Wills and Succession  Property is within the commerce of man
Pre-Bar Review Notes if it can be lawfully made subject to jus
By: Atty. Leilanie C. Yangyang-Espejo
WHAT IS THE MEANING OF SUCCESSION?
Article 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.
(n)
IS SUCCESSION AN ORIGINAL MODE OR A
DERIVATIVE MODE OF ACQUISITION?
It is a derivative mode of acquisition based on
Article 712 of the New Civil Code.
Article 712. Ownership is acquired by
occupation and by intellectual creation.
Ownership and other real rights over property
are acquired and transmitted by law, by
donation, by testate and intestate succession,
and in consequence of certain contracts, by
tradition.
They may also be acquired by means of
prescription. (609a)
WHAT ARE THE SUBJECTS OF SUCCESSION?
(Transmissible property, rights and obligations)
A. PROPERTY - may refer to real or
personal, tangible or intangible property
(See Articles 414-416, Civil Code for
definitions.) However, it is subject to the
universal requirement that the object of
any act or contract must be LICIT.
Property is considered licit if it is:
1. Not outside the commerce of
men;
2. Not contrary to law, morals,
good customs, public order or
public policy
3. Transmissible;
4. Not impossible.
disponendi or the right to dispose. It
must not be res nullius or res communes.
It must not be an object that is
prohibited by law.
CAN THE HUMAN BODY/ORGAN BE DISPOSED
OF IN THE WILL?
Human Corpse is not a property, and it cannot
be disposed by virtue of will. But human organs
can be donated or be disposed of in a will as
governed by R.A. 7170 Organ Donation Act of
1991.
 Under R.A. 7170, however, the recipients
and the purposes for the legacy are
limited. Sec. 6 provides;
Section 6. Persons Who May Become Legatees
or Donees – The following persons may
become legatees or donees of human bodies
or parts thereof for any of the purposes stated
hereunder.
(a) Any hospital, physician or surgeon - For
medical or dental education, research,
advancement of medical or dental
science, therapy or transplantation.
(b) Any accredited medical or dental
school, college or university – For
education, research, advancement of
medical or dental science or therapy;
(c) Any organ bank storage facility – For
medical or dental education, research,
therapy or transplantation; and
(d) Any specified individual – For therapy or
transplantation needed by him
 Under R.A. 7170, prior probate of the will
is not required for the legacy of the
organ to be given effect. If the will is not
probated or if declared invalid, the
legacy, to the extent that it was
executed in good faith, is nevertheless
valid and effective.
WHAT IS THE CONCEPT OF “AFTER ACQUIRED
PROPERTIES” IN SUCCESSION?
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 - Under Article 718 after the death of the
decedent, the heir acquires the
inherited property including all
accessories and accessions accruing
thereto from the moment of death.
These accessions or income for the
properties accruing after death actually
belong to the heir not as an heir but as
an owner as incidents of ownership.
- On the otherhand, with respect to
properties acquired by the testator after
the execution of the will up to the
moment before death, Article 793
provides as a general rule that only
those properties owned and possessed
at the time the will is made are
included. Properties acquired after the
making of the will shall not be included
in the legacy or devise. Exceptions:
When the testator expressly provides in
his will that properties acquired after the
will is made shall be included in the
inheritance. Other exception are Art.
836 and 930 of the New Civil Code.
Article 836. The execution of a codicil referring
to a previous will has the effect of republishing
the will as modified by the codicil. (n)
Article 930. The legacy or devise of a thing
belonging to another person is void, if the
testator erroneously believed that the thing
pertained to him. But if the thing bequeathed,
though not belonging to the testator when he
made the will, afterwards becomes his, by
whatever title, the disposition shall take effect.
(862a)
B. RIGHTS - refer to transmissible rights.
Purely personal rights generally cannot
be transmitted because they are
extinguished by death. As a general
rule, patrimonial rights are transmissible.
Great Pacific Life Assurance Corp v. CA [G.R.
No. 113899, October 13, 1999]
FACTS: A contract of group life insurance was
executed between Grepalife and
DBP. Grepalife agreed to insure the lives of
eligible housing loan mortgagors of DBP. Dr.
Wilfredo Leuterio filed a case against Grepalife
for recovery of insurance proceeds.
HELD: A policy of insurance upon life or health
may pass by transfer, will or succession to any
person, whether he has an insurable interest or
not and such person may recover it whatever
the insured might have recovered, the widow
of the decedent Dr. Leuterio may file the suit
against the insurer, Grepalife.
 However, by way of exception, there
are also patrimonial rights that are
extinguished by death such as:
1. When provided in the contract that the
right is extinguished by death;
2. Usufruct as a general rule because it is
extinguished by death Under Article 603
of NCC;
3. Agency because the contract is
extinguished by death under Article
1919 NCC;
4. Right to become a partner in
partnership (Article 1830)
5. Right to annuity (Article 2027)
No annuity shall be claimed without first
proving the existence of the person upon
whose life the annuity is constituted. (1808)
6. Right to revoke donation by reason of
ingratitude;
7. Commodatum is purely personal in
character. Consequently, the death of
either the bailor or the bailee
extinguishes the contract (Article 1939);
and
8. A deposit is extinguished, in case of a
gratuitous deposit, upon hte death of
either the depositor or the depositary
(Article 1995).
C. OBLIGATIONS – As a general rule,
obligations are transmissible.
Liu vs. Loy [G.R. No. 145982, September 13,
2004]
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A prior contract to sell made by the decedent
during his lifetime prevails over a subsequent
contract of sale made by the administrator
without probate court approval. It is immaterial
if the prior contract is a mere contract to sell
and does not immediately convey ownership.
Frank Liu‟s contract to sell became valid and
effective upon its execution and bound the
estate to convey the property upon full
payment of the consideration.
Alvarez vs. IAC [G.R. No. 68053, May 7,1990]
Teodora Yanes and the children of her brother
Rufino, namely, Estellita, Iluminado and Jesus,
filed a complaint against Fortunato Santiago,
Arsenia Vda. De Fuentebella, Alvarez and the
Register of Deeds of Negros Occidental for the
return of the ownership and possession of Lots
773 and 823. They also prayed that an
accounting of the produce of the land and
that the share or money equivalent due the
plaintiffs be delivered to them and that
defendants be ordered to pay plaintiffs P
500.00 as damages in the form of attorney‟s
fees. During the pendency in court of said
case or on November 13, 1961. Alvarez sold
Lots 773-A, 773-B to Dr. Rodolfo Siason. Alvarez
died but he was adjudged to pay the
monetary value of the properties to Teodora
Yanes and the children of her brother Rufino,
namely, Estelita, Iluminado and Jesus. The heirs
of Alvarez complained that the liability arising
for the sale of Lots No. 773-A and 773-B made
by Rosendo Alvarez to Dr. Rodolfo Siason
should be the sole liability of the late Rosendo
Alvarez or of his estate, after his death.
HELD: The doctrine obtaining in this jurisdiction
is non the general transmissibility of the rights
and obligations of the deceased to his
legitimate children and heirs. The binding
effect of contracts upon the heirs of the
deceased party is not altered by the provision
of our Rules of Court that money debts of a
deceased must be liquidated and paid from
his estate before the residue is distributed
among said heirs (Rule 89). The reason is that
whatever payment is thus made from the state
is ultimate a payment by the heirs or
distributees, since the amount of the paid
claim in fact diminishes or reduces the shares
that the heirs would have been entitled to
receive. Under our law, therefore, the general
rule is that a party‟s contractual rights and
obligations are transmissible to the successors.
The rule is a consequence of the progressive
„depersonalization‟ of patrimonial rights and
duties that, has characterized the history of
these institutions. From the Roman concept of
a relation from person to person, the obligation
has evolved into a relation from patrimony to
patrimony with the persons occupying only a
representative position, barring those rare
cases where the obligation is strictly personal.
Petitioners being the heirs of the late Rosendo
Alvarez, they cannot escape the legal
consequences of their father‟s transaction,
which gave rise to the present claim for
damages. That petitioners did not inherit the
property involved herein is of no moment
because by legal fiction, the monetary
equivalent thereof devolved into the mass of
their father‟s hereditary estate and we have
ruled that the hereditary assets are always
liable in their totality for the payment of the
debts of the estate. It must, however, be made
clear that petitioners are liable only to the
extent of the value of their inheritance.
 Exceptions to the general rule that
obligations are transmissible are:
1. Purely personal obligations (e.g. marital
obligations);
2. Obligations made intransmissible by
contract between the parties;
3. The obligation to pay taxes. Note that
tax liability is properly a claim against
the estate;
4. Criminal liability;
5. When a piece of work has been
entrusted to a person by reason of his
personal qualifications, the contract is
rescinded upon his death. In this case,
the proprietor shall pay the heirs of the
contractor in proportion to the price
agreed upon, the value of the part of
the work done, and of the materials
prepared, provided the latter yield him
some benefit (Article 1726)
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 6. Support.
WHAT TRIGGERS THE LAW ON SUCCESSION?
 Death opens succession. There can be
no transmission of properties, rights and
obligations by way of succession
without death.
 Prior to death, the heirs only have an
inchoate right or an expectancy.
Felipe vs. Heirs of Aldon [February 16, 1983]
Gimena, the wife, sold lands belonging to the
conjugal partnership without the consent of
the husband. The voidable contract of
Gimena was subject to annulment by her
husband only during the marriage because he
was the victim who had an interest in the
contract. Gimena, who was the party
responsible for the defect, could not ask for its
annulment. Their children could not likewise
seek the annulment of the contract while the
marriage subsisted because they merely had
an inchoate right to the lands sold.
The termination of the marriage and the
dissolution of the conjugal partnership by the
death of Maximo Aldon did not improve the
situation of Gimena. What she could not do
during the marriage, she could not do
thereafter.
The case of Sofia and Salvador Aldon is
different. After the death of Maximo they
acquired the right to question the defective
contract insolfar as it deprived them of hteir
hereditary rights in their father‟s share in the
lands. The father‟s share is one half of the lands
and their share is two-thirds thereof, one-third
pertaining to the widow.
The petitioners have been in possession of the
lands since 1951. It was only in 1976 when the
respondents filed action to recover the lands.
In the meantime, Maximo Aldon died.
Two questions come to mind namely: (1) Have
the petitioners acquired the lands by
acquisitive prescription? (2) Is the right of
action of Sofia and Salvador Aldon barred by
the statute of limitations?
As to the second question, the children‟s
cause of action accrued from the death of
their father in 1959 and they had thirty years to
instate it (Art. 1141 Civil Code.) they filed
action in 1976 which is well within the period.
 Upon the death of the decedent, the
rights of the heirs become vested.
Emnace v. CA [370 SCRA 431), November 23,
2001]
Emnace, Tabanao and Divinigracia were
partners in a business concern known as Ma.
Nelma Fishing Industry. Sometime in January of
1986, they decided to dissolve their partnership
and executed an agreement of partition and
distribution of the partnership properties
among them, consequent to Divinagracia‟s
withdrawal from the partnership. Throughout
the existence of the partnership, and even
after Tabanao‟s demise, Emnace petitioner
failed to submit to Tabanao‟s heirs any
statement of assets and liabilities of the
partnership, and to render an accounting of
the partnership‟s finances, and also reneged
on his promise to turn over to Tabanao‟s heirs
the deceased‟ share in the total assets of the
partnership. Thus, the heirs of Tabanao sued
Emnace. Emnace contended that the
surviving spouse of Vicente Tabanao has no
legal capacity to sue since she was never
appointed as administratrix or executrix of his
estate.
Held: The surviving spouse does not need to be
appointed as executrix or administratrix of the
estate before she can file the action. She and
her children are complainants in their own right
as successors of Vicente Tabanao. From the
very moment of Vicente Tabanao‟s death, his
rights insofar as the partnership was concerned
were transmitted to his heirs, for rights to the
succession are transmitted from the moment of
death of the decedent. Whatever claims and
rights Vicente Tabanao had against the
partnership and petitioner were transmitted to
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respondents by operation of law, more
particularly by succession, which 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.
WHAT IS A PERSON CONSIDERED DEAD FOR THE
PURPOSE OF SUCCESSION?
Death may either be:
1. Actual Death
2. Presumed Death
a. Ordinary presumption – after
10 years or 5 years if the
person disappeared after the
age of 75 years old (Article
390, NCC)
b. Qualified or extraordinary
presumption – after 4 years if
the disappearance was
under danger of death
(Article 391, NCC)
 When is the moment of death counted?
(a) Ordinary presumption – after 5 or 10
years
(b) Extraordinary presumption from the date
of disappearance.
 However, the rule on presumptions
should yield to the rule on
preponderance of evidence. If there is
evidence pointing to the fact that the
person is alive, then he cannot be
presumed dead despite the fact that
he has not been heard of. Or if there is
evidence that the person is really dead,
then there is no need to wait for the
periods under Articles 390 and 391 to
lapse before a person may be declared
dead.
Eastern v. Lucero [124 SCRA 326]
Lucero, Jr. was appointed by Eastern Shipping
Lines, Inc., as master/captain to its vessel. While
the vessel was enroute from Hongkong to
Manila where it was expected to arrive on
February 18, 1980, Capt. Lucero sent 3
messages to the Company‟s Manila Office,
first, that they encountered boisterous weather
with strong northeasternly winds causing the
vessel to roll and pitch violently; second, that
the vessel was laboring violently and that they
had to jettison cargoes; third, that they
needed immediate assistance because
seawater was entering inside the hatch and
they were preparing to abandon anytime.
Subsequently, the insurer of the M/V Eastern
Minicon confirmed the loss of the vessel. The
Company paid the corresponding death
benefits to the heirs of the crew members,
except Mrs. Lucero, who refused to accept the
same. Mrs. Lucero filed a complaint for
payment of her accrued monthly allotment of
P3,183.00, which the Company had stopped
since March 1980 and for continued payment
of said allotments until the M/V Minicon shall
have returned to the port of Manila. She
contended that the contract of employment
entered into by her husband with the
Company was on a voyage-to-voyage basis,
and that the same was to terminate only upon
vessel‟s arrival in Manila.
HELD: It is undisputed that the Company
received 3 radio messages from Capt. Lucero.
There is thus enough evidence to show the
circumstances attending the loss and
disappearance of the M/V Eastern Minicon
and its crew. The foregoing facts are sufficient
to lead to a moral certainty that the vessel had
sunk and that the persons aboard had
perished with it. Upon the premise, the rule on
presumption of death under Article 391 (1) of
the Civil Code must yield to the rule of
preponderance. Where there are facts, known
or knowable, from which a nrational
conclusion can be made. The presumption
does not step in, and the rule of
preponderance of evidence controls. Thus, the
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complaint of Mrs. Lucero was dismissed and
instead, she should receive the death benefits.
IS THERE A KIND OF SUCCESSION THAT TAKES
EFFECT DURING THE LIFETIME OF THE DECEDENT?
Freak succession – this is a case of succession
which takes place without the triggering effect
of death. This contemplates the delivery of
presumptive legitime prior to the death of the
person who is supposed to pay such, on the
occasion of annulment of marriage and
declaration of nullity of marriage.
DISTINGUISH SUCCESSION INTER VIVOS FROM
SUCCESSION MORTIS CAUSA.
1) Succession Inter Vivos – transfer of
ownership takes effect during the
lifetime of the giver; governed by the
law on donations
2) Succession Mortis Causa – transfer of
ownership takes effect upon or adter
the death of the giver; governed by the
law on succession
WHAT RULE SHALL APPLY IF A DONATION IS TO
TAKE EFFECT UPON THE DEATH OF THE DONOR?
ARTICLR 728. Donations which are to take
effect upon the death of the donor partake of
nature of testamentary provisions and shall be
governed by the rules established in the Title
on Succession.
Illustrative Cases:
Ganuela vs Cawed (401 SCRA 447, April
24, 2003)
“ That for and in consideration of the love and
affection which the DONOR has for the
DONEE, and of the faithful services the latter
has rendered in the past to the former, the said
DONOR does by these presents transfer and
convey, by way of DONATION, unto the
DONEE the property above, described, to
become effective upon the death of the
ODNOR, but in the event that the DONEE
should die before the DONOR, the present
donation shall be deemed rescinded and of
no further force or effect.”
HELD: The above disposition is in the nature of
donation mortis causa. The distinction between
a transfer inter vivos and mortis causa is
important as the validity of revocation of the
donation depends upon its nature. If the
donation is inter vivos, it must be executed and
accepted with the formalities prescribed by
Article 748 and 749 of the Civil Code, except
when it is onerous in which case the rules on
contracts that will applu. If it is mortis causa,
the donation must be in the form of a will with
all the formalities for the validity of the wills,
otherwise it is void and cannot transfer
ownership. The distinguishing characteristics of
a donation mortis causa are the following:
1) It conveys no title or ownership to the
transferee before the death of the
transferor; or, what amounts to the
same thing, that the transferor should
retain ownership (full or naked) and
control of the property while alive.
2) That before his death, the transfer
should be revocable by the transferor at
will, ad nutum; but revocability may be
provided for indirectly by means of a
reserved power in the donor, to dispose
of the properties conveyed.
3) That the transfer should be void if the
transferor should survive transferee.
The phrase “to become effective upon the
death of the DONOR” admits of no other
interpretation but that Celestina intended to
transfer the ownership of the properties to
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Ursulina on her death, not during her lifetime.
More importantly, the provision in the deed
stating that if the donee should die before the
donor, the donation shall be deemed
rescinded and of no further force and effect
shows that the donation is a postmortem
disposition. Furthermore, the deed contains an
attestation clause expressly confirming the
donation as mortis causa.
To classify the donation as inter vivos simply
because it is founded on considerations of love
and affection is erroneous. That the donation
was prompted by the affection of donor for
the donee and the services rendered by the
latter is of no particular significance in
determining whether the deed constitutes a
transfer inter vivos or not because a legacy
may have an identical motivation. In other
words, love and affection may also underline
transfers mortis causa.
CUEVAS vs. CUEVAS (G. R NO. L-8327,
December 14, 1955)
The crux of the controversy resolves around the
following provisions of the deed of donation:
“Dapat malaman ni Crispulo Cuevas na
samantalang akop ay nabubuhay, and lupa
na ipinagkaloob ko sa kaniya ay ako pa rin
and patuloy na mamomosecion,
makapagpatrabaho, makikinabang at ang
iba apang karapatan sa pagmamay-ari ay sa
akin pa rin hanggang hindi binabawian ng
buhay ng Maykapal at ito naman ay hindi ko
nga iya-alis pagkat kung ako ay mamatay na
ay ilalaan ko sa kaniya.
HELD: The decisive proof that the present
donation is operative inter vivos lies in the final
phrase to the effect that the donor will not
dispose or take away (“hindi ko nga iya-alis” in
the original) the land “ because I am reserving
it to him upon my death.” By these words the
donor expressly renounced the right to freely
dispose of the property in favor of another ( a
right essential to full ownership) and
manifested the irrevocability of the
conveyance of the naked title to the property
in favor of the donee. Such irrevocability is
disposition post mortem. It is apparent from the
entire context of the deed of donation that the
donor intended that she should retain the
entire beneficial ownership her lifetime, but
that the naked title should irrevocably pass to
the donee. It is only thus that all expressions
heretofore discussed can be given full effect;
and when the donor stated that she would
continue to retain the “possession, cultivation,
harvesting, and all other rights attributes of
ownership,” she meant only the dominion utile,
not the full ownership. The words “rights and
attributes of ownership” should be construed
ejusdem generis with the preceding rights of
“possession, cultivation and harvesting”
expressly enumerated in the deed. Had the
donor meant to retain full or absolute
ownership she had no need to specify
possession, cultivation and harvesting since all
these rights are embodied in full or absolute
ownership; nor would she then have excluded
the right of free disposition from the “rights and
attributes of ownership” that she reserved for
herself.
WHAT ARE HEIRS, LEGATEES AND DEVISEES?
 Heirs may be compulsory or forced (like
children, wife, who cannot be deprived
of their inheritance unless for causes
provided by law. They are entitled to
legitime.
 Even if there is no will, they will still inherit
by operation of law, in which case, they
are called legal or intestate heirs.
 Voluntary testamentary or testate (like
friends, strangers, who are not related to
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 the decedent. Can inherit). Or those property, rights
who receive property by way of devise and
or legacy (even if relative). obligations;
 Legatees succeed to particular or
6. Heir succeeds
specific personal property; Devisees to the 6. Suceedonly to
succeed to particular or specific real remainder of the
property. the estate after determinate
all the debts, thing or
DISTINCTIONS devises, and amount given.
legacies have
HEIRS LEGATEES AND been paid.
DEVISEES
1. Succeed by
general right 1. Succed by
universal title special or WHAT IS THE IMPORTANCE OF THE DISTINCTIONS
particular title BETWEEN HEIRS ON ONE HAND AND LEGATEES
(to all or a AND DEVISEES ON THE OTHERHAND?
fraction or
aliquot part) 1. In the preterition under Article 854
2. The term instituted voluntary heir gets nothing;
2. The term legatees and legatees and devisees still get the
testamentary devisees exist
property given as long as the legitime is
Heir exists both only in
testamentary not impaired.
in testamentary
succession and succession; 2. Under Article 793 on after-acquired
intestate properties, legatees and devisees as a
succession; general rule get only the property
devised or bequeathed existing at the
3. The heir, if 3. Legatees and
time of the execution of the will. Heirs
compulsory, dedvisees
succeed only are not covered by Article 793 because
succeeds to
the inheritance by reason of their inheritance is residual.
regardless of testator‟s will.
the will of the WHAT ARE THE ESSENTIAL ELEMENTS AND
decedent; CHARACTERISTICS OF A WILL?

4. Quantity 4. Quantity can ACRONYM (PASS U C F FRIDM) “Pass you see

cannot be easily be freedom”
determined determined
until after 1. Personal-will making is the act of the
liquidation of testator, and testamentary power
properties of
5. Do not cannot be delegated. A will is supposed
the estate;
represent the to be confidential, hence, wills are not
5. Heir represents juridical considered as public documents even if
the juridical personality coz notarized.
personality of acquires only 2. Animus Testandi- there must be intent to
the deceased properties;
make a will and the testator should
acquiring his

8
 know that the purpose of the will is to
dispose of his propertis mortis causa.
Persons with unsoud mind cannot
execute wills because they do not know
the character of the testamentary act.
3. Statutory-will-making is merely a Hence, if husband and wife have a joint
privilege, not an inherent right. The law
can without testamentary power.
Hence, will must be, subordinated to
law land policy (Herreros vs Gil 88 Phil
260)
4. Solemn- the formalities required by law
must be complied with
5. Unilateral-the testator cannot condition
the making of the will upon the consent
or act of another. Hence bilateral
disposicion captatoria, are prohibited.
6. Capacity-the testator must have the
testamentary capacity of (sound mind
and at least 18 years old)
7. Freedom from Vitiated Consent – the
presence of vitiated consent is a cause
for the disallowance of a will
8. Revocable – testator can revoke his will
anytime during his lifetime, even if
already probated. A will is essentially
ambulatory.
9. Individual – a will must be the act of only
one person. Hence, joint wills are not
allowed.
10. Disposition of Property – a will must
contain a disposition of property. It may
be direct disposition or indirect
disposition, like a will containing only a
disinheritance of an heir. (Merza vs
Porras[93 Phl 142]); Reiterated in
SEANGIO versus REYES, Gr No. 149753
MITUG vs CA (183 SCRA 755)
The Survivorship Agreement executed
between husband and wife over their joint
savings account stipulates that when either
of them dies, the balance of the savings
account shall belong to the one who
survives.
Held: The will must purport to deliver ones
separate properties in favor of another.
savings account and they merely agree in
an instrument that when either of them
dies, the balance of the savings account
shall belong to the one who survives, this is
not a will because the account is their joint
holding.
WHAT ARE THE RULES FOR CONSTRUCTION
IN SUCCESSION?
 TESTACY IS FAVORED OVER
INTESTACY
RODRIGUEZ v BORJA (17 SCRA 41)
On March 4, 1963, a purported last will and
testament of Fr. Rodriguez was delivered to the
Clerk of Court of Bulacan by Apolonia
Pangilinan and Adelaida Jacalan; that on
March 8, 1963, Maria Rodriguez and Angela
Rodriguez filed a petition for leave of court to
allow them to examine the alleged will; that on
March 11, 1963 before the Court could act on
the petition, the same was withdrawn that on
March 12, 1963, Maria Rodriguez and Angela
Rodriguez filed before the Court of First
Instance of Rizal a petition for the settlement of
the intestate estate of Fr. Rodriguez alleging,
among other things, that Fr. Rodriguez died
without leaving a will; and that on March 12,
1963 Apolonia Pangilinan and Adelaida
Jacalan filed a petition for the probation of the
will delivered by them on March 4, 1963.
The movants contend that since the intestate
proceedings in the Court of First Instance of
Rizal was filed at 8:00AM on March 12, 1963
9
while the petition for probate was filed in the
Court of First Instance of Bulacan at 11:00AM
on the same date, the latter Court has no
jurisdiction to entertain the petition for probate.
Held: The jurisdiction of the Court of First
Instance of Bulacan became vested upon the
delivery thereto of the will of the late Fr.
Rodriguez on March 4, 1963, even if no petition
for its allowance was filed until later because
upon the will being deposited the court could,
motu proprio, have taken steps to fix the time
and place by proving the will and issued the
corresponding notes conformably to what is
prescribed by Section 3, Rule 76 of the Revised
Rules of Court.
The use of the disjunctive in the words “when a
will is delivered to or a petition for the
allowance of a will is filed” plainly indicates
that the court may act upon the mere deposit
therein of a decedent‟s testament, even if no
petition‟s for its allowance is as yet filed. Where
the petition for probate is made after the
deposit of the will, the petition is deemed to
relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez
was submitted and delivered to the Court of
Bulacan on March 4, while petitioners initiated
intestate proceedings in the Court of First
Instance of Rizal only on March 12, eight days
later, the precedence and exclusive
jurisdiction of the Bulacan court is contestable.
The other person is that, in our system of civil
law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only
takes place in the absence of a valid
operative will. Therefore, as ruled in Castro, et.
al versus Martinez 10 Phl. 307, “only after final
decision as to the nullity of testate succession
could an intestate succession be instituted in
the form of pre-establishment action”. The
institution of intestacy proceedings in Rizal may
not thus proceed while the probate of the will
of Father Rodriguez is pending.
THE WILL MUST BE LIBERALLY CONSTRUED IN
FAVOR OF ITS VALIDITY. HENCE, BETWEEN 2
DISPOSITIONS, ONE WILL MAKE THE WILL
INVALID WHILE THE OTHER WILL MAKE THE WILL
VALID. THAT INTERPRETATION BY WHICH THE
WILL IS VALID SHOULD BE PREFERRED.
BALANAY, JR vs MARTINEZ (64 SCRA 452, Gr No.
L-39247, June 27, 1975)
Felix J. Balanay, Jr. filed in the lower court a
petition dated February 27, 1973 for the
probate of his mother‟s notarial will dated
February 27, 1973 for the probate of his
mother‟s notarial will dated September 5, 1970
which is written in English. In that will
Leodegaria Julian declared (a) that she was
the owner of the “southern half of nine
conjugal lots (part II); (b) that she was the
absolute owner of two parcels of land which
she inherited from her father (par. III); (c) that it
was her desire that her properties should not
be divided among her heirs during her
husband‟s lifetime and that their legitimes
should be satisfied out of the fruits of her
properties (par V). Then in Paragraph V of the
will she stated that after her husband‟s death
(he was eighty-two years old in 1973) her
paraphernal lands and conjugal lands (which
she described as “my properties”) should be
divided and distributed in the manner set forth
in that part of the will. She devised and
partitioned the conjugal lands as if they were
all owned by her. She disposed of in the will her
husband‟s one half share of the conjugal
assets. Felix Balanay, Sr opposed the probate
of the will on the grounds of lack of
testamentary capacity, undue influence,
pretention of the husband and alleged
improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr.
10
should collate certain properties which he had
received from the testratix.
Held: The probate court erred in declaring that
the will was void and in converting the testate
proceeding into an intestate proceeding
notwithstanding the fact that in its order of
June 18, 1973, it gave effect to the surviving
husband‟s conformity to the will and to his
renunciation of his hereditary rights which
presumably included his one-half share of the
conjugal estate. The rule is that “the invalidity
of one several dispositions contained in a will
does not result in the invalidity of the other
dispositions, unless it is to be presumed that the
testator would not have made such other
dispositions if the first invalid disposition had not
been made” (Art. 792, Civil Code). “Where
some of the provisions of a will are valid and
others invalid, the valid parts will be upheld if
they can be separated from the invalid
without defeating the intention of the testator
or interfering with the general testamentary
scheme, or doing injustice to the
beneficiaries”. (95 CJS 873) The statement of
the testatrix that she owned the “southern half
of the conjugal lands is contrary to law
because, although she was a co-owner
thereof, her share was inchoate and
proindiviso. But that illegal declaration does
not nullify the entire will. It may be disregarded.
The provision of the will that the properties of
the testatrix should not be divided among her
heirs during her husband‟s lifetime but should
be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the
Civil Code. The testatrix in her will made a
partition of the entire conjugal estate among
her six children (her husband had renounced
his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to
one or more children as envisaged in Article
1080. Hence, she had no right to require that
the legitimes be paid in cash. On the other
hand, her estate may remain undivided only
for a period of twenty years. So, the provision
that the estate should not be divided during
her husband‟s lifetime would at most be
effective only for twenty years from the date of
her death unless there are compelling reasons
for terminating the co-ownership.
In the instant case, there is no doubt that the
testatrix and her husband intended to partition
the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal
estate (Article 170 Civil Code) but since the
husband, after the dissolution of the conjugal
partnership had assented to her testamentary
partition of the conjugal estate, such partition
has become valid, assuming that the will may
be probated. In the instant case, the preterited
heir was the surviving spouse. His prerition did
not produce intestacy. Moreover, he signified
his conformity to his wife‟s will and renounced
his hereditary rights. Save in an extreme case
where the will on its face is intrinsically void, it is
the probate‟s court duty to pass first upon the
formal validity of the will. Generally, the
probate of the will is mandatory. To give effect
to the intention and wishes of the testatrix is the
first and principal law in the matter of
testaments. Testacy is preferable to intestacy.
An interpretation that will render a
testamentary disposition operative takes
precedence over a construction that will nullify
a provision of the will.
Testacy is favored. Doubts are resolved in favor
of testacy especially where the will evinces an
intention on the part of the testator to dispose
of practically his whole estate. So compelling is
the principle that instestacy should be avoided
and that the wishes of the testator should
prevail that sometimes the language of the will
11
can be varied for the purpose of giving it
effect.
THE TESTATOR WISHES CONSTITUTE THE FIRST
AND PRINCIPAL LAW IN THE MATTER OF
TESTAMENTS
VDA. DE VILLANUEVA vs JUICO (4 SCRA 550)
In the will of the testator he bequeathed in
favor of his wife ½ certain properties for her
“use and possession while alive and she does
not contract a second marriage otherwise, the
properties shall pass to the testator‟s
grandniece.” It was contended that the title to
the properties became absolutely vested in
the estate of the window upon her death, on
account of the fact that she never remarried.
Held: The grandniece is entitled to the
properties for the plain intent of the testator
was to invest his widow only with a lifetime
usufruct subject to the condition that if she
remarried, her rights would thereupon cease
even during her lifetime. It would have been
different, had he given her full ownership
because not having remarried, the grand
niece could not inherit from her. This is in
contrast with the remainder of the estate in
which she was instituted universal heir together
with the testator‟s brother. If the testator had
intended to impose as sole condition the non-
remarriage of his widow, the words „use and
possession while alive‟ would have been
unnecessary, since she could only remarry
during her own lifetime.
THE WORDS OF A WILL ARE TO RECEIVE AN
INTERPRETATION WHICH WILL GIVE TO EVERY
EXPRESSION SOME EFFECT, RATHER THAN ONE
WHICH WILL RENDER ANY OF THE EXPRESSIONS
INOPERATIVE; AND OF TWO MODES OF
INTERPRETING A WILL, THAT IS TO BE PREFERRED
WHICH WILL PREVENT INTESTACY.
YAMBAD vs GONZALES (1 SCRA 1157)
Appellant filed an action against the appellees
that the latter employ the former as tenant
during his lifetime on parcels of land
bequeathed to the appellees. The lower court
ruled that the provisions of the will relied upon
by the appellant merely amount to a
suggestion to appellees, who, through morally
bound, are not legally compelled to follow
said suggestion because the word
pahintulutan employed with the reference to
the working of appellant on the lands only
means to permit or to allow but not to direct
appellees to appoint appellant as tenant.
Held: lower court is wrong. The real import of
the wish of the testatrix for her will contains a
clear directive to employ appellant as may be
seen from the words preceding the word
pahintulutan which say: Dapat din naman
malaman ng dalawa kong tagapagmana ...
na sila ay may dapat tungkulin o gampanan
gaya ng sumusunod. “The words tungkulin o
gampanan mean to do or to carry out as a
mandate or directive and having reference to
the word pahintulutan, can convey no other
meaning than to impose a duty upon the
appellees.
HOW ARE AMBIGUITIES IN THE WILL TREATED?
 Two (2) kinds of ambiguities
1. Latent or Intrinsic ambiguity – an
ambiguity or defect tht does not
appear in the face of the will.
You only discover them when you
go beyond the will, when you
look for the persons or properties.
This consists of:
a. Imperfect description of
the heir, legatees, or
devisee
12
 b. Imperfect description of
the property given
c. When 2 or more persons
meet the description
d. When 2 or more things
meet the description
2. Patent or Extrinsic Ambiguity – an
ambiguity that is apparent on the
face of the will itself. You discover
this my merely looking at the will.
Example: 1 hereby bequeath all
my money to some of my
students. Hence, from the will
itself, it is not clear how many
students are intended.
 How to cure the ambiguities:
The same for both:
a) By intrinsic evidence. That is by
looking at the context of the will,
examining how the words are
used.
b) By extrinsic evidence. That is
going outside the will.
CAN ORAL OR PAROL EVIDENCE BE RESORTED
TO IN ORDER TO CURE AN AMBIGUITY?
Yes, except oral evidence or parol
evidence pertaining to the supposed oral
declarations of the testator. This would not be
allowed because this may open the door to
fraud. Anybody may claim that he/she heard
the testator said something. But other oral
evidence may be allowed as an exception to
the Parol Evidence Rule under Rule 130,
Section 9 of the Rules of Court.
WHAT LAWS GOVERN THE VALIDITY OF WILLS?
 Two kinds of validity:
A. Formal or extrinsic validity –
refers to the forms and
solemnities that must be
complied with in order to
make the will valid. Forms
such as the type of instrument
(depending whether notarial
or holographic), capacity of
the testator, qualifications of
witnesses. Extrinsic validity
may be seen from 2
viewpoints: time and place
(country)
B. Intrinsic validity – refers to the
legality of the provisions in an
instrument; contract or will.
E.g Whether or not there was
preterition, whether or not
there is invalid disinheritance
whether or not there is
impairment of legitime. May
be seen also from 2
viewpoints.
 Extrinsic validity from the view point of
Time Extrinsic validity of will depends
upon the observance of the law in force
at the time the will is made. The extrinsic
validity of will is measured against the
law in force at the time of will making,
not at time of death, not at time of
probate.
 Reason: The testator cannot possibly
know, and is not expected to know the
laws that will govern in the future.
Hence, it is sufficient that he follows the
laws in force at the time that he makes
his will.
Enriquez v. Abadia [95 Phil. 627]
On September 6, 1923, Father Sancho Abadia,
parish priest of Talisay, Cebu, executed a
document purporting to be his Last Will and
Testament. He died on January 14, 1943. The
will was a holographic will; that it was in the
handwriting of the testator and that although
at the time it was executed and at the time of
the testator‟s death, holographic wills were not
13
permitted by law still, because at the time of
the hearing and when the case was to be
decided the new Civil Code was already in
force, which Code permitted the execution of
holographic wills, under a liberal view, and to
carry out the intention of the testator which
according to the trial court is the controlling
factor and may override any defect in form,
said trial court by order dated January 24,
1952, admitted to probate the Last Will and
Testament of Father Sancho Abadia.
HELD: The formal validity of a will depends
upon the observance of the law in force at the
time it is made, not by the law in force at the
time of the testator‟s death, or at the time the
supposed will is presented in court for probate,
or when the petition is decided by the court.
Consequently, the validity of a will is not
affected by the subsequent amendment of
the law with respect to formalities after the
execution of the will, whether before or after
the death of the testator. Where a will was void
for failure to observe certain formalities under
the law then in force, a subsequent law
lessening or dispensing with said formalities
cannot be applied so as to validate the void
will. Thus, the fact that the New Civil Code
allows a holographic will does not validate one
made before its effectivity and void under the
prevailing law.
Testate Estate of the Late Alipio Abada v. Baja
[G.R. No. 147145, January 31, 2005]
Abada executed his notarial will on June 4,
1932 but he died when the New Civil Code
took effect. The will was not acknowledged
before a notary public. Is the will valid?
HELD: YES. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code and
Act No. 190 or the Code of Civil Procedure
which governed the execution of wills before
the enactment of the New Civil Code. The
Code of Civil Procedure repealed Article 685
of the Old Civil Code. Under the Code of Civil
Procedure, the intervention of a notary is not
necessary in the execution of any will.
Therefore, Abada‟s will does not require
acknowledgement before a notary public.
 Extrinsic Validity from the Viewpoint of
Place (Country)
A. Testator is a Filipino who executes will in the
Philippines. Observe Philippine Laws (NCC) –
Art. 17
B. Testator is a Filipino who executes will
abroad before the diplomatic or consular
officials of the Republic of the Philippines in a
foreign country: Observe Philippine Laws
(NCC) – Art. 17
C. Testator is a Filipino who executes will
abroad. Observe:
1. Law of the place where he may be –
Article 815
2. Law of the place where he executes
the will – Article 17 (essentially same with 815,
because law of place where he executes the
will is the law of the place where he may be)
3. Law of the Philippines (because Art.
815 merely says “is authorized” meaning, he
principally has to follow Philippine Law but is
(permitted or authorized to follow the law of
the place where he may be)
D. Testator is an alien who executes will
abroad: (observe:
1. Law of the place of his residence or
domicile – Article 816
2. Law of his own country or nationality –
Article 816
3. Philippine Law (NCC) – Article 816
4. Law of the Place where will is
executed – Article 17
Example: Tan American Citizen who has his
residence in Japan and who executes a will in
Germany.
14
E. Testator is an alien who executes a will in the
Philippines. Observe:
1. Law of his country or nationality -
Article 817
2. Law of the place where will is
executed (Philippines) – Article 17
Example: X a Japanese who executes will in
the Philippines may observe Japanese law or
Philippine law.
 Intrinsic Validity from the Viewpoint of
Time
The law at the time of the death of the
testator or when the succession opens
because it is at that time when the rights
are transmitted to the heirs, devisees or
legatees. Clear in the transitory provision
of the Civil Code in Article 2263 and
Under Art. 774.
 Intrinsic Validity from the Viewpoint of
Place or Country
Law applicable is the national law of
the decedent under Article 16 of the
New Civil Code.
Bellis v. Bellis (June 8, 1967)
In the present case, it is not disputed that the
decedent was both a national of Texas and a
domicile thereof at the time of his death. So
that even assuming Texas has a conflict of law
rule providing that the domiciliary system (law
of the domicile) should govern, the same
would not result in a reference back (Renvoi)
to Philippine law, but would still refer to Texas
Law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae) calling
for the application of the law of the place
where the properties are situated, renvoi would
arise, since the properties here involved are
found in the Philippines. In the absence,
however of proof as to the conflict of law rule
of Texas, it should not be presumed different
from ours. Appellant‟s position is therefore not
rested on the doctrine of renvoi. As stated,
they never invoked nor even mentioned it in
their arguments. Rather they argue that their
case falls under the circumstances mentioned
in the third paragraph of Article 17 in relation
to Article 16 of the Civil Code.
Where the decedent was a citizen of a foreign
country and under the laws of said country
there are no forced heirs, the system of
legitimes in Philippine law cannot be applied
to the succession to the decedent‟s estate
because the intrinsic validity of the provisions of
the decedent‟s will and the amount of
successional rights are to be determined by
the law of such country. A provision in the
foreigner‟s will that his properties should be
distributed in accordance with Philippine law
and not in accordance with his national law is
void being contrary to Article 16.
It is therefore evident that whatever public
policy or good customs may be involved in our
System of legitimes, Congress has not intended
to extend the same to the succession of
foreign nationals. For it has specifically chose
to leave, inter alia, the amount of successional
rights to the decedent‟s national law. Specific
provisions must prevail over general ones.
PCIB v. Escolin [56 SCRA 266]
The question of what is the foreign law
governing the matter in issue is one of fact and
not of law. Foreign laws may not be taken
judicial notice of and has to be proven like any
other fact in dispute between the parties in
any proceeding except when the said laws
are already within the actual knowledge of the
courts such as when they are well and
generally known, or they have been actually
ruled upon in other cases before it and none of
the parties concerned do not claim otherwise.
Miciano v. Brimo [50 Phil. 867, G.R. No. L-22595,
November 1, 1927]
With respect to foreign law on the formalities of
wills, in the absence of proof to the contrary, it
is presumed that foreign laws on the formalities
of wills are the same as those prescribed under
15
Philippine Laws. This is the Doctrine of
Processual Presumption.
The appellant‟s opposition is based on the fact
that the partition in question puts into effect
the provisions of Joseph G. Brimo‟s will which
are not in accordance with the laws of his
Turkish nationality, for which reason they are
void as being in violation or article 10 of the
Civil Code which, among other things,
provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of
the successional rights and the intrinsic
validity of their provisions, shall be
regulated by the national law of the
person whose succession is in question,
whatever may be the nature of the
property or the country in which it may
be situated.
But the fact is that the oppositor did not prove
that said testamentary dispositions are not in
accordance with the Turkish Laws, inasmuch as
he did not present any evidence showing what
the Turkish laws are on the matter, and in the
absence of evidence on such laws, they are
presumed to be the same as those of the
Philippines.
Alonzo Q. Ancheta v. Candelaria Guersey-
Dalaygon [G.R. No. 139868, June 8, 2006]
Sps. Audrey and Richard were American
Citizens who have resided in the Philippines for
30 years. They have an adopted daughter,
Kyle. On July 29, 1979, Audrey died, leaving a
will. In it, she bequeathed her entire estate to
Richard, who was also designated as executor.
The will was admitted to probate before the
Orphan‟s Court of Baltimore, Maryland, U.S.A,
which named James N. Phillips as executor
due to Richard‟s renunciation of his
appointment. The court also named Atty.
Alonzo Q. Ancheta of the Quasha Asperilla
Ancheta Pena & Nolasco Law Offices as
ancillary administrator.
In 1981, Richard married Candelaria with
whom he has two children. On October 12,
1982, Audrey‟s will was also admitted to
probate by the then Court of First Instance of
Rizal. On July 20, 1984, Richard died, leaving a
will, wherein he bequeathed his entire estate
to Candelaria, save for his rights and interests
over the A/G interiors, Inc. Shares, which he left
to Kyle. The will was also admitted to probate
by the Orphan‟s Court of Ann Arundel,
Maryland U.S.A and James N. Phillips was
likewise appointed as executor, who in turn,
designated Atty. William Quasha or any
member of the Quasha Asperilla Ancheta
Pena & Nolasco Law Offices, as ancillary
administrator. Richard‟s will was then submitted
for probate before the RTC of Makati. Atty.
Quasha was appointed as anciliary
administrator. Atty Ancheta filed a project of
partition of Audrey‟s estate, with Richard being
apportioned the ¾ undivided interest in the
Makati property, 48.333 shares in A/G Interiors,
Inc., and P9, 313.48 from the Citibank current
account; and Kyle, the ¼ undivided interest in
the Makati property, 16, 111 shares in A/G
Interiors, Inc., and P3, 104.49 in cash. The
project of partition was granted and approved
by the trial court. Meanwhile, the ancillary
administrator in the second petition also filed a
project of partition wherein 2/5 of Richard‟s ¾
undivided interest in the Makati property was
allocated to respondent while 3/5 thereof
were allocated to Richard‟s three children. This
was opposed by Candelaria on the ground
that under the law of the State of Maryland “a
legacy passes to the legatee the entire interest
of the testator in the property subject of the
legacy.” Since Richard left his entire to
Candelaria, except for his rights and interests
over the A/G Interiors, Inc, shares, then his
entire ¾ undivided interest in the Makati
property should be given to Candelaria.
Atty. Ancheta contends that he acted in good
faith in performing his duties as an ancillary
administrator. He maintains that at the time of
the filing of the project of partition, he was not
aware of the relevant laws of the State of
Maryland, such that the partition was made in
accordance with Philippine Laws. Atty.
16
Ancheta also imputes knowledge on the part
of Candelaria with regard to the terms of
Aubrey‟s will, stating that as early as 1984, he
already apprised Candelaria of the contents
of the will and how the estate will be divided.
Candelaria argues that Atty. Ancheta‟s
breach of his fiduciary duty as ancillary
administrator of Aubrey‟s estate amounted to
extrinsic fraud. According to Candelaria, Atty.
Ancheta was duty-bound to follow the express
terms of Aubrey‟s will, and his denial of
knowledge of the laws of Maryland cannot
stand because Atty. Ancheta is a senior
partner in a prestigious law firm and it was his
duty to know the relevant laws.
HELD; Atty. Ancheta‟s failure to proficiently
manage the distribution of Audrey‟s estate
according to the terms of her will and as
dictated by the applicable law amounted to
extrinsic fraud. Hence the CA Decision
annulling the RTC Orders dated February 12,
1988 and April 7, 1988, must be upheld. It is
undisputed that Audrey Guersey was an
American citizen domiciled in Maryland, U.S.A.
During the reprobate of her will in Special
Proceeding No. 9625, it was shown, among
others that at the time of Audrey‟s death, she
was residing in the Philippines but is domiciled
in Maryland, U.S.A; her Last Will and Testament
dated August 18, 1972 was executed and
probated before the Orphan‟s Court in
Baltimore, Maryland, U.S.A, which was duly
authenticated and certified by the Register of
Wills of Baltimore City and attested by the
Chief Judge of said court; the will was
admitted by the Orphan‟s Court of Baltimore
City on September 7, 1979; and the will was
authenticated by the Secretary of State of
Maryland and the Vice Consul of the Philippine
Embassy. Being a foreign national, the intrinsic
validity of Audrey‟s will, especially with regard
as to who are her heirs is governed by her
national law, i.e., the law of the State of
Maryland, as provided in Article 16 of the Civil
Code. While foreign laws do not prove
themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them;
however, Atty. Ancheta, as ancillary
administrator of Audrey‟s estate, was duty-
bound to introduce in evidence the pertinent
law of the State of Maryland. Atty. Ancheta
admitted that he failed to introduce in
evidence the law of the State of Maryland on
Estates and Trusts, and merely relied on the
presumption that such law is the same as the
Philippine law on wills and succession. Thus, the
trial court peremptorily applied Philippine Laws
and totally disregarded the terms of Audrey‟s
will. The obvious result was that there was no
fair submission of the case before the trial court
or a judicious appreciation of hte evidence
presented.
Atty. Ancheta insists that his application of
Philippine laws was made in good faith. The
Court cannot accept his protestation. How
can Atty. Ancheta honestly presume that
Philippine laws apply when as early as the
reprobate of Audrey‟s will before the trial court
in 1982, it was already brought to fore that
Audrey was a U.S. Citizen, domiciled in the
State of Maryland. Atty. Ancheta is a senior
partner in a prestigious law firm, with a “big
legal staff and a large library” He had all the
legal resources to determine the applicable
law. It was incumbent upon him to exercise his
functions as ancillary administrator with
reasonable diligence, and to discharge the
trust reposed on him faithfully. Unfortunately,
he failed to perform his fiduciary duties.
Testate Estate of Suntay v. Suntay [July 31,
1964]
With respect to foreign law governing
procedure in probate matters in case of
reprobate in the Philippines, there is no
presumption that such laws are the same as
that prescribed under Philippine Law. The will
should be denied probate in the absence of
such proof.
Testate Estate of Christensen v. Garcia [January
31, 1963]
If the conflicts rules under the national law of
the deceased refer the matter to the law of
the domicile and the foreigner was domiciled
in the Philippines at the moment of death,
17
Philippine courts will have to apply the
Philippine internal law on succession. This is the
Doctrine of Renvoi, which is the referring back
to the forum of the problem.
WHAT ARE THE INSTANCES WHEN PHILIPPINE
LAWS MAY STILL APPLY INSOFAR AS THE
INTRINSIC VALIDITY OF THE WILL OF A FOREIGN
NATIONAL IS CONCERNED?
1. Application of the Doctrine of Renvoi
2. Application of the Doctrine of
Processual Presumption
WHO CAN EXECUTE WILLS?
1. Persons of either sex at least eighteen
years of age;
2. Persons of sound mind at the time of the
execution of the will.
Hence:
1. One suffering under civil interdiction is
allowed to make a will because civil
interdiction only prohibits disposition of
property inter vivos.
2. Spendthrifts or prodigals under
guardianship are not disqualified
provided at least 18 years and of sound
mind.
- Soundness of mind must exist at the time
of execution of will, not required to be
of sound mind before or after execution
of will – Dorotheo v. CA [320 SCRA 12,
1999] Under the Civil Code, due
execution includes a determination of
whether the testator was of sound and
disposing mind at the time of its
execution, that he had freely executed
the will and was not acting under
duress, fraud, menace or undue
influence and that the will is genuine
and not a forgery, that he was of the
proper testamentary age and that he is
a person not expressly prohibited by law
from making a will.
WHAT ARE THE REQUISITES OF A SOUND MIND?
A. Testator must know the nature of hte
estate to be disposed of - must have a
sufficient recollection of his properties
and comprehend their kind, character
and quality in general.
B. Testator must know the proper objects
of his bounty – must be aware of those
persons who would naturally be
supposed to have claim upon him.
C. Testator must know the character of the
testamentary act – must understand
that he is executing an instrument which
will dispose of his property upon his
death and which he may revoke
anytime.
CITE INSTANCES WHEN THE TESTATOR WAS NOT
CONSIDERED OF UNSOUND MIND?
- Senility, Senile Dementia, only complete
senile dementia will result ot
testamentary incapacity; Torres v. Lopez
de Bueno (48 Phil. 772)
- Senile debility, deafness, poor memor:
Sancho v. Abella, (58 Phil 728)
- Weakness of mind or partial imbecility
from disease of body or from age:
Alsua-Betts v. CA (July 30, 1979)
- Blindness: Avelino v. Dela Cruz (21 Phil
521)
- Failure of memory: Bagtas v. Paguio,
Jocson v. Jocson (46 Phil 701), Cuyugan
v. Baron
- Epilepsy: Existence will notaffect. Only
when seizure occurs while engaged in
testamentary act.
- Insomnia: Caguioa v. Calderon (20 Phil.
400)
- Tuberculosis: Yap Tua v. Yap CA Kuan(27
Phil. 579)
- Diabetes: Samson v. Corrales Tan
Quintin (44 Phil 573)
- Cholera: Galvez v. Galvez (26 Phil. 243)
- Paralysis and loss of speech: Bagtas v.
Paguio
- Celebral Hemorrhage with hemiplagia:
Carillio v. Jaojoco (46 Phil 957)
- Old Age: Hernaez v. Hernaez (1 Phil 683)
- Delirium: Ordinarily not. Only when
beclouds the mind so as not to
18
 understand the nature of act, extent of
property, objects of bounty
- Ill health: even if hand is guided in
signing will, lying down and unable to
move or stand up unassisted – Neyra v.
Neyra (76 Phil 333)
- Eccentricities
- ViolentTemperament
- Passions and prejudices: only when
borders on delusion
- Drunkeness or drug addiction: only
when excessive
- Religious belief: Unless assumes chronic
condition of delusion
- Asthma: Bugnao v. Uba (14 Phil. 163)
CITE INSTANCES WHEN THE TESTATOR WAS
CONSIDERED OF UNSOUND MIND?
- Lack of memory and understanding
and pre-senile dementia; Albornoz v.
Albornoz (71 Phil 414)
- State of unconsciousness
- Excitement or stress: if cannot recall
intelligently extent of his property, etc.
- Partial insanity; insane delusions:
hallucination; belief in things which do
not exist
- Religious delusion
- Drunkeness or drug addiction
- Idiocy – congenital intellectual
deficiency
- Comatose stage
- Stage of delirium
WHAT ARE THE PRESUMPTIONS AS TO
SOUNDNESS OF MIND?
A. General Presumption: testator is of sound
mind. Burden of proving otherwise rests upon
those who oppose the probate of will. To
discharge burden: clear and convincing
evidence is required.
B. When testator is presumed of unsound mind:
1. Publicly known to be insane one month or
less before making of will.
2. Judicially declared insane before making a
will. In Torres v. Lopez (48 Phil. 772),the
Supreme Court ruled that the fact that the
testator was judicially placed under
guardianship does not ipso facto mean that
the testator was of unsound mind.
3. Insanity of a general or permanent nature
shown to have existed at one time is presumed
to have continued.
- Burden of proving otherwise rests upon
the proponent of the will
WHAT WILLS ARE RECOGNIZED IN THE
PHILIPPINES?
A. Ordinary or Notarial Will – requires among
other things, an attestation clause, an
acknowledgement before a notary public.
B. Holograph or holographic will – written
entirely, dated and signed, in the handwriting
of the testator. No attestation clause or
acknowledgement required.
WHAT ARE THE FORMALITIES OF NOTARIAL
WILLS?
1. Must be in writing;
2. Must be in language or dialect known to the
testator;
3. 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;
4. Attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
5. Must be signed on the left margin by the
testator or the person requested by him to
write his name, and by the instrumental
witnesses on each and every page thereof,
except the last;
6. All the pages shall be numbered
correlatively in letters placed on the upper part
of each page;
7. There must be an attestation clause;
19
8. The will must be acknowledged before a
notary public.
- Noncupative wills – wills orally made by
the testator in contemplation of death
and before competent witnesses; NOT
RECOGNIZED.
LANGUAGE
- Testator need not be proficient in the
language used. It is sufficient that he
can make known his testamentary act
through the language used.
- Presumption: knew the language in
which the will is written unless the
contrary is proven.
- Hence:
1. No statutory requirement that the will
should allege that the language used
therein is understood by the testator
(Lopez v. Liboro, 81 Phil. 429)
2. No need to state in the attestation
clause that the will is written in the
language known to the testator.
3. That the will is in the language known
to the testator can be proved by
EXTRINSIC EVIDENCE or even by oral
evidence.
4. If executed in the language of the
locality where the testator lives there is a
presumption that testator knows it.
Abangan v. Abangan (40 Phil 476)
The circumstance appearing in the will
itself that same was executed in the City
of Cebu and in the dialect of this
locality where the testatrix was a
neighbour is enough, in the absence of
any proof to the contrary, to presume
that she knew this dialect in which her
will is written.
Reyes v. Vidal (91 Phil. 127)
The failure of the petitioner‟s witnesses
to testify that the testatrix knew and
spoke Spanish does not in itself alone
suffice to conclude that this important
requirement of the law has not been
complied with when there is though
evidence of record which supplies this
technical omission. The fact that the
testatrix was a mestiza Espanola, was
married to a Spaniard, made several
trips to Spain and some of her letters
submitted as evidence by the oppositor
were written in Spanish by the testatrix in
her own writing give rise to the
presumption that the testatrix knew the
language in which the testament has
been written, which presumption should
stand unless the contrary is proven.
Testate Estate of the Late Alipio Abada
v. Abaja (G.R. No. 147145, January 31,
2005)
Abada died sometime in May 1940. His
widown Paula Toray “Toray” died
sometime in September 1943. Both died
without legitimate children. On
September 13, 1968, Alipio filed a
petition for the probate of the last will
and testament of Abada. Abada
allegedly named as his testamentary
heirs his natural children Eulogio and
Rosario Cordova. Alipio is the son of
Eulogio. Caponong, as well as the
nephews, nieces and grandchildren of
Abada and Toray opposed the petition.
Issues:
1. Whether Caponong-Noble is
precluded form raising the issue of
whether the will of Abada is written ina
languge known to Abada;
2. Whether evidence aliunde may be
resorted to in the probate of the will of
Abada.
Held: Caponong-Noble points out that
nowhere in the will can one discern hat
20
Abadda knew the Spanish language.
She alleges that such defect is fatal
and must result in the disallowance of
the will. On this issue, the CA held that
the matter was not raised in the motion
to dismiss and that it is now too late to
raise the issue on appeal. We agree
with Caponong-Noble that the doctrine
of estoppel does not apply in probate
proceedings. Nevertheless, Caponong-
Noble‟s contention must still fail. There is
no statutory requirement to state in the
will itself that the testator knew the
language or dialect used in the will. This
is a matter that the testator knew the
language or dialect used in the will. This
is a matter that a party may establish by
proof aliunde. Caponong-Noble further
argues that Alipio, in is testimony, has
failed, among others, to show that
Abada kenw or understood the
contents of the will and the Spanish
language used in the will. However,
Alipio testified that Abada used to
gather Spanish-speaking people in their
place. In these gatherings, Abada and
his companions would talk in the
Spanish language. This sufficiently
proves that Abada speaks the Spanish
language.
Nor can the presumption in favor of a
will established by this court in Abangan
v. Abangan (40 Phil 476), to the effect
that the testator is presumed to know
the dialect of the locality where he
resides, unless there is proof to the
contrary, even be invoked in support of
the probate of will, because in the
instant case not only is it notproven that
English is the language of the City of
Baguio where the deceased Piraso lived
and where the will was drawn, but that
the record contains positive proof that
said Piraso knew no other language
than the Igorrote dialect, with a
smattering of Ilocano; that is he did not
know the Englishlanguage in which the
will is written. So that even if such a
presumption could have been raised in
this case, it would have been wholly
contradicted and destroyed.
Suroza v. Honrado (110 S 32)
Testator must know or at least
understand the language. This lack of
knowledge cannot be cured by
interpretation or explanation of the
contents to the testator.

Testate Estate of Javellana

v.Javellana(106 Phil 1973)
Where there is want of expression in the
body of the will itself or in the attestation
clause that the testator knew the
language in which the will was written,
proof thereof may be established by
evidence aliunde. Although lack of such
evidence may be cured
presumption of knowledge of the
language or dialect used in the will, no
such presumption can arise where, as in
the case at bar, the will was executed in
Spanish, while the testtor was a Visayan
residing in San Juan, Rizal at the time of
his death.
Acop v. Piraso, 52 Pil. 660
With respect to attesting witnesses, they need
not know the language used in the body of
the will, only in the attestation clause. If do not
know the language in the attestation clause,
may be cured by explanation or interpretation.
Testator need not also know the language in
the attestation clause.
by
Is the Date Important in Wills?
1. Not an essential requirement for a notarial
will. Will not vitiate the will. Necessary to know
only when there are more than 1 will to
determine which is the last will.Date may be
established by exrinsci evidence.
2. Required in holographic wills.

21
What is meant by Subscription?
Subscribed means signed.
Who will sign?
a. The testator himself
b. Some other person provided it is under the
express direction and in the presence of the
testator.
Some other person: Anybody may sign for the
testator, even one of the subscribing witnesses
(Barut v. Cagacungan, 21 Phil 461), as long as
there are more than 3 as implied in the case of
(In Re Will of Tan Duico, 45Phil. 807) when it
said: “that the testator or the person acting in
his stead as well as the 3 witnesses sign on the
left margin on each page or sheet.
Note: In the case of Barut there were4
witnesses.
In the presence: it is not necessary that testator
actually sees the signing as long as he can do
so if he wants to without any physical
obstruction. Or if the testator is blind, it is
enough that he could have felt it.
Under the express direction: Must be expressly
authorized. The testator shall, by word of
mouth or action (Nodding of head,) clearly
indicate to the proxy a desire to have his name
signed to the instrument. The testator‟s mere
knowledge or consent that his name was
being signed for him, or his acquiescence in
such an act, or a mere implied assent to the
signing by another person is not sufficient to
meet the requirement of express direction.
Approval must precede, not succeed the act
of signing.
What is Being Signed or Affixed?
Customary Signature of the testator or any
mark actually intended as a signature, even if
not the customary signature.
Leano v. Leano (30 Phil 6120
The evidence of record satisfactorily discloses
that Cristina Valdes, deceased, placed her
cross against her name attached by some
other person to the instrument offered for
probate which purports to be her last will and
testament, in the presence of the three
witnesses whose names are attached to the
attesting clause, and that they attested and
subscribed the instrument in her presence and
in the presence of each other.
-but cross was not sufficient in
Garcia v. Lacuesta (90 Phil 489)
Because the cross was not the customary
signature of the testator, there should have
been a statement in the attestation clause
that the will was signed by some other person
in behalf of the testator. The absence of this
statement invalidated the will.
How about Electronic/Digital Signature, under
the Electronic Commerce Act
-Not allowed because an e-signature is
supposed to be attached to or logically
associated with the e-data message or e-
document or any methodology or procedures
employed or adopted by a person and
executed or adopted by such a person with
the intention of authenticating or approving
an e-message (information) or e-document. E-
signatures are affixed pursuant to transactions
and contracts. E-signature is not a handwritten
signature that is scanned or graphically
imprinted on the e-document.
Where should the signature be Located?
-At the logical end of the will, not necessarily
the physical end. Immediately after the last
dispositive provision, before the attestation
clause.
Purpose to prevent insertion of unauthorized
provisions.
Additional clauses or provisions after the
signature in a NOTARIAL WILL invalidate the
entire will itself.
22
Who are the Credible Witnesses in the Will?
Credible witnesses have all the qualifications
imposed by law. Must be able or competent to
testifiy. They are the attesting or subscribing
witnesses.
Gonzales v. CA ,90 SCRA 183
“Credible witnesses” mean competent
witnesses and not those who testify to facts
from or upon hearsay. In the strict sense, the
competency of a person to be an instrument
witness to a will is determined by the statue,
that is Art. 820 and 821, Civil Code, whereas hie
credibility depends on the appreciation of his
testimony and arises from the belief and
conclusion of the court that said witness is
telling the truth. It is not necessary to introduce
prior and independent proof of the fact that
the witnesses are “credible witnesses”, that is
that they have good standing in the
community and reputed to be trustworthy and
reliable.
c. Subscribing and attesting witnesses are
called instrumental witnesses because they
take part in the execution of an instrument or
writing.
d. Attesting witnesses must be the same
marginal witnesses, otherwise, will is void.
e. Purpose of marginal signature is for
identification of the pages used and thus
prevent fraud. Purpose is served signed on the
right, top, left, bottom margins: Nayve vs.
Mojal, (47 Phil 152)
WHAT ARE THE QUALIFICATIONS OF WITNESSES
TO WILLS?
• Qualifications of witnesses:
1. of sound mind
2. age of 18 or more
3. not blind, deaf or dumb
4. able to read and write
5. domiciled in the Philippines
6. has not been convicted, (by final
judgment) of falsification of document, perjury,
or false testimony
• Unlike in Election Law. In the Civil Code,
there is difference between Domicile and
Residence. Residence is a material fact,
referring to the physical presence of a person
in a place. Acquired by living in a place. A
person can have 2 or more residences.
Domicile can exist without actually living in the
place as long as once residence has been
established in one place, there be an intention
to stay there permanently, even if residence is
also established in some other place.
• Effect of Pardon: (for those convicted of
falsification of document, perjury or false
testimony.
- if by reason of innocence, can already be a
witness because no untrustworthiness or
dishonesty
- if act of executive grace or clemency,
disqualification subsists because does not
change the fact of dishonesty
• Notary public also disqualified to be a
witness because he cannot acknowledge the
will before himself (Cruz vs. Villasor [54 SRCA
31])
• Witnesses must be competent at the
time of attesting. Reason: there is nothing left
to be done by the witnesses in order to comply
with the requirements of the law regarding
attestation.
• If there are only 3 attesting witnesses: if
the attesting witness is a recipient of a legacy
or device in the will he is attesting, or the
spouse, parent, or child of such attesting
witness is the recipient, the legacy to the
attesting witness, his spouse, parent child or
anyone claiming under the attesting witness,
his spouse, parent, or child is void. But the
qualification of the other person to attest the
will is not affected and the rest of the will
remain valid.
• If there more than 3 witnesses, the
legacy or devise is valid. Reason: the invalidity
of legacy or devise stems from his being an
attesting witness. If more than 3 witnesses, it is
already a surplusage.
• Compulsory heir who is also an attesting
witness, can still get the legitime. Disqualified
only with respect to the free portion given in
excess of their legitime.
23
WHAT ARE MARGINAL SIGNATURES?
– the signatures of the testator and the
witnesses on each and every page of the will
at the left margin.
f. If no marginal signature on the 1st page:
– If will has only one page, no marginal
signatures are needed because logically, the
page will already contain signatures of the
testator and witnesses: Abangan vs. Abangan,
(40 Phil 476)
– But if there is more than 1 page, 1st
page, as well as all the other pages, must be
signed: Estate of Tampoy vs. Alberastine, (Feb
25, 1960).
– What is important is that each and
every page bears the signatures of the testator
and the witnesses (Nayve vs. Mojal, 47 Phil 152)
– Absence of marginal signature, if no
signature appears on a page, is a FATAL
DEFECT. Will is extrinsically invalid hence,
cannot be admitted to probate.
– But see the case of:
ICASIANO vs. ICASIANO (11 SCRA 720)
The original of the will consisted of 5 pages but
while signed at the end of each and every
page, it did not contain the signature of one of
the attesting witnesses on page 3 thereof, due
to the simultaneous lifting of two pages in the
course of the signing although the duplicate
copy was signed by the testatrix and the
attesting witnesses in each and every page.
HELD: The law should not be so strictly and
literally interpreted as to penalize the testatrix
on account of the inadvertence of a single
witness over whose conduct she had no
control, where the purpose of the law is to
guarantee the identity of the testament and its
component pages is sufficiently attained, no
intentional or deliberate deviation existed, and
the evidence on record attests to the full
observance of the statutory requisites.
HOW SHOULD THE PAGES OF THE WILL BE
NUMBERED?
• Numbered correlatively in letter (one,
two, three, etc) but use Arabic numerals
(Unson vs. Abella, 43 Phil 494), or letters ABC
(Aldaba vs. Roque, 43 Phil 378), or numbers 123
(Nayve vs. Mojal), will not validate the will.
• Law says on the upper part but in case
of Fernandez vs. de Dios, 46 Phil 922, paging
may be placed at the top, bottom, or even at
the left or right margin, or even in the text itself.
• Document has 4 pages, 1st 3 pages
contain dispositions, 4th page contains
attestation clause. If only the 1st 3 contain the
pages but attestation clause says, this will
consist of 3 pages excluding this attestation
clause, it is evident that the page containing
the attestation clause is the 4th page.
(Fernandez vs. Vergel de Dios)
• If sole page is unnumbered. Will is valid
because the reason for requirement no longer
applies. Loss or removal of the sheet cannot be
hidden – Abangan vs. Abangan(40 Phil 476)
WHAT IS THE PURPOSE OF NUMBERING?
• Purpose of numbering:
1. to guard against fraud
2. to forestall any attempt to suppress or
substitute any of the pages
3. to prevent any increase or decrease of
pages
4. to afford means of detecting the loss of
any of its pages
WHAT IS THE MEANING OF “TO ATTEST?”
The act of witnessing the testator and the
witnesses sign the will.
DISTINGUISH ATTESTATION FROM SUBSCRIPTION?
Attestation Subscri
1. Consists in witnessing the testator's 1. The
execution of the will in order to see and take the sa
note mentally that those things are done identific
which the statute requires for the execution was ex
of a will and that the signature of the testator
exists as a fact. It is the act of witnesses not
that of the testator although it necessarily
involves the act of the testator in executing
the will and requesting the witnesses to act as
such.
2. Mec
2.Mental act, act of the senses
3. Purp
3. Purpose is to render available proof of the that th
authenticity of the will and its due execution. by the
witness
24

execution
attestation
4. To attest a will is to know that it was 4.To subscribe
published as such and to certify the facts only tothe
required to constitute an actual and legal of the witnesses, for the sole purpose ofbe remembered,
publication.
identification.
WHAT IS THE MEANING OF “IN THE PRESENCE?”
• In the presence, with respect to the
witnesses does not necessarily require actual
seeing but possibility of seeing or sensing
without any physical obstruction.
• Generally Accepted Tests of Presence
(Jaboneta vs. Gustillo, 55 Phil 541)
2. test of vision
3. test of position
4. test of mental apprehension
5. test of available senses
JABONETA vs. GUSTILLO (5 Phil 541)
Testator has his back turned. Signing was done
in his presence since he could have cast his
eyes in the proper direction.
NERA vs. RIMANDO (18 Phil 450)
There was a curtain separating the testator
and some witnesses from other witnesses. Not
in the presence so will not valid.
MARAVILLA vs. MARAVILLA (37 SCRA 672)
It was but natural that witness Mansueto should
be positive about his own signature, since he
was familiar with it. He had to be less positive
about Digna Maravilla's (testator) signature
since he could not be closely acquainted with
the same for aught the record shoes, the
signing of the will was the only occasion he
saw her sign: he had no opportunity to study
her signature before or after execution of the
will. Furthermore, he witnessed Digna's signing
not less than 14 years previously. To demand
that in identifying Digna's signature Mansueto
should display a positiveness equal to the
certainty shown by him in recognizing his own,
exceeds the bounds of the reasonable. That
Manseuto, Hernaez and Buenaflor, together
with the testatrix and the lawyer, sat next to
one another around one table when the will
was ofsigned
is as
the will clearly established
embodied in the by the
uncontradicted
testimony of both Atty.
has been performed.
Villanueva and Herminio Maravilla; and that
detail proves
beyond
a paper doubtasthat
published each
a will is one of
parties
write concerned
on the same paperdid sign
the in the presence
names
of all the others. It should
in
this connection, that the test is not whether the
witness did see the signing of the will but
whether he was in position to see if he chose to
do so. If testator is blind, enough that signing or
action is within the range of the other senses
like hearing, touch, etc. as long as testator
realizes what is being done. TEST OF AVAILABLE
SENSES.
- Does not matter that witnesses signed ahead
of or after the testator as long as signing is
sufficiently contemporaneous and made on
one occasion (same time and place) and as
part of one single transaction. (Gabriel vs.
Mateo, 51 Phil 216.)
Purpose of requiring presence to avoid
fraudulent substitution of the will and to make it
more difficult the invention of false testimony
by the witnesses since they may be the
witnesses of one another.
What is an attestation clause?
That clause of an ordinary or notarial will
wherein the witnesses certify that the
instrument has been executed before them
and the manner of the execution of the same.
It is a separate memorandum or record of the
facts surrounding the conduct of execution
and once signed by the witnesses, it gives
affirmation to the fact that compliance with
the essential formalities required by law has
been observed.
Nature: Attestation clause is a declaration
made by the witnesses, not by the testator
Tenafrancia v. Abaja, 87 Phil 139 hence, only
signatures of witnesses are required in the
attestation clause. Witnesses must know the
recitals of the clause but need not need to
know the content of the will itself.
25
Strictly speaking, not part of the will because
does not contain dispositions.
a. Purpose: To preserve in permanent form a
record of the facts attending the execution of
the will, so that in case of death, absence or
failure of the memory of the subscribing
witnesses, or other casualty, the due execution
may still be proved Leynez v. Leynez, 68 Phil
745
b. Subscribing witnesses attest to:
1. The genuineness of the signature of the
testator
2. The due execution of the will as embodied in
the attestation clause (capacity of the testator
absence of undue influence etc)
Distinguish Marginal Signature from Attesting
Signature
Azuela v. CA, G.R. No.122880, April 12, 2006
The three named witnesses to the will affixed
their signatures on the left hand margin of both
the pages of the will, but not at the bottom of
the attestation clause. Is the will valid?
Held: No! While the signatures of the
instrumental witnesses appear on the left hand
margin of the will, they do not appear at the
bottom of the attestation clause which after all
consists of their averments before the notary
public. Cagro v. Cagro is material on this
point. As in this case, “the signatures of the
three witnesses to the will do not appear at the
bottom of the attestation clause, although the
page containing the same is signed by the
witnesses on the left-hand margin.” While three
Justices considered the signature requirement
had been substantially complied with, a
majority of six, speaking through Chief Justice
Paras, ruled that the attestation clause had not
been duly signed, rendering the will fatally
defective.
There is no question that the signatures
of the three witnesses to the will do not
appear at the bottom of the attestation
clause, although the page containing
the same is signed by the witnesses on
the left-hand margin.
We are of the opinion that the position
taken by the appellant is correct. The
attestation clause is a memorandum of
the facts attending the execution of the
will required by law to be made by the
attesting witnesses, and it must
necessarily bear their signatures. An
unsigned attestation clause cannot be
considered as an act of the witnesses,
since the omission of their signatures at
the bottom thereof negatives their
participation.
The petitioner and appellee contends
that signatures of the three witnesses on
the left-hand margin conform
substantially to the law and may be
deemed as their signatures to the
attestation clause. This is untenable,
because said signatures, are in
compliance with the legal mandate
that the will be signed on the left-hand
margin of all its pages. If an attestation
clause not signed by the three witnesses
at the bottom thereof, be admitted as
sufficient, it would be easy. To add such
clause to a will on a subsequent
occasion and in the absence of the
testator and any or all of the witnesses.
The Court today reiterates the
continued efficacy of Cagro. Article 805
particularly segregates the requirement that
the instrumental witnesses sign each page of
the will from the requisite that the will be
“attested and subscribed by the instrumental
witnesses. The respective intents behind these
two classes of signature are distinct from each
other. The signatures on the left-hand corner of
every page signify, among others, that the
witnesses are aware that the page they are
signing forms part of the will. On the other
hand, the signatures to the attestation clause
establish that the witnesses are referring to the
statements contained in the attestation clause
itself. Indeed, the attestation clause is separate
26
and apart from the disposition of the will. An
unsigned attestation clause results in an
unattested will. Even if the instrumental
witnesses signed the left-hand margin of the
page containing the unsigned attestation
clause, such signatures cannot demonstrate
these witnesses undertakings in the clause,
since the signatures that do appear on the
page were directed towards a wholly different
avowal.
The Court may be more charitably
disposed had the witnesses in this case signed
the attestation clause itself, but not the left-
hand margin of the page containing such
clause. Without diminishing the value of the
instrumental witnesses‟ signatures on each and
every page, the fact must be noted that it is
the attestation clause which contains the
utterances reduced into writing of the
testamentary witnesses themselves. It is the
witnesses, and not the testator, who are
required under Article 805 to state the number
of pages used upon which the will is written;
the fact that the testator had signed the will
and every page thereof; and that they
witnessed and signed the will and all the pages
thereof in the presence of the testator and of
one another. The only proof in thewill that the
witnesses have stated these elemental facts
would be their signatures on the attestation
clause.
What matters should be stated in the
Attestation Clause?
1. The number of pages used upon which the
will is written.
Azuela v. CA G.R. No. 122880, April 12, 2006
The petitioner argues that the requirement
under Article 805 of the Civil Code that the
number of pages used in a notarial will be
stated in the attestation clause is merely
directory, rather than mandatory, and thus
susceptible to what he termed as the
substantial compliance rule. As admitted b
petitioner himself, the attestation clause fails
this requisite, a space having been allotted for
the insertion of the number of pages in the
attestation clause. Yet the blank was never
filled in; hence, the requisite was left
uncomplied with.
Held: The failure of the attestation clause to
state the number of pages on which the will
was written remains a fatal flaw, despite Article
809 (substantial compliance). The purpose of
the law in requiring the clause to state the
number of pages on which the will is written is
to safeguard against possible interpolation or
omission of one or some of its pages and to
prevent any increa ore decrease in the pages.
The failure to state the number of pages
equates with the absence of an averment on
the part of the instrumental witnesses as to how
many pages consisted the will, the execution
of which they had ostensibly witnessed and
subscribed to. Following Caneda, there is
substantial compliance with this requirement if
the will states elsewhere in it how many pages
it is comprised of, as was the situation in
Singson v. Taboada. However in this case,
there could have been no substantial
compliance with the requirements under
Article 805 since there is no statement in the
attestation clause or anywhere in the will itself
as to the number of pages which comprise the
will.
Taboada v. Rosal, 118 S 195, G.R. No. L-36033,
November 5, 1982
The attestation clause failed to state the
number of pages used in writing the will. This
would have been a fatal defect were it not for
the fact that, in this case, it is discernible from
the entire will that it is really and actually
composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the
entirety of the testamentary dispositions is
signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed
at the left margin. The other page hich is
marked as “Pagina Dos” comprises the
attestation clause and the acknowledgment.
The acknowledgment itself states that “This Last
27
Will and Testament consists of two pages
including this page.”
Testate Estate of the Late Alipio Abada v.
Abaja, G.R. No. 147145, January 31, 2005
Caponong-Noble proceeds to point out
several defects in the attestation clause.
Caponong-Noble alleges that the attestation
clause fails to state the number of pages on
which the will is written. The allegation has no
merit. The phrase which means in the left
margin of each and every one of the two
pages consisting of the same shows that the
will consists of two pages. The pages are
numbered correlatively with the letters One
and two as can be gleaned from the phrase
“las cuales estan paginadas correlativamente
con las letras uno y dos.
2. 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 only;
Garcia v. Lacuesta (90 Phil. 489): A lawyer
wrote the name of testator Antero Mercado.
Testator placed a cross after his name.
Because the cross was not the customary
signature of testator, the will is deemed to
have been signed by the lawyer for the
testator. Hence, attestation must state that will
is signed by another under express direction of
testator –Exam Question
Payad v. Tolentino (62 Phil 848): not required to
state that another person was requested by
testator to sign for him because will is
thumbmarked by testator.
Need not state that the person caused by the
testator to sign signed in the testator‟s
presence (Jallores v. Interino, L-42463)
3. The signing by the testator or by the person
requested by him was in the presence of the
instrumental witnesses.
4. That the instrumental witnesses witnessed
and signed the will and all the pages thereof in
the presence of the testator and of one
another.
Testate Estate of the Late Alipio Abada v.
Abaja, G.R. No. 147145, January 31, 2005
1. Caponong-Noble further alleges that the
attestation clause fails to state expressly that
the testator signed the willand its every page in
the presence of three witnesses. The English
translation of the first sentence of the
attestation clause reads: „Subscribed and
professed by the testator Alipio Abada as his
last will and testament in our presence, the
testator having also signed it in our presence
on the left margin of each and every one of
the pages of the same.” The attestation clause
clearly states that Abada signed the will and its
every page in the presence of the witnesses.
2. However, Caponong-Noble is correct in
saying that the attestation clause does not
indicate the number of witnesses. On this point,
the Court agrees with the appellate court in
applying the rule on substantial compliance in
determining the number of witnesses. While the
attestation clause does not state the number
of witnesses, a close inspection of the will show
sthat three witnesses signed it. We rule to apply
the liberal construction in the probate of
Abada‟s will. Abada‟s will clearly shows four
signatures, that of Abada and of three other
persons. It is reasonable to conclude that there
are three witnesses to the will. The question on
the number of the witnesses is answered by an
examination of the will itself and without the
need for presentation of evidence aliunde. The
court explained the extent and limits of the rule
on liberal construction, thus: The so called
liberal rule does not offer any puzzle or
difficulty, nor does it open the door to serious
consequences. The later decisions dot ell us
when and where to stop , they draw the
dividing line with precision. They do not allow
evidence aliunde tofill a void in any part of the
document or supply missing details that should
appear in the will itself. They only permit a
probe in the will, an exploration within its
28
convines, to ascertain its meaning or to
determine the existence or absence of the
requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to
banish any fear of dire results.
3. Finally, Caponong-Noble alleges that the
attestation clause does not expressly state the
circumstances that the witnesses witnessed
and signed the will and all its pages in the
presence of the testator and of each other.
This court has ruled: Precision of language in
the drafting of an attestation clause is
desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be
made. It is sufficient if fro the language
employed it can reasonably be deduced that
the attestation clausefulfills what the law
expects of it. The last part of the attestation
clause states “en testimonio de ell, cada uno
de nosotros to firmamos en presencia de
nosotros y del testador.” In english, this means
“in its witness, every one of us also signed in our
presence and of the testator.” This clearly
shows that the attesting witnesses witnessed
the signing of the will of the testator and that
each witness signed the will in the presence of
one another and of the testator.
What language is Used in the Attestation
Clause?
1. Preferably language or dialect known to the
witnesses
2. Language or dialect not known to the
witness – can also be used but must be
interpreted to the witness.
What is an acknowledgment before a Notary
Public?
 A statement made by the notary public
that the testator and the witnesses have
personally come before him, that they
voluntarily executed the will and that
they understood its contents.
 Meaning of to acknowledge: to own as
genuine to avow or admit.
Azuela v. CA G.R. No. 122880, April 12, 2006
Yet there is another fatal defect to the will on
which the denial of this petition should also
hinge. The requirement under Article 806 that
“every will must be acknowledged before a
notary public by the testator and the
witnesses” has also not been complied with.
The importance of this requirement is
highlighted by the fact that it had been
segregated from the other requirements under
Article 805 and entrusted into a separate
provision, Article 806. The non-observance of
Article 806 in this case is equally critical as the
other cited flaws in compliance with Article 805
and shouldbe treated as of equivalent import.
In lieu of an acknowledgement, the notary
public, Petronio Y. Bautista wrote “Nilagdaan
ko at ninotario ko ngayong 10 ng Hunyo 10,
1931 dito sa Lungsod ng Maynila” By no
manner of contemplation can those words be
construed as an acknowledgment. An
acknowledgment is the act of one who has
executed a deed in going before some
competent officer or court and declaring it to
be his act or deed. It involves an extra step
undertaken whereby the signor actually
declares to the notary that the executor of a
document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the averment
as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of
an affidavit where the notary certifies that
before him/her, the document was subscribed
and swornto by the executor. Ordinarily, the
language of th3e jurat should avow that the
document was subscribed and sworn before
29
the notary public, while in this case, the notary
public averred that he himself “signed and
notarized” the document. Possibly though, the
word “ninotario or notarized” encompasses
the signing of and swearing in of the executors
of the document, which in this case would
involve the decedent and the instrumental
witnesses.
Yet even if we consider what was affixed by
the notary public as a jurat, the will would
nonetheless remain invalid, as the express
requirement of Article 806 is that the will be
“acknowledged”, and not merely subscribed
and sworn to. The will does not present any
textual proof, much less one under oath, that
the decedent and the instrumental witnesses
executed or signed the will as their own free
act or deed. The acknowledgment made in a
will provides for another all-important legal
safeguard against spurious wills or those made
beyond the free consent of the testator. An
acknowledgment is not an empty meaningless
act. The acknowledgment coerces the
testator and the instrumental witnesses to
declare before an officer of the law that they
had executed and subscribed to the will as
their own free act or deed. Such declaration is
under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons
who participate in the execution of spurious
wills or those executed without the free
consent of the testator. It also provides a
further degree of assurance that the testator is
of certain mindset in making the testamentary
dispositions to those persons he/she
designated in the will. It may not have been
said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will
that is not acknowledged before a notary
public by the testator and the witnesses is
fatally defective even if it is subscribed and
sworn to before a notary public.
Can the Notary Public be one of the
Instrumental Witnesses?
No because:
1. He cannot acknowledge document before
himself. He cannot split his personality into 2.
Case: Cruz v. Villasor, November 26, 1973
2. Function of notary public is to guard against
any illegal or immoral arrangements. Function
would be defeated if he were on of the
attesting witnesses because by then he would
be interested in sustaining the validity of the wil
as it directly involves himself and the validity of
his own act.
Is the Notary Public required to know the
contents of the will?
 As a general rule, notary public is not
required to read the will or know the
contents thereof.
 Exception: If the testator is blind
because the will has to be read onceby
a subscribing witness and again by the
notary public before whom the will is
acknowledged.
Is failure to affix a documentary stamp in a n
acknowledged will a fatal defect?
 Failure to affix documentary stamp in
the acknowledgment of the will. Nota
fatal defect. Justrequire the parties to
affix the documentary stamp. Case:
Gabucan v. Judge Manta, 21 S 1056,
January 28, 1980
What are theadditional requisites for a blind
testator?
 Reading is twice.
1. Once by one of the subscribing witnesses.
2. Once by the notary public.
 Even if testator is blind, no requirement
that notary public should be present
during execution of will
30
 If testator is deaf-mute and also blind,
generally cannot execute a will unless
the contents of the will may be
communicated to him in accordance
with law.
 Article 808 applies also topersons who
are incapable of reading wills like
illiterate.
Alvarado v. Gaviola, 226 S 317
The testatrix was suffering from glaucoma
by virtue of which her vision on both eyes
were on capable of counting fingers at
three feet. She designated a lawyer to draft
her notarial will. After the final draft was
completed, the lawyer distributed copies of
the will to the three instrumental witnesses
and to the notarypublic before whom the
will was to be acknowledged. The lawyer
who drafted the will read the will aloud in
the presence of the testatrix, the three
instrumental witnesses, and the notary
public. The latter four just silently followed
the reading with their own respective
copies, previously furnished them. Upon
being asked, the testatrix affirmed that the
contents as read corresponded with her
instructions. The signing and
acknowledgment then took place. The
probate was contested on the ground that
the reading requirement under Article 808
of the New Civil Code was not complied
with.
Held: Article808 applies not only to blind
testators but also to those who for one
reason or another, are incapable of
reading their wills. Hence, the will should
have been read by th3e notary public and
an instrumental witness. However, the spirit
behind the law was served though the
letter was not. Although there should be
strict compliance with the substantial
requirements of the law in order to insure
the authenticity of the will, the formal
imperfections should be brushed aside
when they do not affect its purpose and
which, when taken into account, may only
defeat the testator‟s will.
Garcia v. Vasquez, 32 S 490
The declarations in court of the
ophthalmologist as to the condition of the
testatrix‟s eyesight fully establish the fact
that her vision remained mainly for viewing
distant objects and not for reading print;
that she was at the time of the execution of
the second will on December 29, 1960,
incapable of reading and could not have
read the provisions of the will supposedly
signed by her. Upon its face, the
testamentary provisions, the attestation
clause and acknowledgment were
crammed together into a single sheet of
paper, apparently to save on space.
Plainly, the testament was not prepared
with any regard for the defective vision of
Dona Gliceria, they typographical errors
remained uncorrected thereby indicating
that the execution thereof must have been
characterized by haste. It is difficult to
understand that so important a document
containing the final disposition of one‟s
wordly possession should be embodied in
an informal and untidy written instrument;
or that the glaring spelling errors should
have escaped her notice. If she had
actually retained the ability to read the
purported will and had done so. The
rationale behind the requirement of
reading the will to the testator if he is blind
or incapable of reading the will himself is to
make the provisions thereof known to him,
so that he may be able to object if they
are not in accordance with his wishes.
Where as in the 1960will there is nothing in
the record to show that the requisites of Art.
808 of the Civil Code of the Philippines that
“ if the testator is blind, the will shall be read
to him twice,” have not been complied
with, the said 1960 will suffer from infirmity
that affects its due execution.
How should the formalities be construed?
31
 1. Generally formalities in the execution of
wills are strictly construed: Abangan v.
Abangan, 40 Phil 476
2.Purpose: To close doors against fraud,
bad faith, to avoid substitution, to
guarantee authenticity of wills.
 Purpose: designed to attain the main
3. Compare with Article 788 on liberal
interpretation. Article 788 talks about liberal
interpretation of doubts in the dispositions.
Interpretation of body or contents of will
should not extend to the manner of
execution or formalities.
 Justice J.B.L. Reyes observed that if the rule
4. But will should not be so literally
interpreted as to penalize the testator who
was without fault where the purpose of the
law is sufficiently attained.
Icasiano v. Icasiano, 11 SCRA 720
 Hence, the rule must be limited to
The original of the will consisted of 5 pages
but while signed at the end of each and
every page, it did not contain the signature
of one of the attesting witnesses on page 3
thereof, due to the simultaneous lifting of 2
pages in the course of the signing although
the duplicate copy was signed by the
testatrix and the attesting witnesses in each
and every page.
Held: The law should not be so strictly and
literally interpreted as to penalize the
testatrix on account of the inadvertence of
a singe witness over whose conduct she
had no control, where the purpose of the
law is to guarantee the identity of the
testament and its component pages is
sufficiently attained, no intention or
deliberate deviation existed, and the
evidence on record attests to the full
observance of the statutory requisites.
WHAT IS THE PRINCIPLE OF SUBSTANTIAL
COMPLIANCE?
 As long as purpose of attestation is served,
the will should be given effect. Case:
Alvarado vs. Gaviola (226 SCRA 317)
 Substantial Compliance – when there has
been an honest attempt to comply with all
the requirements of the law but the
compliance is only substantial not literal
and the purpose sought to be attained by
the law is accomplished though not strictly
followed.
objective in the liberalization of the manner
of executing wills. Policy is to require
satisfaction of legal requirements to guard
against fraud and bad faith but without
undue or unnecessary curtailment of
testamentary privilege.
is so broad that no matter how imperfect
the attestation clause happens to be, the
same could be cured by evidence aliunde
or extrinsic execution. Also discussed in
Caneda vs. CA (222 SCRA 781)
disregarding those defects that can be
supplied by an examination of the will itself:
Eg. Whether the pages are consecutively
numbered, whether the signatures appear
in each and every page, whether there are
3 subscribing witnesses, etc.
TESTATE ESTATE OF THE LATE ALIPIO ABADA
vs. ABAJA (G.R. NO. 147145, JANUARY 31,
2005)
[T]he so-called liberal rule does not offer
any puzzle or difficulty, nor does it open
door to serious consequences. The later
decisions do tell us when and where to
stop; they draw the dividing line with
precision. They do not allow evidence
aliunde to fill a void in any part of the
document or supply missing details that
should appear in the will itself. They only
permit a probe into the will, an exploration
within its confines, to ascertain its meaning
or to determine the existence or absence of
the requisite formalities of law. This clear,
sharp limitation eliminates uncertainty and
ought to banish any fear of dire results.
Taboada vs. Rosal
32
 Caneda vs. CA (222 SCRA 784) – Actually
talks “3 pages and he has signed the same
and every page thereof, on the spaces
provided for his signature, and on the left
hand margin in the presence of the said
testator and in the presence of each and
all of us.” Void. Omits the statement that
witnesses signed each and every page in
the presence of each other. Article 809
can be applied where the defect can be
cured and supplied by the text of the will or
a consideration of matters apparent
therefrom.
 NOTE: IN BOTH DEFECTS OF FORM AND
SUBSTANCE, LIBERAL ITERPRETATION APPLIES
ONLY WHEN THE DEFECT CAN BE CURED BY
INTRINSIC EVIDENCE
WHAT ARE THE REQUISITES FOR HOLOGRAPHIC
WILLS?
1. Must be written in a language or dialect
known to the testator (Art 804);
2. Entirely written by the testator;
3. Must be dated by him;
4. Must be signed by him;
5. Must be made with animus testandi;
Entirely written
 Must be wholly autographic or handwritten
by testator himself.
 Purpose: efficient guaranty against all
falsifications or alterations in the will. Easier
to forge the signature of testator than forge
the whole text or will.
 Mechanical drafting cannot be entrusted
to third person. But a third person may draft
a will and the testator may just copy the
draft made by the third person.
 Will partly or wholly printed, typewritten,
computerized is void. Even if only the date
is typewritten, will is void.
 What if not handwritten? If testator has no
hands, he can write by mouth or foot as
long as the writing is done by testator
himself.
 No attestation required. If there is any, a
mere surplusage. If attestation is
typewritten, still surplusage because
attestation is strictly not part of will.
Date of Will
 Purpose: (1) to provide against
contingencies as that of 2 competing wills
executed on same day or different dates –
the will executed on the later date is
considered as truly expressing last will; (2) to
determine whether or not testator became
insane on the day when will is made; (3) to
determine if will is valid because there is a
point in history wherein holographic wills are
no allowed.
 Gen. Rule: should include the day, month
and year
 What if date is indicated by implication?
Eg. Christmas day of 2003. Case: Roxas vs.
De Jesus, Jr. (Jan. 28, 1985) – will was
allowed even if Feb 1961 because the
contingencies guarded against are not
present.
 Where should date appear? Anywhere. Eg.
Top, bottom, body, signature, etc. Case:
Labrador vs. CA (180 SCRA 120)
Signature
 Law says Full signature. Ideally, full first
name and family name.
 But if the customary signature is a
pseudonym or initial of first/lastname name
and full first name/surname, also allowed as
long as it is the full customary signature.
 But all initials are not allowed.
 Thumbmark not allowed because it is not
the handwriting of testator.
 Time of signing: Signing may be done on a
date subsequent to the execution of will
 Location of signature: at the end of will as
evident in Art. 812
 Can be made by a blind testator as long as
qualified
CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS
SIGNATURE IN A HOLOGRAPHIC WILL?
 Yes. The additional dispositions must be
dated and signed by the testator. When a
number of dispositions appearing in a
holographic will are signed without being
dated, and the last disposition has a
signature and a date, such date validates
33
 the dispositions preceding it, whatever be
the time of prior dispositions.
WHAT IF THE ADDITIONAL DISPOSITION IS
WRITTEN BY A THIRD PERSON?
1. If disposition is also signed and dated by
the third person, with nor without testator‟s
consent, disposition is void. It is
independent of the will because it does not
have the participation of the testator in the
form of his signature. Will not affect the
validity of the will itself. Consider as not
written.
2. If signed and dated by the testator, whole
will is void because by affixing the testator‟s
signature and date, the additional
dispositions become part of the will, not
independent anymore. In this case, there
are portions of the will not written by the
testator. A holographic will must be entirely
written, date and signed in the hand of the
testator. Relate to Article 810.
CAN THE TESTATOR MAKE INSERTIONS,
CANCELLATIONS, ERASURES OR ALTERATIONS IN
A HOLOGRAPHIC WILL?
- Insertion, cancellation, erasure or alteration
in a holographic will is not prohibited as
long as authenticated by full signature of
testator.
- Reason: To prevent fraud. The execution of
will is a personal act of the testator so it is
but natural and logical that he alone can
authenticate whatever correction may be
found in the will.
- Without authentication: Gen. Rule: Will is
valid. Insertions, etc. considered as not
made.
- Exception: where insertions, etc. affect the
essence of the will as when there is intent to
revoke, then whole will is invalidated.
Examples:
1. Kalaw vs. Relova (132 SCRA 237) – there
was only one substantial provision which
was altered by substituting the original
heir with another heir. The alteration had
no full signature. Held: whole will void
because nothing remains in the will after
the alteration invalidated.
2. Ajero vs. CA (236 SCRA 488, 1994) –
effect of unauthorized alterations,
cancellations, or insertions (insertions not
authenticated by full signature of
testator). If made on the date, or
signature in a holographic will, entire will
is void.
WHAT IS A JOINT WILL?
 It is one where the same testamentary
instrument is made the will of two or more
persons and is jointly executed and signed
by them. It is not necessarily mutual.
 Mutual or reciprocal wills – the separate
wills of two persons which are reciprocal in
their provisions, giving the separate
property of each testator to the other. They
are executed with a common intention on
the part of the testators irrespective of
whether there is a contract between them,
although the contractual element is often
involved. Also called twin will in American
law.
 Mutual or reciprocal wills or twin wills may
be embodied in separate instruments or in
the same instrument. If in separate
instruments, allowed. Give example: if in the
same instrument, they become joint wills
and are thus prohibited. In this case, they
are called joint and mutual wills:
 Joint will is subject to attack wherever and
whenever offered as an instrument.
- Reasons:
1. destroys character of will as strictly
personal act;
2. tends to convert a will into a
contract;
3. runs counter to the idea that wills are
essentially revocable (cannot burn,
tear, etc.);
4. may subject one to undue influence
and may induce parricide if
reciprocal;
5. makes probate much more difficult
in case of death of testators at
different times.
 Exceptional circumstance when joint will
was given effect. Case: Dela Cerna vs.
Potot (12 SCRA 576) – a joint will was
executed by husband and wife in favour of
34
 niece. Husband died first, will was
erroneously probated in 1939. Judgment
became final because no appeal was
made. Upon the subsequent death of wife,
another petition for probate was made as
far as the estate of wife is concerned.
Lower Court declared will null and void but
reversed by the CA on the ground that the
decree of probate 1939 was conclusive on
the due execution of will.
 Held: the decision in 1939 which became
final has conclusive effect as the last will
and testament of husband. Although
erroneous because joint wills are not
supposed to be allowed, it could no longer
be corrected by reason of its finality.
However, that erroneous allowance should
only apply with respect to the estate of the
husband. The finality of the 1939 decree
should not extend to the estate of the wife
which was then the one under
consideration considering that a joint will is
a separate will of each testator. Upon the
wife‟s death, the joint will presented for
probate must be examined and
adjudicated de novo (anew).
 Even if the laws of other countries
(Argentina, Brazil, France, mexico) allow
joint wills and the will is executed in these
countries, still, if it is a Filipino who executes
the same, will is still void.
 If foreigner executes joint wills:
1. Abroad – if allowed in the law of place
where he resides, or in the place of his
nationality, (art. 816) or in the place of
execution (art. 17) then will is
considered valid in the Philippines. If one
spouse is a Filipino, void as to Filipino,
valid as to foreigner.
2. In the Philippines – valid under art. 817 if
executed according to the law of their
country which allows joint wills. But may
be argued that void by reason of public
policy that should prevail over Art. 817.
WHAT LAWS GOVERN THE REVOCATION OF
WILLS?
1) If made in the Philippines
- follow Philippine laws regardless of
domicile or nationality of the testator
2) If made outside the Philippines:
(c) By a non-resident (Filipino or alien)
i. law of the place where the will
was made;
ii. law of the place of domicile
(d) By a resident (Filipino or alien)
i. law of the place of revocation
ii. law of the place of domicile
(Philippines)
 National law has no applicability in cases of
revocation
 The testator must have testamentary
capacity at the time of revocation
HOW IS REVOCATION EFFECTED?
1. By implication of law (Revocation by
Operation of Law)
2. By some will, codicil, or other writing
executed as provided in case of wills
(Revocation by a Subsequent instrument)
- Here, the new instrument must be
admitted to probate before it can
revoke the old will.
Express revocation – when the subsequent
instrument has a revocatory clause
revoking the previous will.
Implied revocation – the new will or codicil
is completely inconsistent with the old will.
3. By burning, tearing, cancelling or
obliterating the will with the intention of
revoking it, by the testato0r himself, or by
some other person in his presence, and by
his express direction (Revocation by Overt
Acts)
- intent must concur with overt acts
- overt acts may not be limited to
burning, tearing, cancelling or
obliterating because in the case of
Roxas vs. Roxas 48 O.O. 2177, the court
impliedly allowed crumpling as one of
the overt acts provided there is animo
revocandi.
WHAT IS THE DOCTRINE OF ABSOLUTE
REVOCATION?
- a probated new will, although valid, amy
become inoperative or ineffective due to
the incapacity of the heirs, devisees or
legatees. This fact notwithstanding, the
revocation of the previous will remains
effective. The reason is that the revoking will
35
 is valid except that it was rendered
inoperative.
WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE
REVOCATION?
- where the act or destruction is connected
to the making of a will so as to squarely
raise the inference that the testator meant
the revocation of the old would depend
upon the efficacy of the new disposition
and if for any reason, the new will intended
to be made as a substitute is inoperative,
the revocation fails and the original will is in
full force and effect.
WHAT IS THE PRINCIPLE OF INSTANTER?
- if a valid will is expressly revoked by a
second will and the second will is itself
revoked, the first will is not revived. Reason:
revocation takes effect immediately
because it is not testamentary in character.
WHAT IS REPUBLICATION OF WILLS?
- the re-establishment by the testator of a
previously revoked will or one invalid for
want of proper execution as to form or for
other reasons, so as to give validity to said
will.
 If a will is void as to form due, to non-
observance of formalities, the only way
to revive the will is by express
republication or republication by re-
execution. Meaning, the will must be
executed anew, this time, complying
with the formalities.
 If a will is void but not as to form, such as
when the testator had no testamentary
capacity at the time it was executed, or
the will was revoked, republication can
be effected by re-execution or also by
implied republication or republication
by reference. Here, there is no need to
copy the entire provisions of the old will.
Mere reference made in the new will or
codicil to the existence of the old will
suffices.
WHAT IS REVIVAL OF WILLS?
- The re-establishment of validity by
operation of law of a previously revoked
will.
Examples:
- When a valid will is impliedly revoked by
a second will, and the second will is itself
revoked, the first will is revived
(application of the doctrine of
dependent relative revocation);
- Preterition annuls the institution of heirs.
But if the preterited heir dies ahead of
the testator, the institution is revived
without prejudice to the right of
representation.
WHAT IS “PROBATE”?
“Probate” is a special proceeding to establish
the validity of a will.
WHAT ARE THE BASIC PRINCIPLES IN PROBATE?
1. PROBATE IS MANDATORY
MANINANG vs. CA (114 SCRA 478) –
because public policy requires it for unless
the will is probated and notice thereof
given to the whole world, the right of a
person to dispose of his property by will may
be rendered nugatory.
VDA. DE KILAYKO vs. JUDGE TENGCO [G.R.
NO. L-45425. MARCH 27, 1992.]
Until probated, a will cannot be used or
given in evidence as the foundation of a
right or title to real or personal property.
Thus, the rule is that there can be no valid
partition among the heirs till after the will
has been probated, but this rule
presupposes that the properties to be
partitioned are the same properties
embraced in the will.
2. ESTOPPEL AND PRESCRIPTION WILL NOT
APPLY IN PROBATE
ALSUA-BETTS vs. CA (July 30, 1979) –
principle of estoppels is not applicable in
probate proceedings.
36
 IN RE ESTATE OF PILAPIL (72 Phil 545) – the
right to ask probate does not prescribe.
3. PROBATE IS LIMITED TO THE EXTRINSIC
VALIDITY OF THE WILL
Matters resolved in probate (Dorotheo vs.
Court of Appeals)
1. Whether the instrument offered for
probate is the last will and testament of
the decedent – a question of identity;
2. Whether the will was executed
according to the formalities required by
law – a question of due execution;
3. Whether the testator had testamentary
capacity at the time of execution – a
question of testamentary capacity.
 Hence, probate court no power to
pass upon intrinsic validity or legality
of provisions in the will, such as:
a. legacy is void;
b. invalid disinheritance;
c. a certain persom has no
right to inheritance;
d. impairment of legitime;
e. filiation;
f. title to property.
 Exceptions:
CAYETANO vs. LEONIDAS (May 30, 1984)
The third issue raised deals with the validity of
the provisions of the will. As a general rule, the
probate court‟s authority is limited only to the
extrinsic validity of the will, the due execution
thereof, the testatrix‟s testamentary capacity
and the compliance with the requisites or
solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the
court has declared that the will has been duly
authenticated. However, where practical
considerations demand that the intrinsic
validity of the will be passed upon, even
before it is probated, the court should meet
the issue. (Maninang vs. Court of Appeals, 114
SCRA 478).
MAGALLANES vs. KAYANAN (Jan. 20, 1976):
Ownership may be passed upon in probate
when:
a. the parties are all heirs and they
voluntarily submit the matter to the
court;
b. the ownership is passed upon to
determine whether or not the property
involved is part of the estate
 As to proof of filiation:
1. May be given if it is essential to
establish which of the 2 wills has
been revoked;
2. To prove prima facie whether or
not an oppositor or intervenor
who claims to be related to the
testator can be allowed to
intervene in the probate
proceedings for the purpose of
protecting his rights.
 But the final decision on these matters may
be threshed out in another proceeding.
NOT RES JUDICATA.
DE LEON vs. COURT OF APPEALS (G.R. NO.
128781, August 6, 2002)
A probate court, whether in a testate or
intestate proceeding, can only pass upon
questions of title provisionally. The rationale
therefore and the proper recourse of the
aggrieved party are expounded in Jimenez v.
Court of Appeals:
“The patent reason is the probate
court‟s limited jurisdiction and the principle
that questions of title or ownership, which
result in inclusion or exclusion from the
inventory of the property, can only be
settled in a separate action.
“All that the said court could do as
regards said properties is determine
whether they should or should not be
included in the inventory or list of properties
to be administered by the administrator. If
there is a dispute as to the ownership, then
the opposing parties and the administrator
37
 have to resort to an ordinary action for a
final determination of the conflicting claims
of title because the probate court cannot
do so.” [24]
Further, in Sanchez v. Court of Appeals,
we held:
“[A] probate court or one in charge of
proceedings whether to state or intestate
cannot adjudicate or determine title to
properties claimed to be a part of the
estate and which are claimed to belong to
outside parties. All that the said court could
do as regards said properties is to
determined whether they should or should
not be included in the inventory or list of
properties to be administered by the
administrator. If there is no dispute, well and
good, but if there is, then the parties, the
administrator, and the opposing parties
have to resort to an ordinary action for a
final determination of the conflicting claims
of title because the probate court cannot
do so.” [25]
Guided by the above jurisprudence, it is
clear that the Court of Appeals committed an
error in considering the assailed Order dated
November 11, 1994 as final or binding upon the
heirs or third persons who dispute the inclusion
of certain properties in the intestate estate of
the deceased Rafael Nicolas. Under the
foregoing rulings of the Court, many aggrieved
party, or a third person for that matter, may
bring an ordinary action for a final
determination of the conflicting claims. For all
intents and purposes, said Order is a mere
order including the subject properties in the
inventory of the estate of the decedent.
The Court held in Valero Vda. De Rodriguez
v. Court of Appeals that the order of exclusion
(or inclusion) is not a final order; that it is
interlocutory in the sense that it did not settle
once and for all the title to the subject lots;
that the prevailing rule is that for the purpose
of determining whether a certain property
should or should not be included in the
inventory, the probate court may pass upon
the title thereto but such determination is not
conclusive and is subject to the final decision in
a separate action regarding the ownership
which may be instituted by the parties.
In the Rodriguez case, the Court
distinguished between an order of collation
and an order of exclusion from or inclusion in
the estate‟s inventory, thus:
“We hold further that the dictum of the
court of Appeals and the probate court
that the two disputed lots are not subject to
collation was a supererogation and was
not necessary to the disposition of the case
which merely involved the issue of inclusion
in, or exclusion from, the inventory of the
testator‟s estate. The issue of collation was
not yet justiciable at that early stage of the
testate proceeding. It is not necessary to
mention in the order of exclusion the
controversial matter of collation.
“Whether collation may exist with
respect to the two lots and whether Mrs.
Rustia‟s Torrens titles thereto are
indefeasible are matters that may be raised
later or may not be raised at all. How those
issues should be resolved, if and when they
are raised, need not be touched upon in
the adjudication of this appeal.
4. PROBATE IS A PROCEEDING IN REM
ATILANO MERCADO VS. SANTOS (66 Phil
216) – probate proceeding is a proceeding
in rem. The judgement of the court is
binding upon everybody even against the
State.
5. PROBATE IS CONCLUSIVE AS TO THE DUE
EXECUTION OF WILLS
 Due execution of will and testamentary
capacioy of testator acquire the
character of res judicata.
ATILANO MERCADO vs. SANTOS (66 Phil
216) – After final judgment on the
probate, proponent was prosecuted for
38
 allegedly having presented a forged
will. The case for forgery could not
propsper because judgment on
probate was conclusive as to the due
execution of the will.
WHO MAY INTERVENE IN PROBATE
PROCEEDINGS?
- in order that a person may be allowed
to intervene in a probate proceeding,
he must have an interest in the estate or
in he will, or in the property to be
affected by it. Must be an interested
party or one who would be benefitted
by the estate such as an heir or one
who has a claim against the estate like
a creditor, and whose interest is material
and direct not merely incidental or
contingent.
LEVISTE vs. COURT OF APPEALS (G.R. NO.
L-29184 JANUARY 30, 1989)
The petitioner, a practicing attorney,
entered into a written agreement with
Rosa del Rosario to appear as her
counsel in a petition for probate of the
holographic will of the late Maxima C.
Reselva. Under the will, a piece of real
property was bequeathed to Del
Rosario. It was agreed that petitioner‟s
contingent fee would be thirty-five per
cent (35%) of the property that Rosa
may receive upon the probate of the
will. On August 20, 1965, Leviste
received a letter from Ms. Del Rosario,
informing him that she was terminating
his services as her counsel due to
“conflicting interest.” On September 20,
1965, petitioner filed a “Motion to
Intervene to protect His Rights to Fees
for Professional Service.”
On November 23, 1966, Del Rosario and Rita
Banu, the special administratrix-legatee, filed a
“Motion to Withdraw Petition for Probate”
alleging that Del Rosario waived her rights to
the devise in her favor and agreed that the De
Guzman brothers and sisters, who opposed her
petition for probate, shall inherit all the
properties left by the decedent. Nonetheless,
her petition for probate, shall inherit all the
properties left by the decedent. Nonetheless,
on August 28, 1967, the court disallowed the
will, holding that the legal requirements for its
validity were not satisfied as only two witnesses
testified that the will and the testatrix‟s
signature were in the handwriting of Maxima
Reselva. The petitioner appealed contending
that by virtue of his contract of services with
Del Rosario, he is a creditor of the latter, and
that under Article 1052 of the Civil Code he has
a right to accept for his client Del Rosario to
the extent of 35% thereof the devise in her
favor (which she in effect repudiated) to
protect his contingent attorney‟s fees.
The argument is devoid of merit. Article 1052 of
the Civil Code does not apply to this case. That
legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of
Rosa del Rosario. The payment of his fees is
contingent and dependent upon the
successful probate of the holographic will.
Since the petition for probate was dismissed by
the lower court, the contingency did not
occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the
obligor is an heir. Rosa Del Rosario is not a legal
heir of the late Maxima C. Reselva. Upon the
dismissal of her petition for probate of the
decedent‟s will, she lost her right to inherit any
part of the latter‟s estate. There is nothing for
the petitioner to accept in her name. Petitioner
was not a party to the probate proceeding in
the lower court. He had no direct interest in the
probate of the will. His only interest in the
estate is an indirect interest as former counsel
for a prospective heir. In Paras v. Narciso, 35
Phil. 244, one who is only indirectly interested in
a will may not interfere in its probate. Thus:
“… the reason for the rule excluding strangers
from contesting the will, is not that thereby the
court maybe prevented from learning facts
which would justify or necessitate a denial of
probate, but rather that the courts and the
litigants should not be molested by the
intervention in the proceedings of persons with
no interest in the estate which would entitle
39
them to be heard with relation thereto Paras v. A. Word “shall” connotes an imperative
Narciso, 35 Phil. 244, 246.” obligation and is inconsistent with the idea of
discretion.
Who will testify During Probate?
B. To prevent the possibility that unscrupulous
-Rule 76, Rules of Court individuals who, for their benefit, will employ
means to defeat the wishes of the testator.
Notarial Will Holographic Will Since the possibility of a false document being
adjudged as the will cannot be eliminated, if
Uncontested -testimony of one the will is contested, at least 3 of the required
witness who knows witnesses should declare that the holographic
-testimony of one the signature and will is in the handwriting and signature of
subscribing witness handwriting of testator.
testator expert
Contested testimony may be Can the will be probated in the absence of a
resorted to. copy presented in Court?
-all the subscribing
witnesses and the -at least 3 who knows In case of notarial wills: YES. Even if there is no
notary public must signature and copy of the will, the will may still be probated if
testify handwriting its contents are clearly and distinctly proved by
at least 2 credible witnesses.
-If insane, dead, -expert testimony
absent in the In case of holographic wills: NO! In holographic
Philippines, testify wills, there is no guaranty of the truth and
against due veracity of the will from the mere testimony of
execution, do not witnesses because these witnesses are not
remember having present during the execution of the will. The
attested, or of law regards the document itself as material
doubtful credibility, proof of authenticity, and as its own safeguard,
testimony of other since, from the document itself, it could be
witnesses may be demonstrated whether or not it is in the hands
allowed. of the testator himself. Witnesses may be
mistaken in their opinion as to the handwriting
Is it Mandatory to Present the 3 Witnesses
of the testator or they may deliberately lie.
Mentioned if the Holographic Will is Contested?
Oppositors may present contradictory
evidence, such as testimonies of other expert
In the case of Azaola v. Singson not
witnesses or other witnesses who know the
mandatory because no witnesses are required
handwriting and signature of the testator, or
during execution of holographic wills, hence, it
writings or letters in the handwriting and
is obvious that the existence of witnesses
signature of the testator. In view of such
possessing the requisite qualification is a matter
contradictory evidence, the court may use its
beyond the control of the proponent of will.
own visual sense and decide in the face of the
Mandatory only in notarial wills because at
document, whether it has indeed been written
least 3 witnesses are required during the
by the testator.
execution of will.
Thus, if the will is holographic, there must at
BUT in the case of Codoy v. Caluga, 312 SCRA
least be a copy. Otherwise, the will cannot be
333, 1999, 3 witnesses are mandatory in
admitted to probate.
contested holographic will. Reasons:
Rodelas v. Aranza, 119 SCRA 16

40
Photostatic copy of the holographic will may
be probated. Carbon copy also allowed.
What are the Grounds for Disallowance of
Wills?
Article 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have not
been complied with (Arts. 804-809);
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats (Arts.
1334 and 1335);
(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 (must refer to the nature of the
instrument or its contents);
(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 his signature
thereto.
Add: If the will was expressly revoked.
- The grounds are exclusive. No other
grounds can serve to disallow will.
Ortega v. Valmonte, G.R. No. 157451,
December 16, 2005
In 1980, Placido finally came home to stay in
the Philippines, and he lived in the house and
lot which he owned in common with his sister
Ciriaca Valmonte and titled in their names in
TCT 123468. Two years after his arrival from the
United States and at the age of 80 he wed
Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto
Laguio, Jr. On February 5, 1982, Placido
executed a notarial last will and testament
written in English and consisting of 2 pages,
and dated June 15, 1983 but acknowledged
only on august 9, 1983. The first page contains
the entire testamentary dispositions and a part
of the attestation clause, and was signed at
the end or bottom of that page by the testator
and on the left hand margin by the three
instrumental witnesses. The second page
contains the continuation of the attestation
clause and the acknowledgement, and was
signed by the witnesses at the end of the
attestation clause and again on the left hand
margin. It provides in the body that: 2. I give,
devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half portion of
the follow-described properties, which belongs
to me as [co-owner]; 3. All the rest, residue and
remainder of my real and personal properties,
including my savings account bank book in
USA which is in the possession of my nephew,
and all others whatsoever and wherever
found, I give, devise and bequeath to my said
wife, Josefina C. Valmonte; 4. I hereby appoint
my wife, Josefina C. Valmonte as sole executrix
of my last will and testament and it is my will
that said executrix be exempt from filing a
bond;
The allowance to probate of this will was
opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the
testator, especially those found in the USA
2. Petitioner failed to state the names, ages,
and residences of the heirs of the testator; or to
give them proper notice pursuant to law;
3. Will was not executed and attested as
required by law and legal solemnities and
formalities were not complied with;
4. Testator was mentally incapable to make a
will at the time of the alleged execution he
being in an advance state of senility;
5. Will was executed under duress, or the
influence of fear or threats;
41
6. Will was procured by undue and improper
influence and pressure on the part of the
petitioner and/or her agents and/or assistants;
and/or
7. Signature of testator was procured by fraud;
or trick and he did not intend that the
instrument should be his will at the time of
affixing his signature thereto;
HELD: Petitioner does not dispute the due
observance of the formalities in the execution
of the will, but maintains that the
circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges
that respondent, who is the testator‟s wife and
sole beneficiary, conspired with the notary
public and the three attesting witnesses in
deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the
execution and the attestation of the will.
Petitioner contends that it was highly dubious
for a woman at the prime of her young life to
almost immediately plunge into marriage with
a man who was thrice her agexxx and who
happened to be a Fil-American pensionado,”
thus casting doubt on the intention of
respondent in seeking the probate of the will.
Moreover, it supposedly “defies human reason,
logic and common experience,” for an old
man with a severe psychological condition to
have willingly signed a last will and testament.
SC ruled: We are not convinced. Fraud “is a
trick, secret device, false statement or
pretense by which the subject of it is cheated.
It may be of such character that the testator is
misled or deceived as to the nature or
contents of the document which he executes
or it may relate to some extrinsic fact, in
consequence of the deception regarding
which the testator is led to make a certain
willwhich,but for the fraud, he would not have
made.
We stress that the party challenging the will
bears the burden of proving the existence of
fraud at the time of its execution. The burden
to show otherwise shifts to the proponent of the
will only upon a showing of credible evidence
of fraud. Unfortunately in this case, other than
the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some
relatives does not affect the due execution of
a will. That the testator was tricked into signing
it was not sufficiently established by the fact
that he had instituted his wife, who was more
than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and
her family, who were the ones who had taken
the cudgels of taking care of the testator in his
twilight years.”
Moreover, as correctly ruled by the appellate
court, the conflict between the dates
appearing on the will does not invalidate the
document, “because the law does not even
require that a notarial will xxx be executed and
acknowledged on the same occasion.” More
important, the will must be subscribed by the
testator, as well as by three or more credible
witnesses who must also attest to it in the
presence of the testator and of one another.
Furthermore, the testator and the witnesses
must acknowledge the will before a notary
public. In any event, we agree with the CA
that “the variance in the dates of the will as to
its supposed execution and attestation was
satisfactorily and persuasively explained by the
notary public and the instrumental witnesses.”
Notably, petitioner failed to substantiate her
claim of a “grand conspiracy” in the
commission of a fraud. There was no showing
that the witnesses of the proponent stood to
receive any benefit from the allowance of the
will. The testimonies of the three subscribing
witnesses and the notary are credible
evidence of its due execution. Their testimony
favouring it and the finding that it was
executed in accordance with the formalities
required by law should be affirmed, absent
any showing of ill motives.
What is “Institution of Heir”?
42
-It is an act by virtue of which a
testatordesignates in his will the person or
persons who are to succeed him in his property
and transmissible rights and obligations.
What are the characteristics of an instituted
Heir?
1. Testamentary heir as distinguished from legal
or intestate heir. Different from devisee or
legatee.
2. Continues the personality of testator but only
in relation to inheritance without being
personally liable for the debts of the testator.
3. A natural person even if only a conceived
child (as long as conditions under Art. 40 and
41 are present). But dispositions may be made
in favor of juridical persons;
4. Acquires rights limited to the disposable
portion and cannot impair the legitimes,
institution being a voluntary act, cannot be
allowed to affect the legitimes.
5. Presumed to have been instituted equally
with the others unless a contrary intention
appears.
What are the Requisites for a Valid Institution?
1. The will must be extrinsically valid;
2. The institution must be intrinsically valid (no
impairment of legitimes, heir must be certain or
ascertainable,no preterition, etc.);
3. The institution must be effective (no
predecease, repudiation, incapacity of heir)
What is the principle of individuality?
-It is when the testator institutes some heirs
individually and others collectively as when he
says, “I designate as my heirs A and B, and the
children of C,” those collectively designated
shall be considered as individually institute,
unless it clearly appears that the intention of
the testator was otherwise.
Nable v. Unson, 27 Phil. 73
Testator left property to her husband and after
her husband dies, to her sisters and nieces,
such as
A (deceased) – 2 daughters
B (deceased) – 3 daughters
C (alive) - widow
D (alive) – no children
E (alive) – no children
F (alive) – no children
Lower court divided into 6 parts based on the
number of sisters. SC said should be divided
into 9 parts because under Art. 847, those
collectively designated are deemed
individually instituted.
- If the intention of the testator was to
collectively institute, he must express this
clearly in the will. This intention cannot
be proven by evidence outside of the
will.
- This article, being one of institution,
should only be applied to the free
portion. Eg. Institutes his 2 children A and
B and the 3 Children of X as heir to the
estate worth 100,000. Answer: Get first
the legitimes of A and B which is 50,000
each and the remaining 50,000 shall be
divided equally among the 5.
- In institution in favor of brothers and
sisters of full blood and others of half
blood, the inheritance shall be
distributed equally unless a different
intention appears.
- Note: this is not the case in legal or
intestate succession because those of
the full blood get twice as much as
those of the half blood. Reason: there is
no will which will show the intention of
43
 the testator that he intended to give
equal shares.
 Principle of Simultaneity – when the
testator calls to the succession a person
and his children they are all deemd to
have been instituted simultaneouslyand
not successively.
What is the effect of the statement of a false
cause in the institution?
 General Rule: Statement of a false
cause for the institution of heir shall not
vitiate the institution. False cause shall
be considered only as not written.
Reason: cause or consideration not
essential to institution. Real cause is the
liberality or generosity of testator.
 Unlike in Revocation where false cause
makes the revocation invalid
 In illegal cause, as long as there is
another reason for the institution other
than the illegal cause and this reason
need not be stated in the will, institution
is valid.
What is Preterition?
- It is the omission of one, some or all of
the compulsory heirs in the direct line,
whether living at the time of the
execution of the will or born after the
death of the testator, which as a
consequence, shall annul the institution
of heir; but the devises and legacies
shall be valid insofar as they are not
inofficious.
Who can be Preterited?
- Compulsory heirs who are in the direct
line, specifically ascendants and
descendants, ad infinitum, and
adopted children. The spouse cannot
claim preterition because she is not a
relative in the direct line Acain v. IAC,
155 SCRA 100.
What is the omission that results in Preterition?
1. The person is not an heir, not a devisee, not
a legatee, thus, receives nothing by will Aznar
v. Duncan 17 SCRA 590
2. No donation inter vivos was given to him
3. There is nothing which could be inherited by
intestacy because the whole estate was
distributed by will;
4. There is no prior delivery of presumptive
legitime.
Note: The omission may be intentional or
unintentional.
What is the effect of Preterition?
- The institution of heirs is annulled. Hence,
distribute the estate in accordance with
the rules on legal succession. But the
devises and legacies shall be valid
insofar as they are not inofficious. If the
omitted compulsory heirs should die
before the testator, the institution shall
be effectual, without prejudice to the
right or representation
JLT Agro Inc. v. Antonio Balansag, G.R. No.
141882, March 11, 2005
Emerging as the crucial question in this case is
Whether Don Julian had validly transferred
ownership of the subject lot during his lifetime.
The lower court ruled that he had done so
through the Supplemental Deed. The
appellate court disagreed, holding that the
Supplemental Deed is not valid, containing as
it does a prohibited preterition of Don Julian‟s
heirs from the second marriage. Petitioner
contends that the ruling of the Court of
Appeals is erroneous.
HELD: The contention of the Petitioner is well-
founded. Manresa defines preterition as the
omission of the heir in the will, either by not
naming him at all or, while mentioning him as
father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor
44
assigning to him some part of the properties. It
is the total omission of a compulsory heir in the
direct line from inheritance. It consists in the
silence of the testator with regard to a
compulsory heir, omitting him in the testament,
either by not mentioning him at all, or by not
giving him anything in the hereditary property
but without expressly disinheriting him, even if
he is mentioned in the will in the latter case. But
there is no preterition where the testator
allotted to a descendant a share less than the
legitimes, since there was no total omission of a
forced heir.
In the case at bar, Don Julian did not execute
a will since what he resorted to was a partition
intervivos of his properties, as evidenced by the
court approved Compromise Agreement. Thus,
it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in
the absence of a will depriving a legal heir of
his legitimes. Besides, there are other properties
which the heirs from the second marriage
could inherit from Don Julian upon his death. A
couple of provisions in the Compromise
Agreement are indicative of Don Julian‟s
desire along this line. Hence, the total omission
from inheritance of Don Julian‟s heirs from the
second marriage, a requirement for preterition
to exist, is hardly imaginable as it is unfounded.
Seangio v. Reyes, G.R. Nos. 140371-72,
November 27, 2006
On September 21, 1988, private respondents
filed a petition for the settlement of the
intestate estate of the late Segundo Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all
surnamed Seangio, opposed the petition and
contended among others that: Segundo left a
holographic will, dated September 20, 1995,
disinheriting one of the private respondents,
Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred
that in the event the decedent is found to hav
left a will, the intestate proceedings are to be
automatically suspended and replaced by the
proceedings for the probate of the will. A
petition for the probate of the holographic will
of Segundo was filed by petitioners. They
reiterated that the probate proceedings
should take precedence. The document that
petitioners refer to as Segundo‟s holographic
will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman:
Ako si Segundo Seangio Filipino
may asawa naninirahan sa 465-A Flores
St., Ermita, Manila at nagtataglay ng
maliwanag na pag-iisip at disposisyon
ay tahasan at hayagang inaalisan ko
ng lahat at anuman mana ang
panganay kong anak na si Alfredo
Seangio dahil siya ay nang lapastangan
sa akin at isang beses siyang nagsalita
ng masama sa harapan ko at mga
kapatid niya na si Virginia Seangio labis
kong kinasama ng loob at ssabe rin ni
Alfredo sa akin na ako nasa ibabaw
ngayon ngunit darating ang araw na
ako nasa ilaim siya at siya nasa ibabaw.
Labis kong kong ikinasama ng
loob ang pag gamit ni Alfredo ng aking
pangalan para makapangutang ng
kuwarta siya at kanya asawa na si
Merna de Los Reyes sa China Banking
Corporation na million pesos at hindi
nagbabayad ito ay nagdulot sa aking
ng malaking kahihiyan sa mga may-ari
at stockholders ng China Banking.
At ikinagalit ko pa rin ang
pagkuha ni Alfredo at ng kanyang
asawa na mga customer ng Travel
Center of the Philippines na
pinangangasiwaan ko at ng anak ko na
si Virginia.
Dito ako nagalit din kaya gayon
ayoko na bilangin si Alfredo ng anak ko
at hayanan kong inaalisan ng lahat at
anoman mana na si Alfredo at si Aflredo
Seangio ay hindi ko siya anak at hindi
siya makoha mana.
45
Private respondents moved for the dismissal of
the probate proceedings primarily on the
ground that the document purporting to be
the holographic will of Segundo does not
contain any disposition of the estate of the
deceased and thus does not meet the
definition of a will under Article 783 of the Civil
Code. According to private respondents, the
will only shows an alleged act of disinheritance
by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs
were not named nor instituted as heir, devisee
or legatee, hence, there is preterition which
would result to intestacy. Such being the case,
private respondents maintained that while
procedurally the court is called upon to rule
only on the extrinsic validity of the will, it is not
barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the
petition for probate when on the face of the
will it is clear that it contains no testamentary
disposition of the property of the decedent.
Held: With regard to the issue on preterition,
the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It
was, in the Court‟s opinion, Segundo‟s last
expression to bequeath his estate to all his
compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an heir
to the exclusion of his other compulsory heirs.
The mere mention of the name of one of the
petitioners, Virginia, in the document did not
operate to institute her as the universal heir.
Her name was included plainly as a witness to
the altercation between Segundo and his son,
Alfredo. Considering that the questioned
document is Segundo‟s holographic will, and
that the law favors testacy over intestacy, the
probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no
will shall pass either real or personal property
unless it is proved and allowed in accordance
with the rules of Court. Thus, unless the will is
probated, the right of a person to dispose of
his property may be rendered nugatory.
What are the types of Substitution of Heirs?
- Types of Substitution
A. Simple substitution (direct substitution),
which may be:
1. Vulgar – the testator may designate one
or more persons to substitute the heir or
heirs instituted in case such heir or heirs
should die before him, or should not wish, or
should be incapacitated to accept the
inheritance.
2. Brief – two or more persons may be
substituted for one
3. Compendious – one substitute for two or
more heirs.
4. Reciprocal – the instituted heirs are also
the substitutes of each other.
B. Fideicommissary (indirect substitution) –
the fiduciary or first heir instituted is
entrusted with the obligation to preserve
and to transmit to a second heir the whole
or part of the inheritance, shall be valid and
shall take effect, provided such substitution
does not go beyond one degree from the
heir originally instituted, and provided
further; that the fiduciary or first heir and the
second heir are living at the time of the
death of the testator.
What are the kinds of institution of Heirs?
1. Simple or pure -= not subject to
any condition, term or burden
2. Conditional – (Arts. 871-877,
883-884)
3. With a term - (Arts. 878, 880-
881)
4. Modal – (Arts. 882-883)
What is the rule with respect to impossible
conditions?
46
 - The impossibility may be relative or
absolute and either will result in the
deletion of the condition.
Effect if impossible condition is attached to an
obligationo or contract: Both the condition
and the obligation/contract are void (Art. 1183
NCC)
Reason: In Succession, condition is merely a
mere accessory, not a consideration because
the real consideration is the generosity or
liberality of testator. In obligations, the
consideration is no longer liberality. The
condition becomes part of the consideration
thus, the impossibility of teh concition goes into
the considertaiton of the contract.
MICIANO vs. BRIMO (50 PHIL 867)
Facts: The institution of the legatees in the will is
subject to the condition that the legatees
must respect the testator‟s will to distribute his
property not in accordance witht he lawas of
his nationality bu the laws of the Philippines.
Held: Condition is void being contrary to law
because it expressly ignores the testator‟s
national law when, according to Art. 16 NCC
such national law of the testator is the one to
govern his testamentary dispositions. Said
condition is considered not written and the
institution of the legatees is valid and effective.
IS A CONDITION NOT TO MARRY/REMARRY
VALID?
Gen. Rule: An absolute condition not to
contract a first or subsequent marriage shall be
considered as not written
Exception: If such condition has been imposed
on the widow or widowed by the deceased
spouse or by the latter‟s ascendants or
descendants.
Rationale: It might result to immoral
consequences where a person who wants to
marry but is prohibited from doing so will end
up having an adulterous relationship. Also, it
has the effect of depriving a person of his
inherent right to choose his own status.
The exception is justified by sentimental
considerations whereby the entry within the
family of a person who takes the place of the
deceased spouse in the family and in the
enjoyment fo fthe property which originated
from said deceased spouse through a
subsequent marriage wiht the surviving spouse,
is avoided.
WHAT IS A DISPOSICION CAPTATORIA?
Any disposition made upon the condition that
the heir shall make some provision in his will in
favor of the testator or of any other person
shall be void.
 The two dispositions must appear in
the will
 Void because they make
successional rights contractual
WHAT IS THE RULE WITH RESPECT TO TA
NEGATIVE POTESTATIVE CONDITION?
- If the potestative condition imposed
upon the heir is negative, or consists in
not doing or not giving somthing, the
heir acquires the right from the moment
of death but heir is just required to
furnish bond or security (Caucion
muciana) that he will not fo or not give
that which the testator prohibits.
WHAT IS MODAL INTITUION?
-this is an institution with a statement on:
1. object of the institution
2. application of the property
3. Imposition of charge
COMPARE AND CONTRAST MODE AND
CONDITION?
Similarities : In both modes and condition
(negative potestative)
1. There is a security requirement;
2. There is a forfeiture provision ina return
of principal and fruits
Differences:
47
 1. Mode does not suspend the efficacy of
the rights to the succession while a
condition suspends such efficacy
2. Mode is obligation except when it is for
the exclusive benefit of the person
concerned while a condition is never
obligatory;
3. The demandability or extinction of a
right depends on the fulfillment of the
condition whereas in a mode, the right
given is immediately demandable
although subordinate to the subsequent
fulfillment of the obligation expressed in
the testamentary disposition.
Rules of interpretation:
1. When there is doubt if it is a mode or
condition: construed as modal
following the principle that
testamentary dispositions are acts of
liberality.
2. When there is doubt as to the existence
of a modal institution: not considered as
a mode but merely as a suggestion or
discussion which the heit may or may
not follow, in keeping wit the nature of
testamentary dispositions as acts of
liberality. For a statement to be
considered as a mode, it must have
coercive or obligatory force.
RABADILLA vs. CA (JUNE 29, 2000)
In the Codicil of testatrix, Dr. Rabadilla was
instituted as a devisee of Lot No. 1392
contained the following provisions among
others:
1. Rabadilla shall have the obligation until
he dies, every year to give to Belleza
100 piculs of sugar until Belleza dies;
2. Should Rabadilla die, his heir to whom
he shall give Lot No. 1392 shall have the
obligation to still give yearly, the sugar
as specified to Belleza.
3. In the event that the lot is sold, leased,
or mortgaged, the buyer, lessee,
mortgagee shall have also the
obligation to respect and deliver yearly
sugar to Belleza. Should the command
be not respected Belleza shall
immediately seize the lot and turn it over
to the testarix near descendants.
HELD:
Not a case of simple substitution. In simple
substitutions, the second heir takes the
inheritance in default of the first heir by reason
of incapacity, predecease or renunciation. The
Codicil fo not provide that should Dr. Rebadilla
default due to predecease, incapacity or
renunciation, the testatrix‟s near descendants
would substitute him. What the Codicil
provides is that, should Dr. Jorge Rabadilla or
his heirs not fulfill the conditions imposed int he
Codicil, the property referred to shall be
seizeddddd and turned over to the testanix‟s
near descendants.
Neither is there a fideicommissary substitution.
In a fideicommissary substitution, the first heir is
strictly mandated to preserve the propert and
to transmit the same later to the second their.
Here, the instituted heir is in fact allowed under
the Codicil to alienate the property provided
the negotiation is wih the near descendants or
the sister of teh testatrix. Thus, a very important
element of a fideicommissary substitution is
lacking, the obligation clearly imposing upon
the first heir, the preservation of the property
and its transmission to the second heir. Also,
the near descendants‟ right to inherit from the
testatrix is not definite. The property will only
pass to them should Dr. Rabadilla of his heirs
not fulfill the obligation to deliver part of the
usufruct to private respondent. Moreover,
fideicommissary substitution is void if the first
heir is not related by first degree to the second
heir. In the case under scrutiny, the near
descendants are not all related to the
instituted heir, Dr. Rabadilla.
Not a conditional institution. It is clear that the
testatrix intended that the lot be inherited by
Dr. Rabadilla. It is likewise clearly worded that
the testatrix imposed an obligation on the said
instituted heir and his successors-in-interest to
deliver sugar to Belleza, during the lifetime of
the latter. However, the testatrix did not make
Dr. Rabadilla‟s inheritance and the effectivity
48
of his institution as a devisee, dependent on
the performance of the said obligation. It is
clear though that should the obligation be not
compiled wiht the property shall be turned
over to the testatrix near descendants. Since
testamentary dispositions are generally acts of
liberality an obligation imposed upon the heir
should not be considered a condition unless it
clearly appears from the Will itself that such
was the intention of the testator. In case of
doubt, the institution should be considered as
modal anot conditional.
The manner of institution of Dr. Rabadilla is
modal in nature because it imposes a charge
upon the instituted heir without, however,
affecting the efficacy of such institution. A
“mode” imposes an obligation upon the heirrrrr
or legatee but it does not affect the efficacy
of his rights to the succession. On the other
hand, in a conditional testamentary
disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to
succeed the testator. The condition suspends
but does not obligate; and the mode obligates
but does not suspend. To some extent, it is
similar to a resolutary condition.
WHAT IS LEGITIME?
 Legitime is tha 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.
WHO ARE THE COMPULSORY HEIRS?
1. Legitime children and descendents with
respect to their legitimate parets and
ascendants;
2. In default of the foregoing, legitimate
parents and ascendants with respect to
their legitimate children and
descendants;
3. The widow or widower;
4. Illegitimate children
In all cases of illegitimate children, their filiation
must be duly proved.
ILANO vs. CA (G.R. No. 104376 February 23,
1994)
In this regard, Article 287 of the Civil Code
provides that illegitimate children other than
natural in accordance wih Article 269 and
other than natural children by legal fiction are
entitled to support and such successional rights
as are granted in the Civil Code. The Civil
Code has given these rights to them because
the transgressions of social conventions
committed by the parents should not be visited
upon them. They were born wiht a social
handicap and the law should help them to
surmount the disadvantages facing them
through the misdeeds of their parents.
However, before Article 287 can be availed of,
there must be a recognition of paternity either
voluntarily or by court action. This arises from
the legal principle that an unrecognized
spurious child like a natural child has no rights
from his parents of to their estate because his
rights spring not from the filiation or blood
relationship but from his acknowledgement by
t he parent. In other words, the rights of an
illegitimate child arose not because he was the
true or rel child of his parents but because
under the law, he had been recognized or
acknowledged as such as child.
WHAT ARE THE LEGITIMES OF THE COMPULSORY
HEIRS?
Legitimate Child 2 or more legitimate
Alone – ½ children – ½
Surviving spouse –
same as the shares of
1 legitimate child
Parents Alone – ½ Illegitimate Children –
1/3
Surviving Spouse – 1/3
Surviving Spouse Legitimate parents – ½
Alone – ½, 1/3, ½ Surviving Spouse – ¼
Illegitimate Child Illegitimate Children –
alone – ½ ¼
Surviving Spouse – 1/8
Legitimate Parents – ½
1 Legitimate Child – ½ Illegitimate Parents –
Surviving Spouse – ¼ ¼
49
 Surviving Spouse – ¼
CAN THE LEGITIME BE BURDENED?
Gen. Rule: No burden, condition, charge,
encumbrance imposed upon the legitime.
Exceptions:
a. Reserva Troncal – The legitime is subject
to reservation in favor of the reservees
b. Partition – The testator may prohibit
partition of the property for a period not
exceeding 20 years even if the property
contitutes the legitime of the heirs.
WHAT IS RESERVA TRONCAL?
The process by which an ascendant
who inherits by operation of law from his
descendant whichthe latter may have
acquired by gratuitous title from another
ascendant or a brother or sister, is obliged by
law to reserve such property for the benefit of
third degree relatives who belong tot he line
from whic the property came from:
Purpose: to prevent the accidental transfer of
property/wealth from one line to another line.
WHO ARE THE PARTIES IN RESERVA TRONCAL?
1. Origin
-The person from whom the reservable
property comes from
-Either an ascendant or (half) brother or
sister of the prepositus
2. Prepositus
-Person to whom the origin transfers the
property gratuitously
-The arbiter of the reserva because the
prepositus may alienate or destroy the
property and thus prevent the existence
of the reserve
3. Reservor (Reservatario)
-Ascendant of the prepositus
- The transfer to the reservoir must be by
operatoin of law either as legitimate or
by intestatcy.
-The absolute owner of the property
subject to the resolutory condition of
existence of the 3rd degree relatives of
the prepositus upon the reservor‟s
death.
4. Reservees (Reservista)
- Belonging to the same line of the family
as that of the origin
- Related to the prepositus in the 1st, 2nd
and 3rd degrees
SIENES vs. ESPARCIA (1 SCRA 750)
The Supreme Court upheld the validity of
thte simultanous sales made by both the
reservor and the reservees to two different
buyers. The reservor may alienale the
reservable property subject to as resolutory
condition – his death- by virtue of which the
property shall be transferred to relatives of
the prepositus within the third degree
(reservees). In effect, there is a double
resolutory condition – (1) death of the
reservoir and (2) the survival of the
reservees upon the death of the reservor.
CHUA vs. CFI (78 SCRA 414)
During the intestate proceedings, the court
issued an order imposing upon the heir the
obligation of paying Standard Oil Co. the
amount of P3,971.20. Hence, it is
contended that the property in question
was not acquired gratuitously but for a
consideration, thereby departing from the
requisite that the property, in order to
reservable, must have been acquired by
gratuitous title by the prepositus.
Held: The transmission of property is
gratuitous when the recipient does not give
anything in return. In matters not when the
whether the property transmitted be or be
not subject to any prior charges, what is
essential is that the transmission is made by
the deceased himself gratuitously or by an
act of mere liberality on the part of teh
person making it, without imposing any
obligation on the part of the recipient. The
transmission of the property in question wa
by means of hereditary succession and
50
 therefore gratuitous. The obligation to pay
Standard Oil was not imposed by the
ascendant but by order of the court.
WHAT IS THE DELAYED INTESTACY THEORY?
-When the resolutory condition of the
reserva is fulfilled, the properties are
distributed to the reservees as if they are
inheriting from the prepositus at the time of
fulfillment of the condition. Since there is no
will, then the reserves inherit by virtue of
intestate succession, the descendant being
th propositus, thus the name Delayed
Intestacy.
WHAT IS DISINHERITANCE?
- The manner by which a compulsory heir
is deprived of his legitimate, for causes
expressly stated by law.
WHAT ARE THE REQUISITES FOR A VALID
DISINHERITANCE?
1. It should be embodied in a VALID
WILL
2. It must be made EXPRESSLY
3. It should be for a LEGAL CAUSE
4. It should be for a TRUE CAUSE
5. It should be for an EXISTING CAUSE
6. It should be TOTAL OR COMPLETE
7. It should be STATED IN THE WILL
8. The heir should be IDENTIFIED
9. The will must not have been
REVOKED
Grounds : Arts. 919 (child or descendant), 920
(parent or ascendant), 921 (spouse)
MANINANG vs. CA (G.R. NO. L-57848 JUNE 19,
1982)
Preterition and disinheritance are two diverse
concepts
- Preterition “consists in the omission in the
testator‟s will of the forced heirs or
anyone of them, either because they
are not mentioned therein, or though
mentioned, they are neither instituted as
heirs nor are expressly disinherited.
Disinheritance in tuen “is a testamentary
disposition depriving any compulsory
heirs of his shares in the legitimate for a
cause authorized by law. Disinheritance
is always “voluntary”, preterition upon
the other hand , is presumed to be
“involuntary”
The effects of the preterition and disinheritance
are also totally different:
..... Preterition under Article 854 of the New Civil
Code shall annul the institution of heir. This
annulment is in toto, unless in the wait there
are, in addition, testamentary dispositions in
the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same
Code, such disinheritance shall also “annul the
institution of heirs”, but only “insofar as it may
prejudice the person disinherited” which last
phrase was ommitted in the case of preterition.
Better stated yet, disinheritance the nullity is
limited to that portion of the estate of which
the disinherited heirs have been illegaly
deprived.
PECSON vs. MEDIAVILLO (G.R. No. 7890,
September 29, 1914)
Paragraph 3 of the will disinherited Rosario in
the language:
I declare that one of my daugthers, named
Teresa, now deceased, left a legitimate
daughter named Rosario Mediavillo. I also
declare that i disinherit my granddaughter, the
said Rosario Mediavillo, because she was
grossly disrespectful to me and because on
one occasion, when it was I do not remember,
she raised her hand against me. Therefore, it is
my will that the said Rosario Mediavillo shall
have no share in my property. Rosario alleges
that she was disinherited without a cause.
Disinheritance shall only take place for one of
the causes expressly fixed by law. Article 849 of
the Civil Code provides that the disinheritance
can only be effected by the testament, in
which shall be mentioned the legal grounds or
causes for such disinheritance. The rights of the
courts to inquire into the causes and whether
there was sufficient cause for the
disinheritance or not is supported by express
provisions fo the Civil Code. It appears from
51
the record that when Rosario Mediavillo was
about 14 years of age, she had received some
attentions from a young man – that she had
received a letter from him --- and that her
grandfather, Florencio Pecson, took occasion
to talk to her about the relations between her
and the said young man; that it was upon that
occasion when, it is alleged, the disobedience
and disrespect were shown to her grandfather.
The record shows that very soon after said
event she lost the use of her mental powers
and that she has never regained them, except
for very brief periods, up to the present time.
Taking into considerations her tender years,
and the fact that she very soon thereafter lost
the use of her mental faculties, the conclusion
was reached that she was probably not
responsible for the disrespect and
disobedience shown to her grandfather in the
year 1894 or 1895.
WHAT IS THE EFFECT OF RECONCILIATION IN
DISINHERITANCE?
-A subsequent reconciliation between the
offender and the offended person deprives
the latter of the right to disinherit and renders
ineffectual any disinheritance that may have
been made.
WHAT IS THE EFFECT OF INVALID
DISINHERITANCE?
-The institution of heirs shall be annulled insofar
as it may prejudice the person disinherited; but
the devises and legacies and other
testamentary dispositions shall be valid to such
extent as will not impair the legitimate.
WHAT IS THE RULE WITH RESPECT TO LEGACIES
AND DEVISES?
-Gen. Rule: Must be within the commerce of
men
- Effect of ownership as to the validity of the
legacy or devise:
a. If the testator, heir, or legatee owns
only a part of, or an interest in the
thing bequeathed – the legacy or
devise shall be understood limited to
such part or interest, unless the
testator expressly declares that he
gives the thing in its entirety.
b. If the testator does not own the thing
devised or bequeathed but the
testator erroneously believed that the
thing pertained to him – the legacy or
devised is void, but subsequent
acquisition of the thing by the testator
makes the legacy or devise effective.
c. If the testator does not own the thing
devised or bequeathed and the
testator knew that he did not own the
thing – legacy or devised is valid.
d. The thing devised or bequeathed
belonged to the legatee or devisee
at the time of the execution of the will
– legacy or devise is void.
e. The thing devised or bequeathed was
acquired by the legatee or devisee
after the execution of the will – if the
legatee or devisee acquired it
gratuitously, he can claim nothing by
virtue of the legacy or devise; but it
has been acquired by onerous title
he can demand reimbursement from
heir or the estate.
WHAT ARE THE INSTANCES WHEN A LEGACY OR
DEVISE IS CONSIDERED REVOKED BY OPERATION
OF LAW?
a. The legacy of credit of remission shall
lapse if the testator, after having
made it, should bring an action
against the debtor for the payment
of his debt;
b. If the testator transforms the thing
bequeathed ins such a manner that
it doesnot retain either the form or
the denomination it had;
c. If the testator by any title or for any
cause voluntarily alienates the thing
bequeathed or any part thereof, it
being understood that in the latter
case the legacy or devise shall be
without effect only with respect to
the part thus alienated. If after the
alienation the thing should again
belong to the testator, even if it be
by reason of nullity of the contract,
52
 the legacy or devise shall not
thereafter be valid, unless the
reacquisition shall have been
effected by virtue of the exercise of
the right of repurchase;
d. If the thing bequeathed is totally lost
during the lifetime of the testator, or
after his death without the heir‟s
fault.
IF THE ESTATE SHOULD NOT BE SUFFICIENT TO
COVER ALL THE LEGACIES OR DEVISES, HOW
SHOULD LEGACIES AND DEVISES IS SATISFIED?
-Satisfaction should be made in the following
order:
(1) Remunerators legacies or devises;
(2) Legacies or devises declared by the
testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific,
determinate thing which forms a part of the
estate;
(6) All others pro rata.
*The foregoing enumeration shall be followed if
there are no donations intervolves made by
the testator and there are no compulsory heirs.
Otherwise the reduction shall be made as
follows:
(1) Donations shall be respected as long
as the legitimate can be covered,
reducing or annulling, if necessary,
the devises or legacies made in the
will – between 2 donations, the one
with the more recent date shall be
reduced first.
(2) The reduction of the devises shall be
pro rata, without any distinction
whatever.
If the testator has directed that a
certain devise or legacy be paid in
preference to others, it shall not
suffer any reductions until the latter
have been applied in full to the
payment of the legitimate.
(3) If the devise or the legacy consists of
a usufruct or life annuity, whose
value may be considered greater
than that of the disposable portion,
the compulsory heirs may choose
between complying with the
testamentary provision and
delivering to the devisee or legatee
the part of the inheritance of which
the testator could freely dispose.
WHEN SHALL LEGAL OR INTESTATE SUCCESSION
TAKE PLACE?
Legal or intestate succession takes place:
(1) If a person dies without a will, or with a
void will, or one which has subsequently
lost its validity;
(2) When the will does not institute an heir
to, or dispose of all the property
belonging to the testator. In such case,
legal succession shall take place only
with respect to the property of which
the testator has not disposed;
(3) If the suspensive condition attached to
the institution of heir does not happen or
is not fulfilled, or if the heir dies before
the testator, or repudiates the
inheritance, there being no substitution,
and no right of accretion takes place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided
under the Civil Code.
WHO ARE THE LEGAL HEIRS?
1. Legitimate children and
descendants;
2. In the absence of legitimate children
ad descendants, legitimate parents
and ascendants;
3. Surviving spouse;
4. Illegitimate children;
5. Brothers and sisters;
6. Collateral relatives up to the 5th
degree of consanguinity;
7. State.
IF THERE IS ONLY PARTIAL INTESTACY, HOW
SHOULD THE ESTATE IS DISTRIBUTED?
53
Eg. Legacy of 20,000 estates is 100,000
 Charge legacies, etc. to the instate
shares of those given by law on
intestacy more than their respective
legitimates, without however impairing
said legitimates.
 The remainder after legacy and
legitimate of illegitimate is given, is
again given to the illegitimate because
of the intent of the law on intestacy is to
give as much as possible equal sharing
with legit ascendants.
WHAT IS THE IRON BAR RULE?
In legal succession, there is absolute separation
between legitimate family and illegitimate
family.
ARTICLE 992. An illegitimate child has no right
to inherit ab intestato from the legitmate
children and relatives of his father or mother;
nor shall such children or relatives inherit in the
same manner from the illegitimate child.
Illustration
A
B D
C
E F
G H I J
Under Art. 992, I and J cannot represent F
Under Art. 990, G and H can represent E
Hence, an illegitimate can be represented by
his children. Legitimate or illegitimate, but a
legitimate child cannot be represented by his
illegitimate children
E cannot inherit from B and A
D cannot inherit from C and vice-versa (
reciprocal prohibition )
IN THE MATTER OF THE INTESTATE ESTATE OF
CRISTINA AGUINALDO-SUNTAY; EMILIO A.M.
SUNTAY III vs. ISABEL COJUANGCO-SUNTAY
(G.R. No. 183053, JUNE 16, 2010)
On June 4, 1990, the decedent, Cristina
Aguinaldo-suntay (Cristina), Married to Dr.
Federico Suntay (Federico), died intestate. In
1979, their only son, Emilio Aguinaldo Suntay
(Emilio I), predeceased both Cristina and
Federico. At the time of her death, Cristina was
survived by her husband, Federico, and several
grandchildren, including herein petitioner
Emilio A.M. Suntay III (Emilio III) and respondent
Isabel Cojuangco-Suntay. During his lifetime,
Emillio I was married to Isabel Cojuangco, and
they begot three children, namely: herein
respondent, Isabel; Margarita; and Emilio II, all
surnamed Cojuangco-Suntay. Emilio I's
marriage to Isabel Cojuangco was
subsequently annulled. Thereafter, Emilio I had
two children out of wedlock, Emilio III and
Nenita Suntay Tanedo (Nenita), by two
different women, Concepcion Mendoza and
Isabel Santos, respectively. Despite the
illegitimate status of Emilio III, he was reared
ever since he was a mere baby, nine months
old, by the spouses Federico and Cristina and
was an acknowledged natural child of Emilio I.
Nenita is an acknowledged natural child of
Emilio I and was likewise brought up by the
spouses Federico and Cristina. Upon the death
of Cristina, Federico adopted Emilio III. During
the intestate proceeding over Cristina's estate,
Federico sought appointment as administrator
thereof. Later on, he nominated Emilio III to act
as administrator.
The Court of Appeals (CA) zeroed in on Emilio
III's status as an illegitimate child of Emilio I and,
thus, barred from representing his deceased
father in the estate of the latter's legitimate
mother, the decedent. On the whole, the CA
pronounced that Emilio III, who was merely
nominated by Federico, and which nomination
hinged upon the latter's appointment as
administrator of the decedent estate, cannot
be appointed as the administrator of the
decedent's estate for the following reasons:
The appointment of Emilio III subject to a
suspensive condition, i.e., Federico's
54
appointment as administrator of the estate, he
being the surviving spouse of Cristina, the
decedent. The death of Federico before his
appointment as administrator of Cristina's
estate rendered his nomination of Emilio III
inoperative.
As between the legitimate offspring
(respondent) and illegitimate offspring (Emilio
III) of decedent's son, Emilio I, respondent is
preferred, being the “next of kin” referred to by
Sec. 8, Rule 78 of the Rules of Court, and
entitled to share in the distribution of Cristina's
estate as an heir;
Jurisprudence has consistently held that Art.
992 of the Civil Code bars the illegitimate child
from inheriting ab intestato from the legitimate
children and relatives of his father and mother.
Thus, Emilio III, who is barred from inheriting
from his grandmother, cannot be preferred
over respondent in the administration of the
estate of their grandmother, the decedent;
and
Contrary to the RTC's finding, respondent is as
much competent as Emilio III to administer and
manage the subject estate for she possesses
none of the disqualifications specified in Sec. 1,
Rule 78 of the Rules of Court.
The pivotal issue in this case turns on who, as
between Emilio III and respondent, is better
qualified to act as administrator of the
decedent's estate.
HELD: We cannot subscribe to eh appellate
court's ruling excluding Emilio III in the
administration of the decedent's undivided
estate. Mistakenly, the CA glosses over several
undisputed facts and circumstances:
The underlying philosophy of our law on
intestate succession is to give preference to
the wishes and presumed will of the decedent,
absent a valid and effective will;
The basis for Art. 992 of the Civil Code, referred
to as the iron curtain bar rule is quite the
opposite scenario in the facts obtaining herein
for the actual relationship between Federico
and Cristina on one hand, and Emilio III, on the
other, was akin to the normal relationship of
legitimate relatives.
Emilio III was reared from infancy by decedent,
Cristina, and her husband Federico, who both
acknowledged him as their grandchild;
Federico claimed half of the properties
included in the estate of the decedent,
Cristina, as forming part of their conjugal
partnership and gains during the subsistence of
their marriage;
Cristina's properties forming part of her estate
are still commingled with that of her husband
Federico, because her share in the conjugal
partnership, albeit terminated upon her death,
remains undetermined and unliquidated; and
Emilio III is a legally adopted child of Federico,
entitled to share in the distribution of the latter's
estate as a direct heir, on degree from
Federico, not simply, representing his
deceased illegitimate father, Emilio I.
From the foregoing, it is patently clear that the
CA erred in excluding Emilio III from the
administration of the decedent's estate. As
Federico's adopted son, Emilio III's interest in
the estate of Cristina is as much apparent to
this Court as the interest therein of respondent,
considering that the CA even declared that
“under the law, [ Federico], being the surviving
spouse, would have right of succession over a
portion of the exclusive property of the
decedent, aside from his share in the conjugal
partnership.” Thus, we are puzzled why the CA
restored to a strained legal reasoning – Emilio
III's nomination was subject to a suspensive
condition and rendered inoperative by reason
of Federico's death – wholly inapplicable to
the case at bar.
Note:
Legitimate Children exclude parents, brothers
and sisters, nephews and nieces
Children (legitimate or illegitimate) concur with
surviving spouse
Illegitimate children exclude illegitimate
parents, brothers and sisters, nephews and
nieces (Art. 988 and 1003)
Parents exclude brothers and sisters, nephews
and nieces
Parents concur with surviving spouse
Surviving spouse concurs with, brothers and
sisters, nephews and nieces
55

Surviving spouse
must be legitimate (legally married)
must not be guilty party in case of legal
separation because she becomes disqualified
to inherit (Art. 1002)
Decree of legal separation is required for the
spouse to be disqualified. But if he/she gave
cause for legal separation only, this is ground
for disinheritance
Reconciliation erases the ground for
disinheritance. Also puts aside the effects of
legal separation
In testamentary succession, if the spouse is the
only survivor, the share varies if the marriage
was celebrated in articulo mortis. In legal
succession, the spouse gets the entire estate
whether or not the marriage was celebrated in
articulo mortis.
If the spouse survives with legitimate parents
and adopted child, treat the adopted child as
illegitimate. Reason: The adopted child will not
exclude legitimate parents (Del Rosario vs.
Conanan, March 30, 1977)
Collateral Relatives
neared excludes the farther
Brothers and sisters. Those in full blood inherit in
equal shared, those in the half blood inherit
half of that in the full blood.
In the collateral line, right of representation is
only up to nephews and nieces. In the direct
line, no limit
between aunts/uncles and nephews/nieces,
who are preferred? Nephews and nieces
because they come first in the order of
succession and are in the descending line
collaterals are only up to the 5th civil degree. In
the direct line, no limit.
Summary:
Nearer, excludes the farther subject to right of
representation (eg. Children vs. grandchildren)
if same degree, direct line is preferred over the
collateral line (eg. Grandchildren vs.
brothers/sisters)
If both in the direct line, descending favored
over ascending, except illegitimate
descendants (eg. Parents vs. children)
if both in collateral, descending favored over
ascending (eg. Aunts/uncles vs.
nephews/nieces)
State
succeeds in default of all heirs in the direct line
and collaterals up to the 5th civil degree
Caduciary rights: refer to the right of the estate
of the estate to claim thru escheat
proceedings the properties of descendants
who are not survived by any heirs.
Escheat proceedings: Process by which state
acquires. Rule 91 of the Rules of Court
WHAT IS ACCRETION?
is a right by virtue of which, when two or more
persons are called to the same inheritance,
devise or legacy, the part assigned to the one
who renounces or cannot receive his share or
who died before the testator, is added or
incorporated to that of his co-heirs, co-
devisees, or co- legatees.
Based on presumed will of testator that he
prefers to give certain properties to certain
individuals, rather than his own heirs.
WHAT ARE THE REQUISITES FOR ACCRETION?
Unity of object (one inheritance)
plurality of subjects (2 or more to inherit
ordinarily)
vacant portion
acceptance (of portion accruing by the
person entitled)
Example: A house and lot to X and Y
Before there can be accretion, observe the
following rule (ISRAI):
Institution
Substitution
Representation
Accretion
Intestacy
Accretion occurs both in Testamentary and
Legal Succession
WHEN IS THERE UNITY OF OBJECT?
2 or more persons called to the same
inheritance or same portion, pro-indiviso.
Meaning, undivided
56
Words ½ for each, in equal shares, though Spouse
designate aliquot parts, do no exclude right of
accretion as long as the specific part is not Parents alone – ALL Illegitim
identified as to make each heir the exclusive Survivin
owner of a determinate property ( Art. 1017). Surviving Spouse along – ALL Legitim
Same if ¼ to A ¾ B. Survivin
Eg. ½ to A and same to B in my lot in Ma-a. But
Illegitimate Child alone – ALL Illegitim
if the north to B and south to A, no accretion.
Survivin
Money or fungible goods. Share must not be
Legitim
earmarked. Eg. My cash in my vault, to A, B,
and C. But if my cash in Metro Bank to A, in 1 Legitimate Child – ½ Illegitim
UCPD to B, no accretion Surviving Spouse – ½ Survivin
Illegitimate Children – ½ Survivin
WHERE IS THERE VACANCY? Legitimate Parents – ½ Brother
Testamentary/ Succession
Vacant caused by:
Note: In legal succession, if only 2 classes of
predecease
concurring heirs survive, divide the estate by 2.
incapacity
Each class shall receive ½.
repudiation (share always accrues to the
others Art. 1018)
WHAT IS THE RIGHT OF REPRESENTATION?
if suspensive conditions is not fulfilled
Representation is a right created by fiction of
failure to identify one particular heir
law, by virtue of which the representative is
(ineffectiveness of institution)
rasied to the place and the degree of the
among compulsory heirs, accretion takes
person represented, and acquires the rights
place only on free portion. If part repudiated is
which the latter would have if he were living or
legitime, co-heirs inherit in own right, not by
if he could have inherited.
accretion (Art. 1021)
The right of representation takes place in the
direct descending line, but never in the
Legal Succession
ascending. In the collateral line, it take place
Vacancy caused by:
only in favor of the children of brothers or sisters
Repudiation (share always accrues to the
(nephews and nieces), whether they be of the
other Art. 1018)
full or half blood.
Incapacity (subject to representation)
When children of one or more brothers and
Predecease no accretion because there is
sisters of the deceased survive, they shall inherit
really no vacant portion and survivors inherit in
from the latter by representation (per stirpes), if
their own right or by representation. But effect
they survive with their uncles or aunts. But if
is the same.
they alone survive, they shall inherit in equal
Eg. T died without will but one of his 3 children
portions (per capita).
renounced his inheritance. Share shall accrue
In case of grandchildren of the decedent, they
to the 2 children.
always inherit by right of representation (per
stirpes) even if all the children of the decedent
HOW MUCH SHALL ACCRUE TO THE CO-HEIRS
are deceased.
IN ACCRETION?
Heirs who repudiate their share may not be
In the same proportion that the heirs inherit
represented.
(Art. 1019)
Can an adopted child represent? No.
WHAT LAW GOVERNS CAPACITY TO SUCCEED?
WHAT ARE THE INTESTATE SHARES OF THE LEGAL
Capacity to succeed is governed by the law
HEIRS?
of the nation of the decedent. (Art. 1039)
Legitimate Child alone – ALL 2 or So
more Legitimate
in addition to Children Surviving
Art. 16, the following are

57
governed by the national law of decedent.
1. order of succession
2. amount of successional rights
3. instrinsic validity if testamentary provision
4. capacity to succeed
WHO ARE CAPACITATED TO SUCCEED?
Judicial persons inherit only by will
the state inherits by will or by intestacy
insane persons, though incapacitated, to enter
into contracts or make wills, are capacitated
to inherit.
In order to be capacitated to inherit, the heir,
devisee, or legatee must be living at the
moment the succession opens, except in case
of representation, when it is proper.
“living” includes those conceived at time of
death of decedent but follow Art. 41, Civil
Code – considered born if alive at time of
complete delivery. If intra-uterine life is less
than 7 months, must not die within 24 hours
from complete delivery.
Right or representation is not an exception
because even the representative must already
be alive or at least conceived at time of death
of testator.
WHAT ARE THE KINDS OF INCAPACITY?
Absolute – cannot inherit from anybody under
any circumstance
2 classes:
Art. 1026, last paragraph. “All other
corporations or entitles may succeed under a
will, unless there is a provision to the contrary in
their charter of the laws of their creation, and
always subject to the same.”
Art. 1027 (6) individuals, associations and
corporations not permitted by law to inherit
Those who lack juridical personality (abortive
infants)
Relative – cannot inherit only from certain
persons or certain properties but can inherit
from other persons or certain properties
3 classes of relative incapacity:
by reason of possible undue influence (art.
1027 [1 – 5])
by reason of public policy and morality (art.
1028)
by reason of unworthiness (art. 1032)
INCAPACITY BY REASON OF POSSIBLE UNDUE
INFLUENCE
ARTICLE 1027. The following are
incapable of succeeding:
The priest who heard, the confession of the
testator during his last illness, or the minister of
the gospel who extended spiritual aid to him
during the same period;
Reasons: to safeguard the rights of the heirs
who may be defrauded by the sinister and
undue influence which may be exercised by
some priests or ministers over a dying man
Will must be made DURING last illness for it is
there that undue influence could have been
exercised. Not BEFORE because undue
influence does not yet exist NOR AFTER
because no longer subject to undue influence.
Will must be made AFTER confession, not
BEFORE because before confession, no undue
influence yet.
Hence, during last illness and after confession.
Confession need not be the last, Eg. Very sick
man. Priests may say during confession, you will
soon die from your illness. If you will not give not
give to me, you will go to hell.”
Last illness is one of which the testator died, OR
the one immediately preceding it (like died of
accident)
Note: If the testator did not die from last illness,
but from other causes, the death must
immediately follow confession during last illness
such that testator had no opportunity to
revoke the will. Thus if testator became ill in
1990 and confessed then made a will in 1990
making priest a heir, then gets well in 1991 and
did not become ill since then and
subsequently died in an accident in 2003,
there is sufficient opportunity to revoke.
Nature of last illness, great possibility of death,
regardless of whether chronic or acute, long or
short.
Disqualification does not extend to:
1. Legitime (only free portion)
2. Intestacy (no undue influence)
3. Dispositions which do not extend
testamentary benefit (eg. Appointment as
executor)
Priest must hear confession, one who extends
spiritual aid is not disqualified
Minister who extends spiritual aid disqualified.
58

The relatives of such priest or minister of the
gospel within the 4th degree, the church, order,
chapter, community, organization, or institution
to which such priest or minister may belong.
A guardian with respect to testamentary
dispositions given by a ward in his favor before
the final accounts of the guardianship have
been approved, even if the testator should die
after the approval thereof, nevertheless, any
provision made by the ward in favor of the
guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be
valid.
Guardian of person or property
As long as final account is not yet approved,
cannot be made heir, legatee or devisee even
if at time of death testator, account is already
approved. Illustrate.
If after approval of final accounts, guardian
can already be voluntary heir, legatee or
devisee.
Final accounts – given to the court when
guardianship is removed, or when he resigns,
or when no need for guardianship to continue.
If guardian is the spouse, ascendant,
descendant, brother or sister, the provision is
valid. Hence, if guardian is 1st cousin, nephews,
nieces, etc. - VOID. Reason: Affection, not
influence is the underlying reason.
Unlike the priest, the relatives of the guardian
are not disqualified.
Any attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, spouse, parents,
or children.
Related to Art. 823
If there are 3 other witnesses, the witness is
qualified to inherit (Art, 823)
Notary public not disqualified to inherit.
(5). Any physician, surgeon, nurse, health
officer or druggist who took care of the testator
during his last illness.
Will must be made during last illness and after
care had commenced
Tock care – continuing or regular, not isolated
If physician or nurse etc. relative, still
disqualified because the law is silent unlike
case of guardian. BUT can still get their children
legitime and qualified to inherit by intestacy.
In Art. 1027, there is CONCLUSIVE PRESUMPTION
that there was undue influence. Cannot prove
otherwise.
INCAPACITY BY REASON OF PUBLIC POLICY
AND MORALITY.
ARTICLE 1028. The prohibitions mentioned in
article 739, concerning donations inter vivos
shall apply to testamentary provisions.
Art. 739
Testator and recipient guilty of adultery or
concubinage – guilt may be proved by
preponderance of evidence. No need from
criminal conviction.
Between persons found guilty of the same
criminal offense, in consideration thereof.
Made to public officer of his wife,
descendants, ascendants, by reason of his
office.
INCAPACITY BY REASON OF UNWORTHINESS
(Art. 1032)
ARTICLE 1023. The following are incapable of
succeeding by reason of unworthiness:
Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue.
Any person who has been convicted of an
attempt against the life of the testator, his or
her spouse, descendants, or ascendants.
If attempted to kill testator's father after
testator's death, not disqualified because
capacity to succeed is measured at time of
decedent's death (Art. 1034)
Any person who has accused the testator of a
crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless.
Any heir of full age who, having knowledge of
the violent death of the testator, should fail to
report it to an officer of the law within a month,
unless the authorities have already taken
action; this prohibition shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation.
Full age – 21 years old
knowledge of VIOLENT DEATH – caused by
crime
59
there is obligation to make accusation: Under
Spanish Law page 561 Paras, certain persons
are exempted from making accusations. In
Phils, no one is obliged to make accusations.
Any person convicted of adultery or
concubinage with the spouse of the testator.
Spouse guilty him/herself is not incapacitated
but ground for disinheritance (given cause for
legal separation)
if decree of legal separation is granted, guilty
spouse becomes disqualified to inherit.
Any person who by fraud, violence,
intimidation, or undue influence should cause
the testator to make a will or to change or
already made.
Any person who by the same means prevents
another from making will, or from revoking one
already made, or who supplants, conceals, or
alters the latter's will;
Any person who falsifies or forges a supposed
will of the decedent.
Art. 1032 applies both to testate and intestate
succession
Compulsory heir who is incapacitated loses all
(legitime and free portion)
But again, can be represented
Condonation
If the testator already knew the cause of
unworthiness at the time of will-making, the
mere fact of institution or giving legacy or
devise is an IMPLIED CONDONATION.
- knowledge at time of will making is not
enough. Testator must give something in the
will to the disqualified heir in order that there
may be condonation.
- the will made must be valid or not revoked in
order that there may be implied condonation.
If knowledge comes only after execution of
will, condonation must be writing – EXPRESS
REVOCATION.
- express revocation is irrevocable unless there
is vitiated consent.
What if there is subsequent reconciliation?
Under Art. 922; reconciliation renders
disinheritance ineffective. How about the
incapacity? Should there still be condonation
in writing? NO. When cause for unworthiness is
made the ground for disinheritance, Art. 922
applies. Reconciliation is enough. When there
is no disinheritance. Art. 1033 applies.
In Testamentary Succession, the incapacitated
covers the entire intestate share of the
incapacitated heir.
In Legal Succession, the right of representation
covers the entire intestate share of the
incapacitated her.
Like in disinheritance, the excluded person shall
not enjoy the usufruct and administration of
the inherited property of his/her children.
Prescriptive periods
Prescriptive period for declaration of
incapacity – 5 years from time the disqualified
took possession (Art. 1040)
Prescriptive period for recovery of inheritance –
5 years from time the disqualified took
possession (Art. 1040)
Who can bring action – those interested in the
succession. (Art. 1040)
WHAT IS ACCEPTANCE?
Acceptance – the act by which a person
called to succeed to the inheritance of a
decedent, either by will or by law, manifests his
assent to the receipt of the property, rights,
and obligations which are transmitted to him
thru death of said decedent.
WHAT IS REPUDIATION?
Repudiation – the act by which a person
called to succeed to said inheritance,
manifests his unwillingness to succeed to the
same.
Nature of acceptance and Repudiation
1. Rights may be waived provided only
that such waiver is not contrary to law,
public order, public policy, moral, good
customs, or prejudicial to the rights of a
3rd person. (Art. 6)
2. No person can be forced to accept the
generosity of another. Thus,
acceptance is required.
3. Voluntary and free acts. Presence of
vitiated consent will render them
without effect.
4. Both are subsequent to death of
decedent but their effects retroact to
60
 the moment of death. (Art. 1042) , institutions order ves with
5. Once made, are irrevocable. and entities made in court
6. It is more usual to accept then to reject (Art. 1046) Art.1030 approval
an advantage or benefit. Hence,
acceptance may be express or tacit or
presumed. (art. 1049). Repudiation
being an act of disposition, requires D. Public
greater capacity and more formalities Lawful
Official
than acceptance. Establishme representati
7. There can be partial acceptance and nts ves may Must be
partial repudiation (Arts. 954 and 955 – accept in with
accept onerous and repudiate behalf of approval
gratuitous or if both onerous and governmen
gratuitous, accept and reject both or
E. Married t
either.
Woman
8. Repudiation of hereditary rights
partakes the nature of donation.
9. Acceptance of inheritance does not
make the heir personally liable for the Must be Herself
debts and obligations of decedent. ( with even
art. 774). approval of without
F. Deaf mutes
governmen husbands
Heir Acceptanc Repudiatio who can
t consent
e n read and
write

A. Minors May be Parents or Accept on Personality

represente guardians her own or by an
d by with judicial agent
parents or approval
guardians

(Art. 1044)
No one Personally
B. Those left to
or through
the poor
an agent
Must be
accepted
by the  Creditors may also accept in behalf of
persons heirs under Article 1052. If the heir
designated repudiates the inheritance to the
by the prejudice of his own creditors, the latter
testator or may petition the court to authorize
in their them to accept it in the name of the
C. Corporatio default heir.
Lawful
ns, follow the  The creditors must be prejudiced. If the
associations representati
heir concerned still has his own

61
 properties, the creditors must go after
the property of the heir, they cannot
accept in behalf of heir.
HOW IS ACCEPTANCE MADE?
(A) Express Acceptance- must be in a
public or privates document. Cannot be
verbal (Art.1049)
(B) Tracit- results from acts by which the
intention to accept is necessarily implied
or which one would have no right to do
except in the capacity of an heir. (Art.
1049)
Example of Tracit Acceptance:
ARTICLE 1050. An inheritance is cleemed
accepted:
1. If the heirs sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them;
2. If the heir renounces the same, even
though gratuitiously, for the benefit of
one or more of his co-heirs not all-
hence, renunciation may be onerous or
gratuitous. An act of disposition
because one or more of the co-heirs
acquire a benefit or advantage which
would not have accrued to them in the
case of true renunciation.
3. If he renounces it for a price in favor of
all his co-heirs indiscriminately but if this
renunciation should be gratuitious, and
the co-heirs in whose favor is made are
those upon whom the portion
renounced should devolve by virtue of
accretion, the inheritance shall not be
deemed as accepted.
“co-heirs”- meaning in intestacy,
substitution or accretion
-if gratuitous , renunciation must not be
made in favor of the ones who will
inherit by accretion (or substitution) of
the portion renounced.
(C) Presumed- if heir, devisee or legatee
does not accept pr repudiate within 30
days after the court has issued an order
for the distribution of the estate (Art.
1057)
BUT: Acts of mere conservation or
provisional administration do not constitute
acceptance ( Art. 1049, last paragraph:
Acts of mere preservation or provisional
administration do not imply an acceptance
of the inheritance if, through such acts, the
title r capacity of an heirs has not been
assumed.)
HOW IS REPUDIATION MADE?
1. Public or authentic instrument
*public document-act acknowledge
before notary public, or person authorized
to administer oath
*authentic document- genuine document
not forged or falsified. May be private.
2. by petition presented to the court
having jurisdiction over the testamentary or
intestate proceedings.
WHAT ARE THE EFFECTS OF REPUDIATION?
1. If both a testamentary heir and intestate
heir to the same inheritance,
repudiation as testamentary heir is
deemed to include also repudiation as
intestate heir. Reason: Having
repudiated the express will, it is
understood that he also repudiates the
presumed will;
2. If repudiates as a intestate heir, may still
accept as testamentary heir provided
that at time of repudiation, he did not
62
 know if his institution as testamentary
heir. Reason: may not want to refuse the
express wishes of testator.
Imperial vs. CA, [G.R. No. 112483. October
8,1999
Leoncio sold his land title to his natural son,
petitioner but it was alleged that the sale was
in fact a donation. 2 years after the donation,
Leoncio filed a complaint for annulment of the
said Deed of Absolute Sale on the ground that
he was deceived into signing the said
document. The dispute, however, was resolved
through a compromise agreement. Pending
execution of the above judgment, Leoncio
died, leaving only two heirs- his natural son,
and an adopted son, Victor Imperial. In 1962,
Victor was substituted in place of Leoncio in
the above mentioned case, and it was he who
moved for execution of judgment. Fifteen
years thereafter, Victor died single and without
issue, survived only by his natural father,
Ricardo. Four years after, Ricardo died,
leaving as his only heirs his two children, Cesar
and Teresa. Cesar and Teresa filed a complaint
for “ Annulment of Documents, Reconveyance
and Recovery of Possession” seeking the
nullification of the Deed of Absolute Sale
alleging that the conveyance of said property
impaired the legitimate of Victor Imperial, their
natural brother and predecessor-in-interest. As
argues by petitioner, when Leoncio died, it was
only Victor who has entitled to question the
donation. However, instead of filing an action
to contest the donation, Victor asked to be
substituted as plaintiff in Civil Case No. 1177
and even moved for execution of the
compromise judgment therein. Thus, Victor was
deemed to have renounced his legitime.
HELD: No renunciation of legitime may be
presumed from the foregoing acts. It must be
remembered that at the time of the
substitution, the judgment approving the
compromise agreement has already been
rendered. Victor merely participated in the
execution of the comprise judgment. He was
not a party to the compromise agreement.
More importantly, our law on succession does
not countenance tacit repudiation of
inheritance. Rather, it requires an express act
on the part of the heir. Thus, when Victor
substituted Leoncio in Civil Case No. 1177 upin
the latter‟s death; his act of moving for
execution of the compromise judgment
cannot be considered an act of moving for
execution of the compromise judgment
cannot be considered an act of renunciation
of his legitime. He was, therefore, not
precluded or stopped from subsequently
seeking the reduction of the donation, under
Article 772. Nor are Victor‟s heirs, upon his
death, precluded from doing so, as their right
to do so is expressly recognized under Article
772, and also in Article 1053. If the heir should
die without having accepted or repudiated
the inheritance, his right shall be transmitted to
his heirs. The ten year prescriptive period
applies to the obligation to reduce inofficious
donations, compulsory heirs under Article 771
of the Civil Code, to the extent that they impair
the legitimate of compulsory heirs. The cause
of action to enforce legitimate accrues upon
the death of the donor-decedent. Clearly so,
since it is only then that the net estate may be
ascertained and on which basis, the legitimes
may be determined.
WHAT IS COLLATION?
 Question of collation arises only if there
are donations inter vivos made by the
dececent abd there are compulsory
heirs surviving.
 3 concepts of Collation:
1. Mathematics Process- the imaginary
addition or fictitious reunion of
63
 property donated by the testator
inter vivos with the properties left at
the time of his death.
2. Imputation- donation inter vivos
made to compulsory heirs are
considered as advances to their
legitimes.
3. Actual Reduction or Abatement-
actual reduction or bringing back of
that property donated by the
testator during his lifetime to the
hereditary estate if the donations are
found to be inofficious.
ARE DONATION TO STRANGERS SUBJECT TO
COLLATION?
CASE:
Vda. De Tupas, vs RTC of Negros Occidental
(October 3, 1986)
Tupas Foundation, Inc. being a stranger and
not a compulsory heir, the donation inter vivos
made in its favor was not subject to collation.
HELD: A person‟s prerogative to make
decisions is subject to certain limitations, one of
which is that he cannot give by donations
more than he can give by will. If he does, so
much of what is donated as exceeds what he
can give by will is deemed inofficious and the
donation is reducible to the extent of such
excess, though without prejudice to its taking
effect in the donor‟s lifetime or the donee‟s
appropriating the fruits of the thing donated.
Such a donation is, moreover collationable,
that is, its value is in imputable into the
hereditary estate of the donor at the time of his
death for the purpose of determining the
legitime of the forced compulsory heirs and
the freely disposable portion of the estate. This
is true as well of donations to strangers as of
gifts to compulsory heirs, although the
language of Article 1061 of the Civil Code
would seem to limit collation to the latter class
of donations. Collationable gifts should include
gifts made not only in favor of the forced heirs,
but even those made on favor of strangers, so
that in computing the legitimes, the value of
the property donated should be considered
part of the donor‟s estate.
The fact that the donated property no longer
actually formed part of the estate of the donor
at the time of his death cannot be asserted to
prevent its being brought to collation. Collation
contemplates and particularly applies to gifts
inter vivos. The further fact that the lots
donated were admittedly capital or separate
property of the donor is of no moment,
because a claim of inofficiousness does not
assert that the donor gave what was not his,
but that he gave more than what was within
his power to give. In order to find out whether
a donation is inofficious or not, the rules are:
1. Determination of the value of the
property which remains at the time of
the testator‟s death;
2. Determination of the obligations, debts,
and charges which have to be paid out
or deducted from the value of the
property thus left;
3. The determination of the difference
between the assets and the liabilities,
giving rise to the hereditary estate;
4. The addition to the net values thus
found, of the value at the time they
were made, of donations subject to
collation; and
5. The determination of the amount of the
legitimes by getting from the total thus
found the portion that the law provides
as the legitime of each respective
compulsory heir. Deducting the
legitimes from the net value of the
hereditary estate leaves freely
disposable portion by which the
64
 donation in question here must be
measured. If the value of the donation
at the time it was made does not
exceed that difference, then it must be
allowd to stand. But is it does, the
donation is inofficious a the excess and
must be reduced by the amount of said
excess. In this case, if any excess be
shown, it shall be returned or reverted to
the sole compulsory heir if the
deceased Epifano R. Tupas.
IS AN IRREVOCABLE DONATION SUBJECT TO
COLLATION?
CASE:
Buhay De Roma vs. CA (July 23,1987)
There is nothing in the above provisions
expressly prohibiting the collation of the
donated properties. As the said court correctly
observed, the phrase “sa pamamagitan ng
pagbibigay na din a mababawing muli”
merely described the donation as
“irrevocable‟ and should not be construed as
an express prohibition against collation. The
fact that a donation is irrevocable does not
necessarily exempt the subject thereof from
the collation required under Article 1061. The
intention to exempt from collation should be
expressed plainly and unequivocally as an
exception to the general rule announced in
Article 1062. The suggestion that there was an
implied prohibition because the properties
donated were imputable to the free portion of
the decedent‟s estate merits little
consideration. Imputation is not the question
here, nor is it claimed that the disputed
donations is officious. The sole issue is whether
or not there was an express prohibition to
collate, and there was none.
WHAT IS PARTITION?
- Partition, in general, is the
separation, division and assignment
of a thing held in common among
those whom it may belong. The thing
itself may be divided, or its value.
CAN PARTITION BE MADE DURING THE LIFETIME
OF THE DECEDENT?
CASE:
Zaragoza vs CA (341 SCRA 309, September
29,2000)
It is basic in the law of succession that a
partition inter vivos may be done for as long as
legitimes are not prejudiced. Art. 1080 of the
Civil Code is clear on this. The legitime of
compulsory heirs is determined after collation
as provided for in Article 1061. Unfortunately,
collation cannot be done in this case where
the originl petition for delivery of inheritance
share only impleaded one of the other
compulsory heirs. The petition must therefore
be dismissed without prejudice to the institution
of a new proceeding where all the
indispensable parties are present for the rightful
determination of their respective legitime and
if the legitimes were prejudiced by the
partitioning inter vivos.
WHAT ARE THE REQUISITES FOR AN
EXTRAJUDICIAL PARTITION?
Case:
Heirs of Joaquin Teves vs. CA (316 SCRA 632)
The extrajudicial settlements executed by the
heirs of Joaquin Teves and Marcelina
Cimafranca are legally valid and binding. The
extrajudicial settlement of a decedent‟s estate
is authorized by section 1 of Rule of Court. For a
partition pursuant to section 1 of Rule 74 to be
valid, the following conditions must concur: 1.
The decedent left no will; 2. The decedent left
65
no debts , or if there were debts left all had
been paid; 3.the heirs are all of age, or if they
are minors, the latter are represented by their
judicial guardian or legal representatives; 4.
The partition was made by means of a public
instrument or affidavit duly filed with the
Registrars of Deeds.
Although Cresenciano, Ricardo‟s predecessor-
in-interest, was not a signatory to the
extrajudicial settlements, the parttion of Lot769-
A among the heirs was made in accordance
with their intestate shares under the law. The
extrajudicial settlements covering Lot769-A
were necer registered. However, in the case of
Vda. De Reyes vs cA, 35 the Court, interpreting
section 1 of Rule 74 of the rules of court, upheld
the validity of an oral partition of the
decedent‟s estate declared that the non-
registration of an extrajudicial settlement does
not affect its intrinsic validity when there are no
creditors or the rights of creditors are not
affected.
IS AN ORAL PARTITION VALID?
Cases:
Pada-Kilario vs CA (G.R. No.13429, January
19,2000)
The extrajudicial partition of the estate of
Jacinto Pada among his heirs made in 1951 is
valid, albeit executed in an unregistered
private document. No law requires partition
among heirs to be in writing and be registered
in order to be valid. The requirement in Sec.1,
Rule 74 of the Revised rules of Court that a
partition be put in a public document and
registered, has for its purpose the protection of
creditors and the heirs their selves against tardy
claims. The object of registration is to serve as
constructive notice to others. It follows then
that the intrinsic validity of partition not
executed with the prescribed formalities is not
undermined when no creditors are involved.
Without creditors to take into consideration, it is
competent for the heirs of an estate to enter
into an agreement for distribution thereof in a
manner and upon a plan different from those
provided by the rules from which, in the first
place, nothing can be inferred that a writing or
other formality is essential for the partition to be
valid. The partition of inherited property need
not be embodied in a public document so as
to be effective as regards to heirs that
participated therein. The requirement of Article
1358 of the Civil Code that acts which have for
their object the creation, transmission,
modification or extinguishment of real rights
over immovable property, must appear in a
public instrument, is only for the convenience,
non-compliance with which does not affect
the validity or enforceability of the acts of the
parties as among themselves.
And neither does the Statute of Frauds under
Article 1403 of the New Civil Code apply
because partition among heirs is not legally
deemed a conveyance of real property,
considering that it involves not a transfer of
property from one to the other but rather,
confirmation or ratification of title or right of
property that an heir is renouncing in favor of
another heir who accepts and receives the
inheritance.
Crucillo vs. IAC (317 SCRA 351)
It can be gleaned unerringly that the heirs of
Balbino A. Crucillo agreed to orally partition
subject estate among themselves, as evinced
by their possession of the inherited premises,
their construction of improvements thereon,
and their having declared in their names for
taxation purposes their respective shares. These
are indications that the heirs of Balbino A.
Crucillo agreed to divide subject estate
among themselves, for why should they
66
construct improvements thereon, pay the
taxes therefor, and exercise other acts of
ownership, if they did not firmly believe that the
property was theirs. It is certainly foolhardy for
petitioners to claim that no oral partition was
made when their acts showed otherwise.
Moreover, it I unbelievable that the possession
of the heirs was by mere tolerance judging
from the introduction of improvements thereon
and the length of time that such improvements
have been in existence. Then too, after
exercising acts of ownership over their
respective portions of the contested estate,
petitioners are stopped from denying or
contesting the existence of an oral partition.
The oral agreement for the petitioner of the
property owned in common is valid, binding
and enforceable on the parties.
WHEN CAN PARTITION BE DEMANDED?
Case:
Santos vs. Santos ( October 12,2000)
Prescription, as a mode of terminating a
relation of co-ownership, must have been
preceded by repudiation (of the co-
ownership). The act of repudiation in turn is
subject to certain conditions: 1. A co-owner
repudiates the co-ownership; 2. Such an act of
repudiation is clearly made known to the other
co-owners; 3. The evidence thereon is clear
and conclusive; and 4. He has been in
possession through open continuous, exclusive
and notorious possession of the property for
the period required by law.
There was no showing that Eliseo Santos had
complied with these requisites. The SC was not
convinced that Eliseo had repudiated the co-
ownership, and even if he did, there was no
showing that the same had been clearly made
known to Ladislao. Under Article 1119 of the
New Civil Code, acts of possessory character
executed in virtue of license or tolerance of
the owners shall not be available for the
purpose of possession.
Indeed, Filipino family ties being close and
well-knit as they are, and considering that
Virgilio Santos was the ward of Isidra Santos
ever since when Virgilio Santos was still an
infant, it was but natural that the Appellant did
not interpose any objection to the continued
stay of Virgilio Santos and his family on the
property and even acquiesced thereto.
Appellant must have assumed too, that his
brother, the Appellee Eliseo Santos, allowed his
son to occupy the property and use the same
for the time being. Hence, such possession by
Virgilio Santos and Philip Santos of the property
did not constitute repudiation of the co-
ownership by the Appellee Eliseo Santos and of
his privies for that matter. Penultimately, the
action for partition is not barred by laches. An
action to demand partition is imprescriptive or
cannot be barred by laches. Each co-owner
may demand at any time the partition of the
common property.
WHAT IS TE EFECT OF INCLUSION OF A NON-
HEIR IN THE PARTITION?
Cases:
Aznar Brothers Real Property Company vs. CA
(March 7, 2000)
In the instant cases, private respondents have
set up the defense of ownership and
questioned the title of AZNAR to the subject lot,
alleging that the Extrajudicial Partition with
Deed of absolute Sale upon which petitioner
bases its title is null and void for being
simulated and fraudulently made.
First, private respondents claim that not all the
known heirs of Crisanta Maloloy-on
participated in the extrajudicial partition, and
67
the two persons who participated and were
made parties there were not heirs of Crisanta.
This claim even if true would not warrant
rescission of the deed. Under Article 1104 of
the Civil Code, “[a] partition made with
preterition of any of the compulsory heirs shall
not be rescinded, unless it be proved that
there was a bad faith or fraud on the art of the
persons interested, but the latter shall be
proportionately obliged to pay to the person
omitted the share which belongs to him.” In
the present case, no evidence of bad faith or
fraud is extant from the records. As to the two
parties to the deed who were allegedly not
heirs, Article 1105 is in point; it provides: “ A
partition which includes a person believed to
be an heir, but who is not, shall be void only
with respect to such person.” In other words,
the participation of non-heirs does not render
the partition void in its entirely but only to the
extent corresponding to them. The extrajudicial
Partition with Deed of Absolute Sale is a
notarized document. As such, it has in its favor
the presumption of regularity and it carries the
evidentiary weight conferred upon it with
respect to its due execution. It is admissible in
evidence without further proof of authenticity
and is entitled to full faith and credit upon its
face. He who denies its due execution has the
burden of proving that contrary to the recital in
the Acknowledgement he never appeared
before the notary public and acknowledge
the deed to be his voluntary act. Whoever
alleges forgery has the burden of proving the
same. Forgery cannot be presumed but should
be proved by clear and convincing evidence.
Private respondents failed to discharge this
burden of proof; hence, the presumption in
favor of the questioned deed stands.
WHAT IS THE EFFECT OF EXTRAJUDICIAL
PARTITION PEBDING PROBATE?
Case:
Union Bank of the Philippines vs. Santibanez
(G.R No. 149926. February 23,2005)
It must be stressed that the probate
proceeding had already acquired jurisdiction
over all the properties of the deceased,
including the three (3) factors. To dispose of
them in any way without probate court‟s
approval is tantamount to divesting it with
jurisdiction which the Court cannot allow.
Every act intended to put an end to division
among co-heirs and legatees or, or any other
transactions. Thus, devisee is deemed to be a
partition, although it should purport to be a
sale, an exchange, a compromise, or any
other transactions. Thus, in executing any point
agreement which appears to be in the nature
of an extra-judicial partition, as in the case at
bar, court approval is imperative, and the heirs
cannot just divest the court of its jurisdiction
over the part of the estate. Moreover, it is
within the jurisdiction of the probate court to
determine the identity of the heirs of the
decedent. In the instant case, there is no
showing that the signatories in the joint
agreement are the only heirs of the decedent.
When it was executed, the probate of the will
was still pending before the court and the
latter had yet to determine who the heirs of
the decedent were. Thus, for Edmund and
respondent Florence S. Ariola to adjudicate
unto themselves the three (3) tractors was a
premature act, and prejudicial to the other
possible heirs and creditors who may be a
valid claim against the estate of the
deceased.
WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF
REDEMPTION IN CASE HEREDITARY RIGHTS ARE
SOLD PRIOR TO PARTITION?
Cases:
Garcia vs. Calaliman, (April 17,1989)
68
The respondents claim that the 30-day period
prescribed in Article 1088 of the New Civil
Code for petitioners to exercise the right to
legal redemption had already elapsed at the
time and that the requirement of Article 1088
of the New civil Code that notice must be in
writing is deemed satisfied because when
notice would be superficious the purpose of
the law having been fully served when
petitioner Francisco Garcia went to the Office
of the Registrars of Deeds and saw for himself,
read and understood the contents of the
deeds of sale.
HELD: the issue has been squarely settled in the
case of Castillo v. Samonte where the SC
observed: “ Both the letter and spirit of the
New Civil Code argue against any attempt to
widen the scope of the notice specified in
Article 1088 by including therein any other kind
of notice, such as verbal or by registration. If
the intention of the law had been to include
verbal notice or any other means of
information as sufficient to give the effect of
this notice, then there would have been no
necessity or reasons to specify in Article 1088 of
the New Civil Code that the said notice be
made in writing for, under the old law, a verbal
notice or information was sufficient.” In the
interpretation of a related provision (Article
1623 of the New Civil Code) written notice is
indispensable, actual knowledge of the sale
acquired in some other manners by the
redemptioner, notwithstanding. He or she is still
entitled to written notice, as exacted by the
code, to remove all uncertainty as to the sale,
its terms and validity, and to quiet any doubt
that the alienation is not definitive. The la not
having provided for any alternative, the
method of notifications remains exclusive
though the Codes do not prescribe any
particular form or written notice nor any
distinctive method notification of redemption.
Baylon vs. Amador (G.R. No. 160701. February
9,2004)
The requirement of a written notice is
mandatory. This Court has long established the
rule that the notwithstanding actual
knowledge of a co-owner, the latter is still
entitled to a written notice from the selling co-
owner in order to remove all uncertainties
about the sale, its terms and conditions as well
as its efficacy and status.
Private respondent was never given such
written notice. He thus still has the right to
redeem said one-third portion of the subject
property. On account of the lack of written
notice of the sale by the other co-heirs, the 30-
day period never commended.
Exception:
Actual knowledge was considered an
equivalent to a written notice of sale because
the right of legal redemption was involved
more than thirteen years after the sales were
concluded.
Primary Structures Corp. vs. Sps. Valencia (G.R.
No. 150060. August 19,2003)
The thirty day period of redemption had yet to
commence when private respondent Rosales
sought to exercise the right of redemption on
31 March 1987, a day after she discovered the
sales from the Office of the City Treasurer of
Butuan City, or when the case was initiated, on
16 October 1987, before the trial court. The
written notice of sale is mandatory. This Court
has long established the rule that
notwithstanding actual knowledge of a co-
owner, the latter is still entitled to a written
notice from the selling co-owner in order to
remove all uncertainties about the sale, its
terms and conditions, as well as its efficacy
and status. Even in Alonzo vs. Intermediate
69
Appellate Court (150 SCRA 259) relied upon by
petitioner in contending that actual
knowledge should be equivalent to a written
notice of sale, the Curt made it clear that it
was not reversing the prevailing jurisprudence.
The court simply adopted an exception to the
general rule, in view of the peculiar
circumstances of this case. In Alonzo, the right
of legal redemption was invoked several years,
not just days or months, after the
consummation of the contracts of sale but
more than years after the sales were
concluded.”

70