Undue and Improper Pressure or Inuence: The inuence or pressure must be undue to nullify a will.

According to Article 1337 of the Civil Code, undue and improper inuence and pressure occurs when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. It is that which substitutes the wishes of another for that of the testator. There must be some form of moral ascendancy of one person over another. If there is no such moral ascendancy then it cannot be lawfully claimed that undue and improper inuence and pressure existed. One The ultimate effect of this inuence or pressure is that the person loses his freedom of choice by the subjugation of the will of the person to such an extent that the person only acts as the robot of the person exercising the undue and improper inuence and pressure. Undue inuence or pressure also exists despite the absence of a special relationship when a testator is mentally weak, ignorant, or in nancial distress. Article 828. A will may be revoked by the testator at anytime before his death. Any waiver or restriction of this right is void. Art. 796. All persons who are not expressly prohibited by law may make a will. Art. 797. Persons of either sex under eighteen years of age cannot make a will. Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. Testamentary Capacity: The ability to execute a will has three components; age, soundness of mind, and express statutory prohibition. Article 777. The rights to the succession are transmitted from the moment of the death of the decedent

Death as the cause of succession: Since death triggers the opening of succession, it is important to determine the meaning of death because without death there can be no succession. Two Kinds of Death: As mentioned earlier, death may be actual or presumed. Proof of actual death is provided by a Death Certicate. As regards presumed death, there are two classications. The rst one refers to ordinary presumption due to an absence for at least ten years. The second refers to extraordinary presumption due to an absence of four years under extraordinary circumstances as provided in Article 391. ----- Presumptive Death: Death in the legal sense may be actual death or presumed death. Presumptive death may be ordinary or extraordinary. Below are the Articles regarding presumptive death: Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-ve years, an absence of ve years shall be sufcient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. Strictly Personal: The making of a will must be wholly done by the testator. While lawyers or agents can assist the testator in drafting the will, the testator still has to approve whatever is drafted. Thus a will drafted by a lawyer is still considered as made personally by the testator. The law provided certain safeguards if in case these lawyers or agents violate the strictly personal feature of making a will. For instance, when they dictate or inuence the testator in making or changing certain dispositions, the law invalidates the will on the ground of undue inuence. Accomplished through an agent or attorney: Notarial wills (as opposed to holographic wills whereby the testator has to personally write the will) are usually prepared by attorneys who specialize in estate planning or settlement. Having more knowledge on the formalities required by law for the preparation of wills, testators normally expect their lawyers to draft a will on their behalf. Nonetheless, the testator himself still has to personally participate in the making of the will either by way of signing it in the presence of witnesses or by directing another person to sign his name in the will in his presence as provided in Article 805. Hence, despite being prepared or drafted by an attorney or signed by an agent, the making of the will remains strictly personal. Article 785. The duration or efcacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Prohibited Delegation: The determination of the duration and/or efcacy of the institution and the apportionment of property cannot be delegated without violating the personal characteristic of a will. Article 785 thus prevents the delegation of the exercise of testamentary discretion as to effectivity of designation

and as to who gets what. Duration or Efcacy of the Designation: The discretionary powersof the testatortodeclare whenor how longthe designation of the heir is effective cannot be delegated to another. Any limit or term affecting the designation is as personal as the designation itself.d Article 786. The testator may entrust to a third person the distribution of specic property or sums of money that he may leave in general to specied classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied. Distribution of Property: Article 786 provides that the distribution of a specied sum to a specied class of people can be entrusted to a third person. Such delegation is allowed because testamentary discretion had already been exercised and what is delegated is merely the implementation of such discretion. Mere implementation: The third person merely implements thedispositionastowhoaretoreceivetheestateof thetestator.For the delegated power to be ministerial in nature, the testator has to provide for guidelines or criteria and has already earmarked specic property or sums of money for such third person to merely distribute in accordance with the criteria provided. Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. Prohibited delegation: Based on the preceding article, the determination as to the effectiveness of a particular testamentary disposition cannot be delegated without violating the personal characteristic of a will. Thus, when a testator makes a disposition, it becomes effective either immediately upon his death (unconditional) or upon the happening of a condition or arrival of a term (conditional) as imposed by the testator himself. The happening of the condition or the

determination thereof cannot be made dependent on a third person.

history of the Philippine Senate) 2. Non-apparent or intrinsic: Mistake as when no person or property exactly answers the description that cannot be seen from a mere personal reading of the will, but appears only upon the consideration of extrinsic circumstances. (Example: to my best friend in school and the testator had best friends in high school, college, law school, etc.) Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. Ordinary interpretation: Non-technical words are inter- preted ordinarily unless testamentary intent provides otherwise AND that such peculiar or different interpretation can be ascertained. Technical interpretation: Technical words are interpreted in their technical sense unless testamentary intent provides otherwise OR it can be proven that the testator was unfamiliar with such technical word and he made the will unassisted by any technical person.

C. Interpretation of Wills 788 789 790 794 930

Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Purpose of the rules of interpretation: The primary purpose is to ascertain the meaning and intent of the testator in the will. The cardinal rule in construing wills is the same as the rules as regards statutes, i.e. when the law admits of no ambiguity, there is no need to resort to the rules of interpretation or construction. However, as stated in Article 788, in case of doubt, the interpretation towardsthe operativeness of the will is favored. The intent of the testator must prevail in cases of ambiguity. Article 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testators intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. Different types of Mistakes: 1. Apparent or extrinsic: Mistake of imperfect des- cription that appears in the face of the instrument. (Example: to the most intelligent Senator in the