Right of Representation

 Distribution of reservable property governed by intestate succession.
 In intestate succession, right of representation is given to legitimate
children of a predeceased or incapacitated brother or sister of the

decedent.

 Therefore, nephews and nieces of the prepositus (whether of the full

of half-blood) are entitled to exercise the right of representation if

concurring with at least one brother or sister of the prepositus.

ENCUMBRANCE CREATED BY THE RESERVA

 The reserva creates an encumbrance on the reservable property

which affects the reservor’s title thereto.
RULES OF INTESTATE SUCCESSION IN RESERVA
 While a reservor may dispose of the reservable property in his
 Rules of intestate succession apply in distribution of reservable
lifetime, the burden created by the reserva will follow the reservable
property
property such that every transferee, with actual or constructive notice
 Reservees do not inherit as a class
of the reservable nature of the property, is subject to the double
 Reservable property is in effect brought back to the intestate estate of
resolutory conditions the fulfillment of which creates the obligation to
the prepositus (delayed intestacy)
return to the reservees.

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 Rule: return of the property cannot be by any other manner such as
paying money equivalent or by delivering a thing of same kind and
quality.
TESTATE SUCCESSION
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.
 Testamentary Succession takes place when the testator dies with a
valid and operative will. It must be both extrinsically valid (formal
requirements) and intrinsically valid (substantive validity).
Art.738. 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 his estate, to take effect after his
death.
 The making of a will is a right conferred solely by law. It is a unilateral
act wherein the consent of the beneficiaries to the execution of the
will is totally unnecessary. The participation of the beneficiaries is
limited to the acceptance or repudiation of the inheritance.
 The testator is required to comply with Articles 804,805 and 806 in
the case of a notarial will, and Art. 810 in the case of a holographic
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will. Failure to comply will result in the nullity of the will (denial of
probate).
 The making of the will cannot be left to the discretion of a third
person, or accomplished through the instrumentality of an agent or
attorney. What is prohibited is the exercise of judgment or discretion
by third persons in determining the testamentary dispositions.
 It shall take effect only after the testator’s death, subject to the
condition that it is admitted to probate.
 A testator may revoke his will at any time before his death, and any
waiver or restriction of this right is void. However, in order to revoke a
will, the testator must possess testamentary capacity at the time of
revocation.
 A testator who executes a notarial will must acknowledge before a
notary public that the will is free and voluntary act and deed. While a
holographic will need not be acknowledged before a notary public,
the testator nonetheless must freely give his consent thereto.
 General Rule: Power of the Decedent over the disposition of his estate
is absolute;
 Exceptions & Limitations:
1. Legitime
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2. Reservable Property5 o relates to the recognition of an illegitimate child, it is not a

3. Mistress6 will because the document does not dispose property. The

4. Fideicommisary Substitution7 document need not be probated.

5. Condition not to Marry8 o Relates to the disinheritance of a compulsory heir, it is a will
6. Dispocicion Captatoria9 because the exclusion of compulsory heir from the

7. Dispositions in favor of Incapacitated persons10 inheritance results in the increase in the shares of others. A

valid disinheritance is an indirect adjudication of property to

one or some of the qualified heirs, for which reason probate

NECESSITY OF CONVEYANCE OF PROPERTY
is necessary.
 A will must convey property; otherwise it is not a will. If the only

disposition of a will:
Art. 796. All persons who are not expressly prohibited by law
may make a valid will
5 The reservable property under Art. 891 does not form part of the estate of the
deceased ascendant and therefore such ascendant may not bequeath the reservable
property by will. Art. 797. Persons of either sex under eighteen years of age
6 Public policy does not permit the testator to give any testamentary benefit to the cannot make a will.
mistress.
7 While a testator may provide in his will a fideicommisary substitution, the law requires
Art. 798. In order to make a will, it is essential that the testator
that the first and second heirs be related to each other within the 1st degree of
be of sound mind at the time of its execution.
consanguinity; otherwise the substitution is void.
8 Article 874. An absolute condition not to contract a first or subsequent marriage shall
be considered as not written unless such condition has been imposed on the widow or ELEMENTS OF TESTAMENTARY CAPACITY (N2AS)
widower by the deceased spouse, or by the latter's ascendants or descendants.
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Any disposition made upon the condition that the heir shall make some provision in his will in  Natural person
favor of the testator or any other person is void.  Atleast 18 years old at the time of execution
10
Testamentary dispositions made in favor of persons disqualified under Art. 1027 and Art.  Sound mind at the time of execution
1028 are void.
 Not expressly prohibited by law from making a will.

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The burden of proof that the testator was not of sound mind
Art. 799. To be of sound mind, it is not necessary that the
at the time of making his dispositions is on the person who
testator be in the full possession of all his reasoning faculties,
opposes the probate of the will; but if the testator, one
or that his mind be wholly unbroken, unimpaired or
month, or less, before making his will was publicly known to
unshattered by disease, injury or other cause.
be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
It shall be sufficient if the testator was able to at the time of
making the will to know the nature of the estate to be
PRESUMPTION OF SANITY
disposed of, the proper objects of his bounty, and the
 The law presumes that the testator is of sound mind at the time of
character of the testamentary act.
execution of his will. However, this presumption may be controverted

by competent evidence
SOUNDNESS OF MIND
 Exceptions to the presumption of sanity
Soundness of mind merely raises a red flag.
1. One month or less, before the execution of the will, the
Things that a testator should know at the time of the execution of the will.
testator was publicly known to be insane.
1. The testator should know the components of his Property, rights &
2. There’s a prior judicial declaration of testator’s insanity (unless
Obligations
the declaration was set aside prior the execution of the will)
2. He should know the persons who has expectation in the participation
3. Prior judicial appointment of a guardian over the person/
in the estate.
property of a person b reason of having found to be insane.
3. He is conscious that the document will take effect mortis causa (after
 In the abovementioned cases, the party who asserts the validity of the
his death); and
will has the burden of proving that the testator was either in a lucid
4. The disposition is gratuitous in nature.
interval or has regained sanity.

Art 800. The law presumes that every person is of sound

mind, in the absence of proof to the contrary.

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Art 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity.
DETERMINATION OF TESTAMENTARY CAPACITY
 The testator’s testamentary capacity is determined at the time of the
execution of the will. At this time the testator must be at least 18 years
old and must possess sound mind.
 If the testator does not possess testamentary capacity at the time of
the execution of the will, the gaining or regaining capacity at some
future time will not validate the void will.
Art. 802. A married woman may make a will without the
consent of her husband, and without the authority of the
court.
Art. 803. A married woman may dispose by will of all her
separate property as well as her share of the conjugal
partnership or absolute community property.
FORM OF A NOTARIAL WILL
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator
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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
signed, 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 instrumental witness, and the latter witnessed and signed
the will and all the pages thereof in the presence of the
testator and one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary shall not
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be required to retain a copy of the will, or file another with i. Actual number of pages used upon which the will

the office of the Clerk of Court. was written

ii. The testator signed the will and every page thereof’

PURPOSE OF THE FORMALITIES or caused some other person to sign in his behalf.
iii. The instrumental witnesses witnessed and signed the
 The object of solemnities surrounding the execution of the wills is to
will and all the pages thereof in the presence of the
close the door on bad faith and fraud, to avoid substitution of wills
testator and one another.
and testaments, and to guarantee their truth and authenticity. (Lee vs
3. Notary Public
Tambago)
 The notary public confirms that the testator made the
 In a probate court, the examination is limited to the determination of
document freely and voluntarily.
the genuineness and authenticity of a will.
 The failure of the witnesses to declare before the notary

public their participation in the execution of the notarial will

PARTS OF A WILL
as narrated in the attestation clause is a fatal omission which
1. Testamentary Disposition
results in the nullity of the notarial will.
 The first part is a personal act to the testator which he must
 Disqualifications of a Notary Public
declare before a notary public as his free and voluntary act
1. He must be duly commissioned
and deed.
2. He must not be an instrumental witness.
 The testamentary disposition should be in the language of
the testator.
FORMAL REQUISITES OF A NOTARIAL WILL
2. Attestation clause
 The attestation clause must indicate the (1) number of pages
A will must be in writing
 It must be written in order to preserve the document. A will may be
(2) that the signing was made in the presence of the
handwritten, typewritten or printed.
witnesses and the testator; and (3) signed by 3 witnesses.
 Specific objectives of the law requiring a written instrument
 The second is a certification confirming the following facts:
 To evidence compliance with the formalities prescribed by law

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 The serve as exclusive proof of its contents, avoiding a reliance on the
frail memory of man.
 The written instrument must be presented to the court during
probate proceedings so that
 A visual inspection could determine the compliance with the required
formalities
 The probate court could have an opportunity to examine the
testamentary disposition to determine compliance with substantive
law.
In a language or dialect known the testator
 To ensure that the testator is able to understand the contents of the
will without being assisted by another person. A testator is not
permitted to rely on translation of a will that is written in a dialect or
language that is foreign to him.
 Writing a will is a personal act. The testator may be defrauded in case
he merely relies on the interpretation of a third person.
 It is not necessary to include a statement in the will confirming that it
is written in a language or dialect known to the testator. This fact may
be established by extrinsic evidence. (Lopez vs Liboro)
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The testator must sign at the end of the will
 The testator is required to affix his signature at the end of the will in
order to indicate the logical end thereof; in order to prevent the
insertion of unauthorized dispositions.
 The requirement that it must be signed at the logical end of the will
does not apply to the instrumental witnesses who may affix their
subscribing signatures elsewhere in the will, provided that such
signatures were in fact affixed on each page of the will. The reason is
that the signatures of the witnesses are meant to identify the pages of
the will and to prevent the fraudulent substitution thereof.
 The law permits a testator to designate a third person to sign the will
on his behalf. 3 requisites:11
1. The testator makes an express directive to the third person
2. The third person should write the name of the testator and
not his own name.
3. The third person writes the testator’s name in the will in the
presence of the testator and of each of the instrumental
witnesses.
A will must be attested and subscribed by 3 credible witnesses
 The 2 specific functions of the witnesses are (a) attesting the due
execution of the will, and (b) subscribing thereto. (Taboada vs Rosal)
In this manner, an illiterate person may execute a notarial will.
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 Attestation consists in witnessing the testator’s execution of the will in
order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature
of the testator exists as a fact. It confirms the compliance with certain
procedural requirements.
 Subscription is the signing of the witness’ names upon the same
paper for the purpose of identification of such paper. It identifies the
authentic pages of the will.
 Where the attestation clause is not signed by the witnesses at the
time of the execution of the will, it would invalidate the will as it would
be easy to add the clause on a subsequent occasion in the absence of
the testator and the witnesses. (Caneda vs CA)
The testator and witnesses must sign in the presence of one another
 A person requested by the testator to affix the testator’s name in the
will, must likewise sign the will in the presence of the testator and the
witnesses.
The testator and witnesses must sign on the left margin of each page
 The location of the subscribing signature of the witnesses is not
material, for as long as the subscribing signatures are complete, for
this would constitute substantial compliance with the requirement
that the witnesses should subscribe the will. (Taboada vs Rosal)
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 The purpose of the marginal signature is to prevent the substitution
of pages.
Each page must be numbered correlatively
 The purpose of the law in such requirement is to safeguard against
possible insertion or suppression of one or some of its pages.
Pagination facilitates the discovery of both missing pages and extra
pages inserted in the will. Pagination serves to confirm the accuracy
of the attestation clause insofar as it states the number of pages used
upon which the will was written.
 The location of the page number is not material for as long as there is
pagination. Pagination need not be in letters and may in fact be in
Arabic numerals. If the first page is not numbered, omission shall not
necessarily invalidate the will.
The will must contain an attestation clause
 An attestation clause refers to that part of a will whereby the witness
certify 3 things.
1. The number of pages used upon which he will was written
2. That the testator signed the will or caused another to write
his name
3. That the testator and the witness signed the will in the
presence of one another.
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 The witnesses execute the attestation clause for the purpose of  Art. 807 makes a distinction between a literate and illiterate testator
preserving in written form a record of certain actions taken during who is deaf or deaf-mute. The objective of the law is to ensure that

execution of a will, so that in case of failure of memory or other he understands the contents of his will.
casualty, such facts may still be proved. (Caneda vs CA)  If the deaf or deaf-mute testator is illiterate, the law requires him to
designate a person of his choice to read the will and to communicate

The will must be acknowledged before a notary public to him the contents thereof in some practicable manner. The

 An acknowledgment is the act of one who has executed a deed in objective of the law is clear, the testator must somehow acquire an

going before some competent officer and declaring it to be his act or understanding of the contents of the will. The testator is given a free

deed. hand in selecting the person who will read the will because the

 The law does not require that the testator and the witnesses person so selected must be able to communicate to the testator the

acknowledge the will before the notary public at the same time. If any contents of the will.

of the testator and the witnesses failed to acknowledge the will before
Art 808. If the testator is blind, the will shall be read to him
a notary public, the notarial will is void.
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.
PHYSICALLY DISABLED TESTATORS

Art 807. If the testator be deaf, or a deaf-mute, he must  The additional formality if meant to give additional protection to the
personally read the will, if able to do so; otherwise, he shall testator. It is to make the provisions of the will known to the testator,
designate two persons to read it and communicate to him, in so that he may able to object thereto if they are not in accordance
some practicable manner, the contents thereof. with his wishes. This is the only instance when a notary public is

required to participate in the actual execution of the will.

 The special formalities in Art. 807 and 808 are intended to
compensate or otherwise make up for the disability of the testator.

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WITNESSES TO WILLS
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
 The domiciliary requirement assumes that the probate is conducted in
the Philippines. Domiciliary requirement is not mandatory if probate
proceedings were held in a foreign jurisdiction.
DISQUALIFICATION DUE TO CRIMINAL CONVICTION

will mentioned in article 805 of this Code.  The crimes that would disqualify a person from being an attesting

witness to a notarial will have one element in common—dishonesty.

 The qualifications of a witness in Art 820 apply only to a witness to a
 If the credibility of the witness is questionable, his testimony on these
notarial will. The intervention of witnesses is not required in a
matters would be pointless and cannot serve as basis for admitting
holographic will. Even if a holographic will is in fact witnessed, the
the will to probate.
qualifications referred in Art 820 and the disqualifications in Art 821
 Disqualification pertains to 3 specific offenses. It is submitted that the
do not apply to the witnesses who are deemed dispensable.
grounds are exclusive and do not include other forms of dishonesty.

In any case, appreciation of the credibility is a matter left to the

Art 821. The following are disqualified from being witnesses
probate judge.
to a will:
 The notary public before whom the will is acknowledged cannot be
(1) Any person not domiciled in the Philippines;
one of the instrumental witnesses to the will. (Cruz vs Villasor)
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Art 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming
DOMICILIARY REQUIREMENT
subsequently incompetent shall not prevent the allowance of
 The domiciliary requirement is intended to ensure that when the the will.
witnesses are called upon to testify, they can without much difficulty
SUBSEQUENT INCAPACITY
appear in court. The failure of a witness to appear may jeopardize the
admission of the will.  The competence of a witness is material at the time of the execution

of the will because it is the time that the witness is called upon to take

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mental note of the procedures that were observed. The competence 4. His or her child or children
of a witness is determined as of such time. 5. Anyone claiming under such witness, spouse, parents or

 Soundness of the mind is an example of a qualification that a witness child.

must possess when he takes the witness stand during probate.
However, the law does not require the continuing qualification of a PRIMARY FUNCTIONS OF THE WITNESSES TO A NOTARIAL WILL:

witness, for to do so would be unjust to the testator whose will may

 To identify each page of the will by subscribing thereto
be disallowed for reasons beyond his control.
 To attest the observance of certain formalities during the execution
thereof.
Art 823. If a person attests the execution of a will, to whom or  During probate, the witnesses are expected to give testimony
to whose spouse, or parent, or child, a devise or legacy is confirming:
given by such will, such devise or legacy shall, so far only as 1. Their signature appearing in the will
concerns such person, or spouse, or parent, or child of such 2. The truth of the matter set forth in the attestation clause.
person, or any one claiming under such person or spouse, or  If any of the witnesses should deny his signatures in the will, or
parent, or child, be void, unless there are three other otherwise disavow the contents of the attestation clause, the probate
competent witnesses to such will. However, such person so of the will is put at serious risk.
attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. EXCEPTION TO THE RULE

PERSONS PROHIBITED FROM OBTAINING BENEFIT UNDER A NOTARIAL WILL  The nullification does not apply if there are “three other competent

 Art. 823 voids any economic benefit given by a testator in his notarial witnesses to such will.” The availability of at least 3 other witnesses

will to certain persons. These prohibited benefits are testamentary who can testify makes unnecessary the testimony of the witness who

gifts given by the testator to: has economic interest.

1. An attesting witness
Art 824. A mere charge on the estate of the testator for the
2. His or her spouse
payment of debts due at the time of the testator's death does
3. His or her parents
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not prevent his creditors from being competent witnesses to  The date of a holographic will determines 2 things: (1) the

his will. testamentary capacity of the testator at or about the time of the

execution of the will ; and (2) the law applicable to the formal validity
of the holographic will.
FORM OF A HOLOGRAPHIC WILL
 The date is also helpful in determining which of the several wills
Art 810. A person may execute a holographic will which must represent the true will of the testator. If the testator executed several
be entirely written, dated, and signed by the hand of the ills, and if there are inconsistencies in the dispositions of these various
testator himself. It is subject to no other form, and may be wills, the dispositions of the most recent will shall prevail over the
made in or out of the Philippines, and need not be witnessed. dispositions of the prior ones.

REQUISITES OF A HOLOGRAPHIC WILL Art.811. On the probate of a holographic will, it shall be

necessary that at least one witness who know the handwriting
Entirely handwritten
and signature of the testator explicitly declare that the will
 A holographic will consists of 3 parts: date, testamentary dispositions
and the signature are in the handwriting of the testator. If the
and signature. All these should be in the handwriting of the testator. If
will contested, at least three of such witnesses shall be
any of the essential parts is not in the handwriting of the testator, the
required.
same is void.
If the absence of any competent witness referred to in the
 If certain portion of the will is not in handwriting of the testator, an
preceding paragraph, and if the court deems it necessary,
examination of such portion should be made. If such portion is not an
expert testimony may be resorted to.
essential part of the holographic will, the holographic will should not

be invalidated.
PROVING THE AUTHENTICITY OF A HOLOGRAPHIC WILL

Date of a holographic will  The genuineness and authenticity of a holographic will is totally

 The date of a holographic will is presumably the true date of dependent on the genuineness of the testator’s handwriting. In

execution. The presumption is disputable.

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holographic wills, the participation of witnesses and the notary public SIGNATURE AT THE END OF THE HOLOGRAPHIC WILL
is not required.
 As an indicator of the logical end, the testator must affix his signature
 If the probate is uncontested, it shall be sufficient that one witness
at the end of the last testamentary disposition. If an additional
who knows the handwriting and signature of the testator declares
disposition is found after, a presumption arises that the same is
that the entirety of the will is in the handwriting of the testator. It is
unauthorized.
not enough that the witness should testify that he or she is “familiar”
 It shall not be considered a testamentary disposition unless it is
with the handwriting and signature of the testator. The law requires
entirely written, dated and signed by the hand of the testator.
knowledge not only of the signature, but also of the handwriting of
COMPARED TO A NOTARIAL WILL
the testator.

 If the probate is contested, Art. 811 provides that at least 3 such Notarial will Holographic will

witnesses shall make the required declaration. However, in the case of -Any additional testamentary
disposition appearing after the
Azaola v Singson (1960),the 3 witness rule is directory and not
signature of the testator makes the
mandatory. This ruling was subsequently overturned by Justice Pardo
entire will void. The only way to add
which ruled that the 3 witness rule is mandatory (Codoy vs Calugay).
new disposition is to execute a
 Whether one witness is enough or three witnesses are required, the codicil
probate court must be satisfied that the testimony of the witness/es
is/are sufficient to establish the genuineness of the handwriting and
-testator may add a new disposition
after his signature provided the same
is entirely written, dated and signed
by the testator.
-holographic will is presented as a
work in progress in that the testator,
from time to time until his death may
add new provisions.

signature of the testator.

Art 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
Art 812. In holographic wills, the dispositions of the testator
disposition has a signature and a date, such date validates
written below his signature must be dated and signed by him
the dispositions preceding it, whatever be the time of prior
in order to make them valid as testamentary dispositions.
dispositions.

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Art 814. In case of any insertion, cancellation, erasure or

alteration in a holographic will, the testator must authenticate
the same by his full signature.

INTESTATE SUCCESSION

PRETERITION

DISINHERITANCE

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