Chapter 2. Testamentary SuccessionSection 1. Wills

Subsection 1. Wills in General

ART. 783. A will is an act whereby a person is permitted, with theformalities prescribed by law, to control to a certain degree thedisposition of his estate, to take effect after his death.

A. Essential Elements & Characteristics

1. The making of a will is a statutory right.Reyes v. CA

A will is the testator speaking after death. Its provisionshave substantially the same force. & effect in the probate courtas if the testator stood before the court in full life like making thedeclarations by word of mouth as they appear in the will.

2. It is a unilateral act. No acceptance of transferees is needed.3. It is a solemn or formal act.4. There must be animus testandi (intent to make a will).5. The testator must be capacitated to make a will.6. The will is strictly a personal act in all matters that areessential.

Rabadilla v. CAA will is a personal, solemn, revocable and free act by

which a person disposes of his property, to take effect after hisdeath.

Since the will expresses the manner in which a personintends how his properties be disposed, the wishes and desiresof the testator must be followed. Thus, a will cannot be a subjectof a compromise agreement which would thereby defeat thevery purpose of making a will.

7. It is effective mortis causa (produces effects only after deathof the testator).8. It is essentially revocable or ambulatory.9. It is free from vitiated consent (executed freely, knowingly,and voluntarily). 10. It is an individual act.

B. Distinguish between "last will" & "testament"Testament disposes of personal property while will disposes of realproperty.

ART. 784. The making of a will is a strictly personal act; it cannot be leftin whole or in part to the discretion of a third person or accomplishedthrough the instrumentality of an agent or attorney.

A. The mechanical act of drafting may be entrusted to another, as longas the disposition itself expresses the testator's desires, and all theformalities of law are complied with.

ART. 785. The duration or efficacy of the designation of heirs, deviseesor legatees, or the determination of the determination of the portionswhich they are to take, when referred to by name, cannot be left to thediscretion of a third person.

ART. 786. The testator may entrust to a third person the distribution ofspecific 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 of moneyare to be given or applied.

A. Art. 786 does not contradict Art. 785 because in the former, theparticular names are not designated whereas in the latter, the namesof particular persons are given. Moreover, in Art. 786, a class or acause is what is specified.

ART. 787. The testator may not make a testamentary disposition insuch a manner that another person has to determine whether or not itis to be operative.

ART. 788. If a testamentary disposition admits of differentinterpretations, in case of doubt, that interpretation by which thedisposition is to be operative shall be preferred.

[Note: this only applies in case of DOUBT. If no doubt exists, and thedisposition is clearly illegal, it should not be given effect. (Cottman v.Grace)]

ART. 789. [1. Latent or intrinsic ambiguity]►When there is animperfect description►{of the heir or property to be given}, or whenno person or property exactly answers the description, mistakes andomissions must be corrected, if the error appears from thecontext►{declarations before and after a discourse which were notstated in the discourse itself} of the will►{the error or ambiguity doesnot appear on the face of the will but is discovered from circumstancesoutside the will} or from extrinsic evidence, excluding oraldeclarations of the testator as to his intention; and [2. Patent orextrinsic ambiguity]►when an uncertainty arises upon the face of thewill, as to the application of any of its provisions, the testator'sintention is to be ascertained from the words of the will, taking intoconsideration the circumstances under which it was made, excludingsuch declarations.

A. Kinds of Ambiguity in a Will

1. Latent or Intrinsic Ambiguity – that which does not appear on theface of the will, & is discovered only by extrinsicevidence►{circumstances outside the will}• This ambiguity arises:

a there is imperfect description of the heir, legitee, or deviseeb. there is an imperfect description of the given giftc. when only one recipient is designated but it turns out thatthere are two or more who fit the description

2. Patent or Extrinsic Ambiguity – that which appears on the face ofthe will

B. How may these ambiguity be cured• By examining:

a. the will itselfb. extrinsic evidence

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ART. 790. The words of a will are to be taken in their ordinary andgrammatical sense, unless a clear intention to use them in anothersense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense,unless the context clearly indicates a contrary intention, or unless itsatisfactorily appears that the will was drawn solely by the testator,and that he was unacquainted with such technical sense.

ART. 791. The words of a will are to receive an interpretation which willgive to every expression some effect, rather than one which will renderany of the expressions inoperative; and of two modes of interpreting awill, that is to be preferred which will prevent intestacy.

A. Priority/Preference of Testate over Intestate Proceedings

- testate proceedings take precedence over intestate proceedings- only true if the will is validly made

ART. 792. The invalidity of one of several dispositions contained in awill does not result in the invalidity of the other dispositions, unless it isto be presumed that the testator would not have made suchdispositions if the first invalid disposition have not been made.(Separability Clause)

— JRT —

ART. 793. Property acquired after the making of a will►{up to the timeof his death} shall only pass thereby►{the property acquired aftermaking the will shall be inherited by the heir mentioned in the will byvirtue of said will}, as if the testator had possessed►{this should be“owned”} it at the time of making a will, should it expressly appearby►{should be “in”} the will that such was his intention.

A. General Rule: What are given by the will are only those propertiesalready possessed and owned by the testator at the time the will wasmade, not those acquired after.

B. Exception1. If it expressly appears on the will that it was the intention togive such "after-acquired" properties.2. If the will is republished or modified by a subsequent will orcodicil.3 if at the time the testator made the will he erronously thoughtthat he owned certain properties, the gift of said properties willnot be valid, unless after making the will, said properties willbelong to him.4. Legacies of credit and remission are effective only as regardsthat part of the credit or debt existing at the time of the death ofthe testator.

C. Example:A who has no compulsory heirs made a will and one provision

thereof reads: “I hereby give all my real properties in favor of mynephew B.” At the time A made said will, he had 4 real properties but 2years later, he acquired a commercial lot and building, and 6 monthslater, A died.

1. Will B inherit the commercial lot and building?ANS: No, because it does not expressly appear in A's will that

such was his intention.2. Who will then inherit the said commercial lot and building?ANS: The legal or intestate heirs of A shall inherit the said

commercial lot and building because he has no compulsory heirs.

[Note: The compulsory heirs of a person are:

1. Legitimate children & other legitimate descendents(grandchildren, great grandchildren) without prejudice to theprinciple “the nearer relatives exclude the more distant ones

2. Legitimate parents & other ascendants in the absence of no. 13. Spouse4. Illegitimate children and other descendents whether legitimate

or illegitimateIf the testator dies without compulsory heirs, the estate goes tointestate heirs, such as siblings, nephews, nieces, etc.]

ART. 794. Every devise►{real property} or legacy►{personal property}shall convey►{or pass or transfer} all the interest which the testatorcould devise or bequeath in the property disposed of, unless it clearlyappears from the will that he intended to convey a less interest.

A. General Rule: the entire interest of the testator in the property isgiven — not more, not less.

B. Example:The owner of the house who devises the same, transfers

ownership over the entire house. If he were a mere co-owner orusufructuary he conveys his share in the co-ownership or hisusufructuary right►{This is true if the usufruct shall subsist after thedeath of the usufructuary because as a rule usufruct is extinguishedupon the death of the usufructuary(Art. 603). An example of a usufructwhich is not extinguished upon the death of the usufructuary is whenthe deed of usufruct expressly provides that its duration is for aspecified number of years & will subsist despite the death of theusufructuary and until the expiration of the period agreed upon.} Nomore, no less.

C. Exceptions:1. He can convey a lesser interest if such intent clearly appearsin the will.2. He can convey a greater interest, thus, the law provides "if thetestator ... owns only a part of, or an interest in the thingbequeathed, the legacy or devise shall be understood limitedsuch part or interest, UNLESS the testator expressly declares thathe gives the thing in its entirety."3. He can even convey property which he very well know doesnot belong to him, provided that it also does not belong to thelegatee or devisee.

D. Example:A & B are co-owners of a residential lot consisting of 1,000

square meters co-owned by them equally.1. If A devises to C his interest in the said lot, how many square

meters will C inherit?ANS: C will inherit 500 square meters because that is the interest

which A could devise in the property disposed of.2. May A devise to C only 300 square meters?ANS: Yes, the testator could devise in the property disposed of a

lesser interest than what the testator could devise.3. May A devise to C the entire 1,000 square meters?ANS: Yes, under Art. 929 (implied order to acquire to the

executor). It is even allowed by law to devise or bequeathed somethingwhich the testator does not own at the time of the making of the willunder Articles 930 & 931.

ART. 795. The validity of a will as to its form►{extrinsic validity}depends upon the observance of the law in force at the time it is

made.►{Not at the time of the death of the decedent, hence, if valid atthe time the will was made but void at the time of death of the testatorthe will is valid.}

A. Kinds of Validity1. Extrinsic validity refers to the forms & solemnities needed.e.g. Number of witnesses, kind of instrument2. Intrinsic validity refers to the legality of the provisions in aninstrument, contract or the will.e.g. WoN the omission of a child in the will renders the whole willvoid; WoN a compulsory heir has been given his rightful share.

B. General Rules on Validity• EXTRINSIC VALIDITY

1. From the viewpoint of TIME — what must be observed is thelaw in force at the time the will is MADE or EXECUTED.2. From the viewpoint of PLACE or COUNTRY — what lawmust be observed depends:

a) if testator is Filipino, he can observe Philippine laws(ART. 804-814); or those in the country where "he maybe"►{country of domicile or residence}(ART. 815); or thosein the country where he executes the will (ART. 17, lex locicelebrationis or locus actum).b) {non-resident alien resident} if testator is an alienwho is abroad, he can follow the law of his domicile, orhis nationality or Philippine laws (ART. 816) or where heexecutes the will (ART. 17).c) {resident alien decedent} if testator is an alien inthe Philippines, he can follow the law of his nationality(ART. 817) or the Philippine laws, since he executes the willhere (ART. 17).

• INTRINSIC VALIDITY1. From the viewpoint of TIME — successional rights aregoverned by the law in force at the time of the DECEDENT'SDEATH►{because succession takes effect upon the death of thedecedent}. Not at the time of the making of the will2. From the viewpoint of PLACE or COUNTRY {successionalrights are governed by} — the national law of the decedent, thelaw of his country or nationality (ART. 16) regardless of the placeof execution or death {or place of domicile or residence}

C. Reason for this ART.- a testator cannot be expected to know the future, hence, it is enoughthe law in force at the time he makes the will.

Subsection 2. Testamentary Capacity & Intent

A. Distinguish between Testamentary Power & Testamentary Capacity

1. In one viewpoint, testamentary power is the statutory right todispose of property by acts effective mortis causa; whiletestamentary capacity is the right to make a will provided certainconditions are complied with, namely the testator is not prohibited tomake a will, that the testator is at least 18 years of age and that thetestator is of sound mind at the time of the execution of the will.

2. The 2nd viewpoint states that the testamentary capacity may beclassified into 2 kinds – active and passive. The former often referred toas the testamentary power may also be referred to as plaintestamentary capacity.

3. In the 3rd viewpoint, testamentary capacity is the ability of one tomake a will, while testamentary power is the privilege ground by thelaw to someone to make a will.

ART. 796. All persons►{only natural persons} who are not expresslyprohibited by law may make a will.

A. Who can make wills

1. General rule is CAPACITY. Incapacity is the exception.

2. General qualifications:a) 18 years old or overb) soundness of mind during the will's creation

3. a convict under civil interdiction is allowed because civil interdictiononly prohibits a disposition of property inter vivos, not mortis causa.

• testamentifaccion active – capacity to make a will• testamentifaccion passive – capacity to inherit

ART. 797. Persons of either sex under eighteen years of age cannotmake a will.

ART. 798. In order to make a will it is essential that the testator be ofsound mind at the time of its execution.

ART. 799. To be of sound mind, it is not necessary that the testator bein full possession of all his reasoning faculties, or his mind be whollyunbroken, unimpaired, or unshattered by disease, injury or othercause.

[Memorize] It shall be sufficient if the testator was at that timeof making the will [1] to know the nature of the estate to be disposedof, [2] the proper objects of his bounty, and [3] the character of thetestamentary act.

A. Soundness of mind requires:

1. Testator knows the nature of the estate to be disposed of (character,ownership of what he's giving)

2. Testator knows the proper objects of his bounty (by persons who forsome reason expect to inherit something from him)

3. Testator knows the character of the testamentary act (that it is reallya will, that it's a disposition mortis causa, that it's essentiallyrevocable)

B. Senility (infirmity of old age) should be distinguished from seniledementia (decay of mental faculties) since the latter, when advancedor absolute, may produce unsoundness of mind resulting intestamentary incapacity.

C. How unsoundness of mind is manifested

1. Religious delusions resulting in the unsettling of judgement

2. Blind extraordinary belief in spirits while executing a will

3. Monomania (insanity on a single subject) – if this happens to be onthe subject of wills or succession

4. Insane delusion – belief in things which no rational mind wouldbelieve to exust

5. Drunkenness if this results in failure to know the nature of thetestamentary act

6. Congenital intellectual deficiency

7. A comatose stage which prevents the testator from talking orunderstanding

8. State of delirium

ART. 800. The law presumes that every person is of sound mind, in theabsence of proof to the contrary.

The burden of proof that the testator was not of sound mind atthe time of making his disposition is on the person who opposes theprobate of the will; but if the testator, one month, or less, beforemaking his will was publicly known to be insane, the person whomaintains the validity of the will must prove that the testator madeduring a lucid interval.

A. Instances when testator is presumed insane1. If the testator, 1 month or less before making his will ispublicly known to be insane.

2. If the testator made the will after he had been judiciallydeclared insane, & before such order has been set aside or lifted.

ART. 801. Supervening incapacity►{or subsequent} does notvalidate an effective will►{valid & duly probated}, nor is the will of anincapable validated by the supervening of capacity.

— JRT —

ART. 802. A married woman may make a will without the consent of herhusband and without the authority of the court.

ART. 803. A married woman may dispose by will of all her separateproperty as well as her share of the conjugal partnership or absolutecommunity property.

— JRT —

Subsection 3. Forms of Wills

A. Kinds of Wills

1. Ordinary or notarial will – that which requires among otherthings, an attestation clause, & acknowledgment before the notarypublic.

2. Holograph/ic will – the most important feature of which is its beingwritten entirely, from the date to the signature, in the handwriting ofthe testator. Here, neither an attestation clause nor anacknowledgment before a notary public is needed.

— VERY VERY IMPORTANT —

ART. 804. {notarial or holographic}◄Every will►{referring to the act}must be in writing and executed in a language or dialect known to thetestator►{even if not known to the instrumental or notarial witness, incase of notarial will}

ART. 805. {notarial only}◄Every will►{referring to the document},other than a holographic will, must be subscribed►{signed} at the endthereof►{every page} by the testator himself or by the testator'sname written by some other person in his presence, and by his expressdirection, and attested►{or certified or witnessed} and subscribed bythree or more credible►{Art. 820} witnesses in the presence of thetestator and of one another.

The testator or the person requested by him to write his nameand the instrumental witnesses of the will, shall also sign, asaforesaid►{in the presence of the testator and of one another}, eachand every page thereof, except the last, on the left margin, and all thepages shall be numbered correlatively, in letters placed on the upperpart of each page.

The attestation shall state the [1] number of pages used uponwhich the will is written, and [2] the fact that the testator signed thewill and every page thereof, or caused some other person to write hisname, under his express direction, in the presence of the instrumentalwitnesses, and that the latter witnessed and signed the will and all thepages thereof in the presence of the testator and of one another.

If the attestation clause►{not the will itself} is in a language notknown to the witnesses, it shall be interpreted to them.

A. Requirements►{or requisites} of a Notarial or Ordinary Will

1. Must be in writing (handwritten, typed or printed)

2. Must be executed in a language or dialect known to the testator

3. Must be subscribed at the end thereof by the testator himself or bythe testator's name written by another person in his presence, and byhis express direction

• if the will is signed anywhere else but not in the end, the will isNOT VALID• if after the signature there are other clauses or provisions, notonly should those clauses be considered void but also the wholewill from beginning to end and will therefore be denied probate• END of the will – the logical end, not physical• full name must appear• if the testator's first name appears without surname, the will isvalid• misspelled, abbreviated, or by nickname, or by "father" or"mother", or in an assumed name is all right provided intendedsame to be signature• testator can sign with his thumbmark, a rubber stamp, or anengraved dye, provided, he intends the same to be his signature• even if a person knows how to write his name, he can still use amark as a signature• express direction – the delegate must be expressly authorizedto do so

4. Must be attested and subscribed by 3 or more credible witnesses inthe presence of the testator and one another.

[Note: “In the presence” does not necessarily require actually seeingbut possibility of seeing without any physical obstruction. Hence, when

a person merely has his back turned, the signing is done in hispresence since he could have cast his eyes in the proper direction. Onthe other hand, if there is a curtain separating the testator and thewitnesses from the other witness, there will be a physical obstructionand will cannot be valid.]

5. The testator or the person requested by him to write his name, & theinstrumental witnesses of the will shall sign on each and every page,except the last, on the left margin

• The law said “page” not “sheet”. A sheet has two pages, thefront and back side. If both are used, both must be signed• If the last page, contains only the attestation clause, thetestator need not sign on the margin• If the whole, including the attestation clause, consist of only 1page, no marginal signatures are needed since this would bepurposeless since the page already has all the necessarysignatures• Whenever the marginal signatures are required, although thelaw says on the left margin, the purpose is served even if theyare on the right, top, or bottom margin, for the only purpose is toidentify the pages used and thus prevent fraud.

6. All pages shall be numbered correlatively in letters placed on theupper part of each page[Note: Correlative numbering in letter means one, two, etc. Butnumbers are sufficient such as page 1, 2, 3, etc.]

7. The attestation clause shall provide:a) number of pages usedb) the testator signed, or expressly caused another to sign) thewill & every page thereof in the presence of the instrumentalwitnesses[NOTE: absence of the attestation clause is a fatal defect]c) the instrumental witnesses witnessed & signed the will & allthe pages thereof in the presence of the testator & one anotherd) while the testator is required to know the language of the will,the witnesses are not required to know the language of theattestation clause. It is sufficient that it►{the language of theattestation clause} be translated to them.• Example of an attestation clause:

This will consisting of 3 pages was signed by the testatorand by all of us in the presence of all of us and the testator.

Sgd►(Signed A)Sgd►(Signed B)Sgd►(Signed C)

[Note: The testator does not sign in the attestation clause.]

B. Other comments on formalities of notarial will1. It is not essential that the will has to be read to the witnesses or that they know the contents. While they are required to participate in the acknowledgment in the notary public, still whatthey will acknowledged is not the will but the attestation clause2. It is not necessary that the notarial will be dated.• Why is it that the law does not require that the notarial will be dated?

ANS: The reason is, if the notarial will is not dated the date of acknowledgment before the notary public is deemed the day of the execution of the will.

ART. 806. Every will►{notarial} must be acknowledged before anotary public by the testator and the witnesses. The notary public shallnot be required to retain a copy of the will, or file another with theoffice of the Clerk of Court. {Will is confidential in nature, hence, thelaw. This refers to the 2nd sentence.}

A. Acknowledgement – the act of one who has executed a deed ingoing before some competent officer or court & declaring it to be hisact or deed.

B. Jurat – that part of an affidaivit whereby the notary certifies thatbefore him, the document was subscribed & sworn by the executor.

C. Intervention of Notary PublicThe notary public does not have to be present at the time of the

execution of the will. He cannot however be one of the instrumentalwitnesses.

Ordinarily, the notary public is not required, not even allowed toread the will or know the contents of the will unless the testatorpermits him to do so. It should be remembered that the notary public isnot the person acknowledging the will. It is he before whom it isacknowledged. The only instance where the notary public is required toread the will is in the situation regarding blind testators.

The testator and the instrumental witnesses do not have to makethe acknowledgement in the presence of one another. This is requiredonly in the attestation clause, not in the acknowledgement.

ART. 807. If the testator be deaf, or a deaf-mute, he must personallyread the will, if able to do so; otherwise, he shall designate twopersons to read it and communicate it to him, in some practicablemanner, 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 notarypublic before whom the will is acknowledged.

A. Disqualification of Notary PublicThe notary public before whom the will has been acknowledged

cannot be one of the 3 witnesses of said will, in view of the absurdity ofa person acknowledging something to himself.

— VERY VERY IMPORTANT —

— JRT —

ART. 809. In the absence of bad faith, forgery or fraud, or undue orimproper pressure & influence, defects and imperfections in the formof attestation or in the language used therein shall not render the willinvalid if it is proved that the will was in fact executed and attested incompliance with all the requirements of Article 805.

Note: the law speaks not of the substantive defects but defects &imperfections —A) in the FORM of the attestationB) in the LANGUAGE used therein

A. How substantive defect can be cured?– only by evidence within the will itself

— JRT —

[Memorize] ART. 810. A person may execute a holographic willwhich must be entirely written, dated, and signed by the hand of thetestator himself. It is subject to no other form, and may be made in orout of the Philippines, and need not be witnessed.

A. Holographic will – is one entirely written, dated, and signed by handof the testator.

B. Formalities for a Holographic Will1. Language must be known to the testator2. Will must be entirely written in the hand of the testator himself3. Will must be dated – date, month & year4. Will must be signed by the testator himself

• Signature must appear at the end of the will. The law does notrequire that every page, assuming there are 2 or more pages, besigned by the testator.

5. There must be animus testandi6. Must be executed at the time that holographic wills are allowed,

not before, the time of death being immaterial

C. Other Features1. No witnesses are required.2. Even the mechanical act of drafting a holographic will may be

left to someone other than the testator, as long as the testatorhimself copies the draft in his own handwriting, dates it and signsit.

ART. 811. In the probate of a holographic will, it shall be necessary thatat least one witness►{identifying witness} who knows thehandwriting and signature of the testator explicitly declares that thewill and the signature are in the same handwriting of the testator. Ifthe will is contested, at least three of such witnesses shall be required.

[JRT] In the absence of any competent witnesses referred to inthe preceding paragraph, and if the court deem it necessary, experttestimony may be resorted to. [JRT]

A. Probate of Holographic Wills1. Probate – the allowance►{or approval} of a will by the court afterits due execution►{compliance with the formalities required by law}and testamentary capacity of the testator has been proved2. Proof of identity of the testator's signature & handwriting isimportant, otherwise, the will is VOID.3. Proof may be:a) uncontested – one identifying (subscribing not necessary) witness. Ifno witness, expert may be resorted to.b) contested – at 3 witness. If none are available, experts may becalled upon; otherwise, the will may be frustrated thru no fault of hisown.

B. May a will be probated during the lifetime of the testator?ANS: Yes, by express provision of Art. 838, 2nd paragraph.If the testator himself is the petitioner and no opposition or contest isfiled with the probate court, the fact that he affirms that theholographic will and the signature are in his own handwriting shall besufficient evidence of the genuineness and due execution thereof. (Rule76, Sec. 12)

C. If a holographic will has been lost or destroyed with intent to revokeand

— IMPORTANT —

ART. 812. In holographic wills , the dispositions►{additional} of thetestator written below his signature►{original} must be dated andsigned by him in order to make them valid as testamentarydispositions.

A. Dispositions after the {original} signature, has been dated andsigned by the testator is VALID. If signed by not dated or if dated butnot signed, the additional dispositions are VOID►{but the dispositionspreceding the original signature are valid, in other words, the originalwill is valid; except under Art. 813} for lack of an essential requisite.

— IMPORTANT —

Example:The estate of A consisting of bank deposits, cars, old appliances,

other personal properties, family home, 3 residential lots, 2-hectarfarmland, and an apartment lot and building is worth P40M, more orless. On January 2, 2014, A, a widower with 2 legitimate children B andC, made a holographic will as follows:

I hereby declare that:1. Out of my estate worth P40M, ½ thereof or P20M shall go

to my 2 legitimate children B and C as their legitime atP10M each.

2. I bequeath P2M cash to my granddaughter D.3. I devise my residential lot located in Magarao, Camarines

Sur worth P3M to my grandson E.4. I devise my 2-hectar farmland worth P4M to my youngest

sister M.Sgd. (Signed A)January 2, 2014

On July 2014, December 24, 2014 and June 26, 2015, A made additional dispositions as follos:

5. I bequeath my Rolex watch worth P800k to my friend G.(Signed A)

6. I bequeath my BMW car worth P2.5M to my brother H.(Signed A)

7. I devise my residential lot located in Bombom, Camarines Sur worth P1.7M to my aunt I.

(Signed A)June 26, 2015

This is valid because of Art. 813.

ART. 813. When a number of dispositions►{below the originalsignature of the testator} appearing in a holographic will are signedwithout being dated, and the last disposition has a signature and date,such date validates the dispositions preceding it, whatever be the timeof prior dispositions.

A. Rules for Curing Defects• If last disposition is SIGNED and DATED by HIMSELF

a) preceding dispositions which are SIGNED but NOTDATED are validated.b) preceding dispositions which are NOT SIGNED butDATED are VOID.c) preceding dispositions which are NOT SIGNED andDATED are VOID, unless written on the SAME date andoccasion as the latter disposition.

• If last disposition is SIGNED and DATED by ANOTHER

a) if without the testator's consent, same will not affect theprevious dispositions, which remains VOID, if in themselvesVOID; and remain VALID, if in themselves VALID.b) if with the testator's consent, same effect as previous,because the latter disposition is not really HOLOGRAPHIC.

ART. 814. In case of any insertion, cancellation, erasure or alteration ina holographic will, the testator must authenticate the same by his fullsignature.

A. Authentication of Correction by Full Signature• full signature means full or usual or customary signature• if without full signature, only the alteration is VOID. However, if theDATE or SIGNATURE is altered & has no signature, the entire will isVOID.

ART. 815. When a Filipino is in a foreign country, he is authorized►{orpermitted or allowed} to make a will in any of the forms►{except jointwills} established by the law of the country in which he may be. Suchwill may be probated in the Philippines.

A. Formalities of Wills Executed by Filipinos AbroadA Filipino if in California can make a will there in accordance with theforms {extrinsic validity} of:

a) Californiab) The Philippines

[Note: There is one exception to this Article, and that is a Filipinocannot execute in abroad a joint will even if the same is valid there.]

B. Bar Question Carlos Reyes, a Filipino citizen, residing in Washington, USA,

executed a will in accordance with the laws of said state. Assuming thetestator returns to the Philippines and dies here without modifying orexecuting a new will in accordance with Philippine laws, how shall isestate be dealt with, estate or intestate?

ANS: The succession will be testamentary since under 815 he isallowed to make a will in any of the forms allowed in the foreign statewhere he may be. The will he executed in Washington may indeed beprobated in the Philippines. Of course, intrinsic validity of the will, theamount of successional rights and the order of succession will begoverned by his national law, that is the Philippine law on Succession.

C. If a will is probated abroad, is the will probated again in thePhilippines?

In one sense, there is no need for an ordinary or unusual probatehere. What is required however is that there must be a proceedinghere to proved that indeed the will had already been probated abroad.In other wards, the rule is the same as with proving the existence of aforeign judgement.

ART. 816. The will of an alien who is abroad►{non-resident alien}produces effect in the Philippines if made with the formalitiesprescribed by the law of the [a] place in which he resides {ordomicile}, or according to[b] the formalities observed in his country, or[c] in conformity with those which this Code prescribes {Philippinelaws}. {[d] or law of the place where the will was executed}

A. If a joint will is made by a non-resident alien in accordance with theformalities prescribed in “[a]”, “[b]” or “[d]”, and is valid there, it isalso valid here in the Philippines. If said joint will is made in accordance

with the formalities prescribed in “[c]”, it is VOID here in thePhilippines.

B. A Chinese domicile in Argentina is on his way to Manila. The boatwhere he is stay for one day is in Japan. In Japan, can he make a will. Ifso, what formalities should he observe?

ANS: This is a typical case of an alien abroad. Therefore he canmake a will in accordance with the testamentary formalities ofArgentina {country of domicile}, China {country of his nationality},Philippines, or Japan.

— JRT —

ART. 817. A will made in the Philippines by a citizen or subject ofanother country, which is executed in accordance with the law of thecountry of which he is a citizen or subject, and which might be provedand allowed by the law of his own country, shall have the same effectas if executed according to the laws of the Philippines.

— JRT —

[Memorize] ART. 818. Two or more persons cannot make a will jointly,or in the same instrument, either for their reciprocal benefit or for thebenefit of a third person.

A. Joint Wills – those which contain in ONE instrument the will of twoor more persons jointly signed by them

B. Reciprocal or Mutual Wills – those that provide that the survivorof the testators will succeed to all or some of the properties of thedecedent.

C. Mutual wills or reciprocal wills are, by themselves, valid. Joint wills,whether reciprocal or not, are void.

D. A joint will executed by a husband and his wife was erroneouslyprobated by the RTC. There being no appeal, the judgement becamefinal. Can the joint will be given effect.

ANS: Yes, for while joint wills are prohibited and should havebeen disallowed, still in this case, the judgement had already becomefinal. This is not a case of lack of jurisdiction. It is simply an instance ofan erroneous but valid judgement. Otherwise stated, this is merely anerror in law, not an error in jurisdiction. The principle is even applicableif both estate clause of the joint will were already death at the time thewill was probated. If only one was dead and the other was still alive,the final judgement can only have reference to the estate of saiddeceased.

E. Reciprocal wills between a husband and wife, as long as not madejointly, are valid.

ART. 819. {Joint wills}◄Wills, prohibited by the preceding article,executed by Filipinos in a foreign country shall not be valid in thePhilippines, even though authorized by the laws of the country wherethey may have been executed.

A. Know that Art. 819 is an expression of public policy and it's clearlyone exception to the rule of “lex loci celebrationis”. Note, however,that the provision only refers to Filipinos. Hence, if made by foreignersabroad and valid in accordance with Art. 816, the same should beconsidered as valid here.

B. If executed in the Philippines {in accordance with Philippine laws bya foreigner}, same should be considered void►{if executed in thePhilippines in accordance with their national law, the joint will is valid}.

Subsection 4. Witnesses to Wills

— JRT —

ART. 820. Any person of sound mind and of the age of eighteen yearsor more, and not blind, deaf or dumb, and able to read or write, may bea witnesses to the execution of a will mentioned in Article 805 of thisCode.

— JRT —[MEMORIZE]

A. Qualifications of Witnesses for Notarial Willsa) be of sound mindb) be at least 18c) be able to read & writed) not be blind, deaf or dumbe) be domiciled in the Philippinesf) not have been CONVICTED (by final judgement) ofFALSIFICATION of a document; PERJURY; or FALSE TESTIMONY

B. The witness need not know how to read & write in the will'slanguage. After all, he doesn't even need to know the contents of thewill.

[MEMORIZE]

ART. 821. The following are disqualified from being a witness to awill►{notarial}:(1) Any person not domiciled in the Philippines;(2) Those who have been convicted of falsification of a document,perjury or false testimony

A. Is the spouse or son or daughter of the testator qualified as witnessto the latter's will?

ANS: Yes, provided the spouse or son or daughter of the testatorpossesses all the qualifications under Art. 820 and none of thedisqualifications under Art. 821. The relationship of the witness to thetestator is not a disqualification.

B. It is not essential that the witness be a citizen of the Philippines fordomicile is what the law merely requires. Domicile is the place ofhabitual residence.

— JRT —

ART. 822. If the witness attesting the execution of a will are competentat the time of attesting, their becoming subsequently incompetentshall not prevent the allowance of the will.

— JRT —— VERY VERY IMPORTANT —

[Memorize] ART. 823. If a person►{witness} attests the execution of awill {and}, to whom or to whose spouse, or parent {of the witness},or child {of the witness}, a devise or legacy is given by such will, such

devise or legacy shall, so far only only►{other dispositions are valid}as concerns such person, or spouse, or parent, or child of such person,or anyone►{creditor of the witness} claiming under such persons orspouse, or parent, or child, be void, unless there are three othercompetent witnesses to such will. However, such person so attestingshall be admitted as a witness as if such devise or legacy had not beenmade or given.

A. Witnesses cannot inherit1. The persons named in the Article are incapacitated to inherit,but not incapacitated as witness. Hence, only the partappertaining to them should be considered void; unless, thereare 3 witnesses other than the one incapacitated to inherit.2. The disqualification extends to —

a) the witnessb) spouse of the witnessc) parent of the witnessd) child of the witnesse) anyone claiming the right of said witness (e.g. Creditorof the witness if said creditor has not been paid yet)

B. If the witness, spouse, parent or child (of the witness) is acompulsory heir, s/he is still entitled to the LEGITIME, otherwise thiswould be an easy way to sort of disinherit him without any justifiablecause. The purpose of the law being to prevent undue influence, it isunderstood that the prohibition refers only to free portion.

— VERY VERY IMPORTANT —

ART. 824. A mere charge►{or obligation or debt of the testator} onthe estate of the testator for the payment of debts due at the time ofthe testator's death does not prevent his creditors from beingcompetent witnesses to his will.

A. The charge referred to here is a debt of the estate or of the testator.

B. While a creditor who acts as a witness is disqualified to inherit, he isqualified to receive his credit, which after all cannot be considered agift.

Subsection 5. Codicils and Incorporation by Reference

— IMPORTANT —

ART. 825. A codicil is a supplement or addition to a will, made after theexecution of a will and annexed {thereto} to be taken as a part thereofby which any disposition made in the original will be explained, addedto, or altered.

A. Codicil – derived from the Latin "codex" & literally means "littlecode" or "little will".

B. In case of conflict between the will & the codicil, it is understoodthat the latter should prevail, it being the later expression of thetestator's wishes.

— IMPORTANT —

ART. 826. In order that a codicil may be effective, it shall be executedas in the case of a will.

A. Formalities of Codicilsa) notarial or ordinary codicilsb) holographic codicils

[Note: if a codicil is not executed with the formalities of a will, it is void.Also, a valid will can never be revoked, expressly or impliedly, by aninvalid codicil.]

ART. 827. If a will, executed a required by this Code, incorporates intoitself by reference any document or paper►{such as inventory ofgoods and schedule of receivables if the testator is a trader}, suchdocument or paper shall not be considered as part of the will unlessthe following requisites are present:

(1) The document or paper referred to in the will must be inexistence at the time of the execution of the will;

(2) The will must clearly describe and identify the same, statingamong other things the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as thedocument or paper referred to therein; and

(4) It must be signed by the testator and the witnesses on eachand every page, except in case of voluminous books►{at least someof them AND the last page be signed} of account or inventories.

A. Said documents or inventories, when referred to in a notarial will, donot need any attestation clause, because the attestation clause of thewill itself is sufficient. (Unson v. Abdlla)

B. Requisites:1. The document or paper referred to in the will must be inexistence at the time of the execution of the will. Therefore:

a) reference to future papers will render the incorporationvoid, though the will is still valid.b) the will must refer to the papers as having been made; itis not enough that in truth it was already in existence.

2. The will must clearly describe and identify (location, generalappearance) the same, stating among other things the numberof pages thereof. (This is true even in voluminous books ofaccounts and inventories)3. It must be identified by clear and satisfactory proof as thedocument or paper referred to therein. (Parol evidence orevidence aliunde is needed here)4. It must be signed by the testator and the (same instrumental)witnesses on each and every page, except in case of voluminousbooks of account or inventories.

C. Generally, incorporation can be done only in notarial wills. But, if aholographic will has at least 3 credible & qualified witnesses, thenthere can be a proper incorporation by reference. Moreover, if aholographic will (w/out witnesses) refers to a document entirelywritten, dated, & signed in the handwriting of the testator, there canalso be a proper incorporation by reference.

Subsection 6. Revocation of Wills and TestamentaryDispositions

[Memorize] ART. 828. A will may be revoked by the testator at anytime before his death. Any waiver or restriction of this right is void.

A. Revocability of a WillUntil the death of the testator, a will is ambulatory►{alterable} andrevocable.

B. The heirs do not acquire any vested right to the disposition of a willuntil after the testator's death.

C. Provisions in a will which are ordered to be effected immediately,even during the testator's lifetime, are all right, provided the properformalities and requisites►{of a donation such as public document, ifreal property is donated, and acceptance on the part of the donee} arepresent but they are not►{they are donations inter vivos} reallytestamentary dispositions.

[JRT] ART. 829. A revocation done outside the Philippines, by a personwho does not have his domicile in this country, is valid when it is doneaccording to the law of the place where the will was made, oraccording to the law of the place in which the testator had his domicileat the time; and if the revocation takes place in this country, when it isin accordance with the provisions of this Code.

A. Revocation Outside the Philippines1. if not domicile in the Philippines

a. follow of place where will was made; orb. follow of law of place where testator is domicile

2. if domicile in the Philippinesa. follow the law of the Philippines; orb. follow the rule of “lex loci celebrationes” of that revocation

B. Revocation in the PhilippinesFollow the Philippine law. This is true whether or not the domicile

is in the Philippines.

[Memorize] ART. 830. No will shall be revoked except in the followingcases: {Ways or manner of revocation}

(1) By implication►{or operation} of law; or(2) By some will, codicil, or other writing ►{deed of revocation

or affidavit} executed as provided in the case of wills; or(3) By burning, tearing, cancelling, or obliterating the will with

the intention of revoking it, by the testator himself, or by some otherperson in his presence, and by his express direction. If burned, torn,cancelled, or obliterated by some other person, without the expressdirection of the testator, the will may still be established, and theestate distributed in accordance therewith, if its contents, and dueexecution, and the fact of its unauthorized destruction, cancellation, orobliteration are established according to the Rules of Court.

A. Revocation by Implication of Law– the kind of revocation produced by OPERATION of LAW when

certain acts or events take place after a will has been made, renderingvoid or useless either the whole will or certain testamentarydispositions therein.[Note, however, the revocation of a legacy does not operate to revokethe entire will. Only total and absolute revocation of the entire will willprevent the probate of the revoked testament.]

• Some instances of revocation by implication of law:1. When after the testator has made a will. He sells, ordonates the legacy or devise.►{only the legacy or devise isrevoked and the will remains valid as to the otherprovisions}

Example:T gave A a legacy of his car in his will. A

year later, T sold the car to B for P2M. On his death,will A get the car, the P2M, or nothing?

ANS: A gets nothing because by expressprovision►{Art. 957} of law, T's alienation of the carrevoke the legacy automatically.

2. Provisions in a will in favor of a spouse who has givencause for legal separation shall be revoked by operation oflaw the moment a decree of legal separation is granted.{Art. 63, no. 4, Family Code}3. When an heir, legatee, or devisee commits an act ofunworthiness. {Art. 1032}4. When a credit had been given as a legacy is judiciallydemanded by the testator.5. When one, some or all of the compulsory heirs havebeen preterited or omitted, the institution of heir is void{but legacies and devises remain valid so long as they arenot inofficious or excessive}.{6. Ammendment of law on Succession prior to testator'sdeath such as when the commendatory law declares thatall properties of the decedent shall be inherited by theRepublic of the Philippines. [This is an example where theentire will is revoked by operation of law].

Another example of revocation of the entire will byimplication of law:

A testator who has several compulsory heirs in thedirect line institutes only one of them to the entirehereditary estate and there are no legacies nor devises.}

B. Revocation by an Overt Act• Requisites:

a) there must be an overt act specified by lawb) there must be a completion►{the testator hasconsidered the will to have been revoked} at least of thesubjective phase of the overt actc) there must be animus revocandi (intent to revoke)d) the testator at the time of revoking must have capacityto make a wille) the revocation must be done by the testator himself, orby some other person in his presence & by his expressdirection.

• The overt act of burninga) a small part of the will burned is sufficient even if thewritings are still visibleb) even if there's an overt act to revoke, if there's no overtact of burning, the will is not revokedExample:

A wanted to revoke his will so he threw it into thestove so that it would be burned later on when a fire wouldbe lighted in the stove. However, the will was laterremoved by another person from the stove before thestove was lighted. There was no revocation here for whilethere was intent to revoke, there never was an overt act ofburning. However the person who prevented the revocationif he be an heir or a legatee or devisee will still not inherit,not because of revocation by means of an overt act, forindeed there was no overt act, but because of revocationby implication of law, said person may be incapacitated toinherit by reason of unworthiness. {Art. 1032, no. 7}c) accidental burning does not revoke the will due to lack ofintention

• The overt act of tearinga) even a slight tear is sufficient. Of course, the greater thetear, the greater is the evidence of animo revocandi

b) the mere act of "crumpling" or the removal of the"fastener" binding the pages of a will, does NOT constitutea revocation, even though there be animo revocandi

• The overt act of obliterating or cancellinga) obliteration – renders the words illegible; cancellation– the drawing of lines across a text, but the words remainlegibleb) if all parts are cancelled or obliterated, or if thesignature is cancelled or obliterated, the whole will isrevoked, the reason of the case of the signature being thatthe act strikes at the existence of the whole instrumentc) cancellation or obliteration of non-vital part leaves theother parts in force

C. Revocation by the Execution of Another Will or Codicil• revocation in this manner may be expressed or implied(implied revocation consists in complete inconsistency betweenthe two wills)• the revoking will must be a valid will►{extrinsically valid andprobated}; otherwise, there is no revocation• the revocation made in the subsequent will must indeed be adefinite one. A mere declaration that some time in the future, thefirst would be revoked is not enough. However, there is nothingwrong in making the revocation conditional, that revocationtakes place only if the condition is fulfilled. (Doctrine ofConditional Revocation) (Dependent Relative Revocation)

ProblemTestator made will no. 1. After 1 week, he wanted to revokesame. So, he executed will no. 2, expressly will no. 1. In thebelief that he had already accomplished what he wanted,he then tore into 2 pieces will no. 1. On his death, it wasdiscovered that will no. 2 had not been validly executed.Can we consider will no. 1 as having been revoked orshould it still be given effect?

ANS: In one case, it was held that while it is true thatrevocation was not produced by the execution of anINVALID will, revocation was made through an overt act,the act of tearing or destruction with animo revocandi.Hence, the court concluded that will no. 1 had indeed beenrevoked.

However, in a subsequent case, it was ruled thatthere was there was no revocation either by subsequentwill for same was invalid, or an overt act since the act ofdestruction or tearing the first will was prompted by thebelief that the second will had been validly executed. Art.833, this states that a revocation of a will based on a falsecause or illegal cause is null and void.

D. Probate of Lost or Destroyed Notarial Wills• Contents may still be proven by:a) oral or parol evidenceb) carbon copy – because a carbon copy signed by all concernedis just as good as the original

ART. 831. Subsequent wills which do not revoke the previous ones in anexpress manner, annul only such dispositions in the prior wills as areinconsistent with or contrary to those contained in the later wills.

A. This Article speaks of implied revocation, & this may be total orpartial.

B. The law does not favor this, & therefore, efforts to reconcile must bemade.

ART. 832. A revocation made in a subsequent will shall take effect,even if the new will should become inoperative►{not invalid} byreason of incapacity►{if the heir or devisee or legatee designated inthe subsequent will is guilty of an act of ingratitude or act ofunworthiness} of the heirs, devisees or legatees designatedtherein►{subsequent will}, or by their renunciation.

[IMPORTANT] ART. 833. A revocation of a will based on a falsecause►{comment A} or an illegal cause►{revoking the original willby substituting it with another instituting his common law wife as thesole heir} is null and void►{and the original will subsisted}.

A. Example:T made a will making A his heir. T then learned that A was dead.

So he made another will instituting B as heir. If A turns out to be stillalive, who inherits?

ANS: A inherits because the revocation was based on a falsecause, {and the original will is revived or subsisted.}

[IMPORTANT] ART. 834. The recognition of an illegitimate child doesnot lose its legal effect, even though the will wherein it was madeshould be revoked.

A. According to Art. 278, voluntary recognition od an illegitimate childmay be done:

(1) in a record of birth(2) will(3) statement before a court of record(4) any authentic writingNow then, if the will in which recognition had been made issubsequently revoked, the recognition still remains valid.

B. Reason:1. While a will is essentially revocable, recognition is not, unlessthere be vitiated consent2. Recognition is not really a testamentary disposition3. Recognition does not wait for the testator's death to becomeeffective

[Note: this article only applies if the recognizing will is extrinsicallyvalid; otherwise, there can be no recognition that can be revoked.]

Subsection 7. Republication and Revival of Wills

ART. 835. The testator cannot republish►{or re-establish}, withoutreproducing in a subsequent will, the dispositions comtained in aprevious one which is void as to its form►{extrinsically void}.

A. Republication – the process of re-establishing a will, which hasbecome useless because it is void►{extrinsically}, or had been{extrinsically valid but} revoked.

B. How Made:a) re-execution of the original will (original provisions areCOPIED), and this time there must be compliance with the lawb) execution of a codicil (implied republication)

ART. 836. The execution of a codicil referring to a previous will has theeffect of republishing the will as modified by the codicil.

A. Requisites & Limitations of Republication1. To republish a will void as to its FORM, all the dispositions must bereproduced or copied in the new or subsequent will.2. To republish a will valid as to its form but already revoked, theexecution of a codicil which makes reference to the revoked will issufficient.Note: there should be nothing wrong with the RE-EXECUTION.

ART. 837. If after making a will, the testator makes a second willexpressly revoking the first►{“this will revokes the first dated...”},the revocation of the second will does not revive the first will, whichcan be revive only by another will or codicil.

A. Distinction between Republication or RevivalRepublication is an act of the TESTATOR. Revival (restoration or re-establishment of revoked will or revoked provisions thereof, toeffectiveness, by virtue of legal provisions) is one that takes place byOPERATION OF LAW.

B. Revocation takes immediate effect.

C. Examples of RevivalWhile omission►{or preterition} of a compulsory heir►{in the

direct line} in the institution of heirs annuls the institution, still if theomitted dies ahead►{or predeceases} of the testator, theinstitution is revived►{the institution becomes valid} withoutprejudice to the right of representation►{the legitimate children of theomitted heir who predeceased the testator shall inherit the legitime ofthe latter. Right of representation pertains only to the legitime of theperson represented.}

If after making a will, the testator makes a second willimpliedly►{there is complete inconsistency between the first andsecond will} revoking the first, the revocation of the second will revivesthe first will.

D. Problems1. I made 3 wills. Will no. 2 expressly revoked will no. 1. Will no.3revoked will no. 2. Is will no. 1 revived?

ANS: No, by express provision of Art. 837. The rule is based onthe principle that the revocatory clause of the second will took effectimmediately►{or at the time of making the second will} or at theinstant the revoking will►{will no. 2} was made. Principle of Instanter{means that why a will is a disposition mortis causa, a revocation takeseffect inter vivos}.2. T made 3 wills. Will no. 2 is completely inconsistent with andtherefore impliedly repeals will no. 1. Later, will no. 3 revokes will no. 2.Is will no. 1 revived?

ANS: Yes, this is a clear inference from Art. 837 since the articleuses the word expressly it follows that in case of an implied revocationby the second will, an automatic revival of the first.3. A made will no. 1, then will no. 2 expressly revoking the first.Then, he destroyed will no. 2, and orally expressed his desire that hisfirst will be followed. Should this be allowed?

ANS: No, the oral expression of the desire to revive cannot begiven effect. He should have made a new will or codicil.

Subsection 8. Allowance and Disallowance of Wills (Probate)

— VERY VERY IMPORTANT —

ART. 838. No will shall pass either real or personal property unless it isproved and allowed in accordance with the Rules of Court. {Statedotherwise, no property, whether real or personal, shall pass to the heirsby virtue of a will unless said will is proved before and allowed by thecourt.}

{Ante-mortem probate} The testator himself may, during hislifetime, petition the court having jurisdiction for the allowance of hiswill. In such case, the pertinent provisions of the Rules of Court for theallowance of wills after the testator's death shall govern.

[JRT] The Supreme Court shall formulate such additional Rules ofCourt as may be necessary for the allowance of wills on petition of thetestator. [JRT]

Subject to the right of appeal►{Once a will is probated andno appeal has been made on the decision of the probate court the dueexecution of the will becomes conclusive and questions on theformalities of the will and testamentary capacity of the testator can nolonger be entertained}, the allowance►{or approval} of the will, eitherduring the lifetime of the testator or after his death►{post mortem},shall be conclusive as to its due execution►{such as compliance withformalities required by law and testamentary capacity of the testatorbut it does not include the validity of testamentary provisions}.

A. Probate – the act of proving before a competent court the dueexecution of a will by a person possessed of testamentary capacity, aswell as approval thereof by said court. Probate is one thing, the validityof testamentary provisions is another.

B. 2 Kinds of Probate1. Probate during the testator's lifetime (can probate, alter, orrevoke will multiple times so long as the testator's alive)2. Probate after the testator's death

C. In a {Post-Mortem only} Probate Proceeding, the Court:a) orders the probate proper of the willb) grants letters testamentary or letters with a will annexedc) hears & approves claims against the estated) orders the payment of the lawful debtse) authorizes the sale, mortgage, or any other encumbrance ofreal estatef) directs the delivery of the estate or properties to those who areentitled thereto

D. Procedure and Reason for "Ante Mortem" Probate1. Testator himself petitions the competent court for the probateof the will2. He then follows the procedure for the post mortem of ordinaryprobate, except insofar as the Supreme Courtmay imposeadditional rules for ante mortem probates3. Reason: to prevent or minimize fraud, intimidation & undueinfluence; also, to enable the testator to correct at once failure toobserve legal requirements.

E. 2 Parts of Post-Mortem Probate:1. The probate proper that deals with the EXTRINSIC VALIDITY2. The inquiry into INTRINSIC VALIDITY & the DISTRIBUTION itselfof the property

F. The petition for probate must, among other things, state:

a) the fact that the testator is dead, & the place & time of saiddeathb) the fact that the deceased left a will, copy of which has to beattached to the petitionc) the fact that the will was executed in accordance with legalrequirementsd) names, ages, addresses of the executor & all interestedparties or heirse) the probable value & character of the property of the estatef) the name of the individual whose appointment as executor isbeing asked forg) if the will has not been delivered to the court, the name of theperson who is supposed to have the will in his custody

G. In court, there must be proof of death (actual or presumed),publication of the notice of hearing, & the compliance of all formalitiesrequired by law

H. The necessary witness must be produced if available, & theirabsence must be satisfactorily explained. (Unson v. Abella) even if thedoesn't remember attesting (Rule 76, Sec. 11) or even if he or alltestifies against the validity & due execution, there is still a chance forthe court to allow the will, if it believes that all legal requirements havebeen complied with. (Testate Estate of Reymundo) It is error to denyallowance just because of contradictions among the witnesses.(Fernandez v. Tantoco) After all, such inconsistencies are notnecessarily fatal to the validity of the will. (Tolentino v. Francisco)However, as a rule, the testimony of the attesting witnesses shouldprevail over expert evidence. (Roxas v. Roxas)

I. For a person to be able to intervene in an administration proceeding,it is necessary for him to be interested in the estate to beadministered.

• interested party – one who would be benefited by the estate(e.g. heir), or one who has a certain claim against the estate,such as a creditor. (Sumilang v. Ramagosa)

J. Distribution – the division, by order of the court having authority,among those entitled thereto, of the estate of a person, after thepayment of the debts & charges.

K. To be conclusive, the probate must have been conducted by the RTCof the province:

a) where he has the real estate (in case of NON-RESIDENTtestator)b) where he resided at the time of his death (in case of aRESIDENT testator)

[Note: all RTCs have jurisdiction. The residence or domicile only affectsthe VENUE. The rule grants jurisdiction to the Court where jurisdictionis first invoked, without taking venue into account.]

Moreover, it is essential that:• it be proved before the court that he died after havingexecuted a will (in case of post mortem probate)• and that the will has already been delivered to the Court

The SC is not inclined to annul proceedings regularly had in alower court, even if it is not the proper venue, if the net result wouldbe to have the same proceedings repeated in some other court ofsimilar jurisdiction. (Rosa Cayetano Cuenco v. CA)

L. The final judgement on a probate may be set aside by a petition forrelief brought within the legal period. Under Rule 38, Sec. 1 of theRules of Court, when a judgement or order is entered against a party inthe RTC thru FAME (fraud, accident, mistake, or excusable negligence),he may file a petition in the same court & in the same cause, askingthe judge, order, or proceeds be set aside.

• PERIODS — petition has to be filed:1. within 60 days after the petitioner learns of thejudgement or oder to be set aside2. and within 6 months after such order or judgement wasentered. Should the judgement lapse, the judgement nowreally becomes FINAL.

M. Procedure in the settlement of estates1. First, proof of testamentary capacity & due execution arepresented, & the court then issues an order allowing ordisallowing the will2. After this is done, the distribution of the estate may be done,after all questions on intrinsic validity are disposed of.

Nacar v. NistalThe creditor of a deceased person, if the credit is because of a

contract, must file the claim in the settlement or administrationproceedings of the estate of the deceased, not sue in a separate actionagainst the administrator.

N. Points, among others, that should NOT be included in the probateorder, since they affect intrinsic validity:

1. Exclusion of the widow from the inheritance2. Disinheritance of a daughter3. Impairment of the legitime4. Declaring a certain woman to be the true wife of the testator5. Partitioning of conjugal properties6. Right of a widow to the inheritance7. Titles to property, & annulment of alleged fraudulent sales.

Pedro Ermac, et. al v. Cenon Medelo, etc.The settlement proceeding must go on, & not be delayed. The

probate court is not the best forum for the resolution of adverse claimsof ownership of any property ostensibly belonging to the decedent'sestate. While there are settled exceptions to this rule, it is not properto delay the summary settlement of deceased person's estate justbecause an heir or a third person claims that certain properties do notbelong to the estate but to him. Adverse claims of ownership must beventilated in an independent action. For the protection of the claimant,the appropriate steps is to have the proper annotation of lis pendens.

O. Proof of filiation may be given if it's essential to establish which ofthe 2 wills has been revoked. Moreover, it can be given to prove primafacte whether or not an oppositor or intervenor claims to be related tothe testator, can be allowed to intervene in the probate proceedingsfor the purpose of protecting his rights. However, the final decision onthe matter of relationship can be threshed out either in another case,or even in the later stages of the settlement proceedings, the stagewhen the declaration of heirship is made, & only after the probateorder has been made.

Uriarte v. Uriarte, et alThere are two alternatives for an acknowledged natural child to

prove his status & interest in the estate of the deceased parent:

a) to intervene in the probate (or intestate) proceeding if it is stillopenb) to ask for its reopening if it has already been closed (if forinstance extrinsic fraud, as in the omission of heirs, has beenmade in the judicial partition even if said partition had beenapproved by the Court)

P. Prescription does not apply in probate proceedings. The Statute ofLimitations fixes time limits for the filing of civil actions but not forspecial proceedings of which a probate is admittedly one.

Q. The rule of estoppel does not apply to probate proceedings for theyare invested with public interest, & if estoppel would be applied, theascertainment of the truth may be blocked.

[Memorize] ART. 839. The will shall be disallowed in any of thefollowing cases:

(1) If the formalities of the law has not been complied with;(2) If the testator was insane or mentally incapable of making a

will, at the time of the execution;(3) If it was executed through force or undue duress, or the

influence of fear, or threats;(4) If it was procured by undue and improper pressure and

influence, on the part of the beneficiary or of some other person;(5) If the signature of the testator was procured by fraud;(6) If the testator acted by mistake or did not intend that the

instrument he signed should be his will at the time of affixing hissignature thereto.

A. The Ground of Force, Duress, Fear or Threat• connotes the idea of coercion, mental or physical• while their presence in a contract renders it voidable (andtherefore susceptible to ratification), their presence in a willrenders the will void.

B. The Ground of Undue or Improper Pressure & Influence• undue influence connotes the idea of coercion by virtue ofwhich the judgement of the testator is displaced, & he is inducedto do that which he would not have done. It is present when hedoes something because of fear or a desire for peace or from anyother feeling which he is unable to resist.• he who alleges undue influence must prove the same.(Macapinlac v. Alimurong)• there is no undue influence just because a testator has madehis mistress►{incapable of succeeding}, or his illegitimate childby her, the heir to the entire free partition. Mere affection, even ifillegitimate, is not undue influence, as long as the giving wasvoluntary. (Coso v. Fernandez Deza)[Note: though such a will may be admitted to probate because ofthe absence of undue influence, still under the law, a mistress isincapacitated to inherit.]• the fact that some heirs are more favored than others is proofof neither fraud or undue influence. Diversity of appointment isthe usual reason for making a testament; otherwise, thedecedent right might as well die intestate. (Icasiano v. Icasiano)• according to Justice Villareal's dissenting opinion in Cuyugan v.Baron, the will can be allowed, as the effect of the undueinfluence has been destroyed. However, in several Americancases, it has been held that ratification cannot cure the defect.

C. The Ground of Fraud

• fraud is the use of insidious machinations to convince a personto do what ordinarily he would not have done. For fraud to vitiatea will, there must be intent to defraud. This intent, & the natureof the fraud, must be proved.• fraud & undue influence are mutually repugnant & excludeeach other; their joining as grounds for opposing probate showsthe absence of definite evidence against the validity of the will.(Icasiano v. Icasiano)

D. A man signed a document not believing it to be a will. This mistakeis a ground for allowance.

E. Revocation is a voluntary act of the testator, while disallowance isgiven by judicial order. R is with or without cause; D must always be fora legal cause.