Bicol University

College of Law A decedent is the general term applied

Legazpi City to the person whose property is
transmitted through succession,
SUCCESSION LAW whether or not he left a will.
Reports
If he left a will, he is also called the
GENERAL PROVISIONS testator.

Art. 774. Succession is a mode of Art. 776. The inheritance includes

acquisition by virtue of which the all the property, rights and
property, rights and obligations to obligations of a person which are
the extent of the value of the not extinguished by his death.
inheritance, of a person are
transmitted through his death to The inheritance does not include
another or others either by his will everything that belongs to the deceased
or by operation of law. at the time of his death.

Succession is a mode of acquiring It is limited to his property, rights, and

ownership, by virtue of which the obligations not extinguished by death.
inheritance of a person is transmitted to In addition to the transmissible rights
us, either according to his express will and obligations existing at the time of
and words, or if by some natural or the decedent’s death, all property
accidental circumstances he has made accruing thereto from that time will
no will, according to his presumed will pertain to the heir.
provided for by law as analogous to
what he would have made had he Intransmissible Rights
executed one.
1.​ Arising from public law (suffrage,
Inheritance is the universality or public employment);
entirety of the property, rights, and 2.​ Private rights on purely personal
obligations of a person who has died. relations;
Succession on the other hand is the 3.​ Private rights whose duration is
legal mode by which this inheritance is limited by law to the lifetime of
transmitted to the persons entitled to it the owner; and
surviving the deceased. 4.​ Private rights which require the
intervention of the owner for
Art. 775. In this Title, "decedent" is their exercise
the general term applied to the
person whose property is General Rules on Transmissibility
transmitted through succession,
whether or not he left a will. If he 1.​ Rights which are purely personal
left a will, he is also called the are by their nature and purpose,
testator. intransmissible;
2.​ Patrimonial rights are not
extinguished by death and
constitute the inheritance of the These rights arise from the express will
decedent, except those expressly of the testator or from the provisions of
provided by law or by the will of the law, but they do not acquire any
the testator solidity and effectiveness except from
3.​ Rights and obligation are by the moment of death.
nature transmissible and may
constitute part of the inheritance, Before the moment of death, the law
both with respect to the rights of may change, the will of the testator may
the creditor and as regards the vary, and even circumstances may be
obligations of the debtor modified to such an extent that he who
expected to receive property may be
XPNs: deprived of it.

a.​ Those which are personal, in NOTE: It is clear that the moment of
the sense that the personal death is the determining point when the
qualifications and heirs acquire a definite right to the
circumstances of the debtor inheritance, whether such right be pure
had been taken into account; or conditional.
b.​ Those transmissible by
express agreement or will of Q: Is death the sole factor effecting
the debtor; the transmission of rights?
c.​ Those transmissible by
express provision of the law A: No, there are other elements
necessary for the transmission of
Obligations of the Deceased successional rights.

The heirs of the deceased are no longer The express or tacit acceptance by the
liable for the debts he may leave at the heir, devisee, or legatee is necessary to
time of his death. Such debts are the perfection of the juridical relation in
chargeable against the property or succession.
assets left by the deceased.
Requisites for Transmission of
What remains after all such debts have Successional Rights
been paid will be subject to the
distribution among the heirs. a.​ Express will of the testator;
b.​ Death of the person whose
Art. 777. The rights to the succession is in question;
succession are transmitted from c.​ Acceptance of the inheritance by
the moment of the death of the the person called to the
decedent. succession

The death of a person consolidates and Presumption of Death

renders immutable in a certain sense,
rights which up to that moment were It is not limited to natural or physical
nothing but mere expectancy. demise; it includes presumed death
occasioned by prolonged legal absence.
Validity
Under Art. 390, after an absence of ten
years, a person shall be presumed to
●​ Extrinsic – Compliance with the
be dead for the purpose of opening his
formal requirements of a will;
succession; but if he disappeared after
●​ Intrinsic – Substantive validity of
the age of 75, an absence of five years
testator’s dispositions contained
shall suffice.
therein
Under Art. 391, the following are Legal or Intestate Succession
presumed to be death for all purposes,
including the division of his estate This takes place by operation of law in
among his heirs: the absence of a valid will.

1.​ A person on board a vessel Legal or intestate succession takes

lost during sea voyage or an place:
aeroplane which is missing,
who has not been heard of for 1.​ If a person dies without a will,
four years; or with a void will, or one
2.​ A person in the armed forces which has subsequently lost
who has taken part in war and its validity.
has been missing for four 2.​ When the will does not
years; institute an heir to, or
3.​ A person who has been in the dispose of all the property
danger of death under other belonging to the testator. In such
circumstances and his case, legal succession shall take
existence has not been known place only with respect to the
for four years property of which the testator
has not disposed.
Art. 778. Succession may be: 3.​ If the suspensive condition
attached to the institution of the
​ (1) Testamentary; heir does not happen or is not
​ (2) Legal or intestate; fulfilled, or if the heir dies
​ (3) Mixed. before the testator, or
repudiates the inheritance,
Art. 779. Testamentary succession there being no substitution, and
is that which results from the no right of accretion takes place.
designation of an heir, made in a 4.​ When the heir instituted is
will executed in the form prescribed incapable of succeeding,
by law. except in cases provided in this
Code.
Testamentary Succession
Some Rules for Testamentary
A person died with a valid will. Succession

1.​ May be done thru a will or a

codicil;
2.​ The will or codicil may be: even in the presence of a will, if such a
a.​ Notarial (ordinary, will does not validly dispose of all the
attested, or property of the deceased and there is
acknowledged) no provision as to how the residual
b.​ Holographic (handwritten property is to be disposed.
by the testator from the
beginning to end, Some provisions are not considered
complete with date and testamentary or property dispositions;
signature)
c.​ In case of doubt, Beneficiaries are incapable to accept or
testamentary succession is enter into inheritance and there is no
preferred to legal or representation or accretion.
intestate succession
GR: No contract may be entered
Testamentary Succession Preferred into upon future inheritance.
XPN: In cases expressly
The will of the testator, expressed in authorized by law.
the form required by the law, must be
recognized as the supreme law in The provision of the Family Code on
succession. ante-nuptial agreements may appear to
be a form of contractual succession,
When, however, there is no valid which is considered not contrary to
testament expressing the decedent’s public policy.
will, then his property must be
distributed according to the provisions Contractual Succession
of law on intestate or legal succession.
When a future husband and wife give to
Even in the presence of a will, if such each other in their marriage settlement
will does not validly dispose of, or to as much of their future property, in the
which no heir is designated by the event of death, as they may validly
testator, there is legal or intestate dispose of in a will.
succession.
Under Art. 84 of the Family Code, this
Art. 780. Mixed succession is that provision will only apply if the future
effected partly by will and partly by spouses agree upon a regime other
operation of law. than the absolute community of
property.
Mixed Succession
Art. 781. The inheritance of a
The will of a testator; expressed in the person includes not only the
form required by law and exercised property and the transmissible
within legal limits must be recognized rights and obligations existing at
as the supreme law in succession. the time of his death, but also those
which have accrued thereto since
However, the provisions of law on the opening of the succession.
intestate succession will take effect,
Right of Accession The devisee or legatee, by express
disposition of the testator, succeeds
This is the right of the owner of a thing him in a determinate or individualized
to everything produced by it, thing or quantity, without continuing
incorporated therein, either naturally or his personality.
artificially.
NOTE: In case of preterition or total
Even without this article, an heir would omission of any of the compulsory heirs
be entitled to the accessions and fruits in the direct timeline, the institution of
which have accrued since the death of heir shall be annulled, except that
the decedent, by virtue of the right of legacies and devises shall be respected
accession. insofar as they are not inofficious.

Art. 782. An heir is a person called Kinds of Heirs

to the succession either by the
provision of a will or by operation 1.​ Compulsory - Those who
of law. succeed by force of law to some
portion of the inheritance, in an
Devisees and legatees are persons amount predetermined by law, or
to whom gifts of real and personal which they cannot be deprived by
property are respectively given by the testator
virtue of a will. XPN: Valid disinheritance
2.​ Voluntary or Testamentary
Concept of an Heir Heirs - Those who are instituted
by the testator in his will, to
An heir includes all relatives who succeed to the inheritance or the
succeed by virtue of the laws of portion thereof which the
intestate succession, as well as all testator can freely dispose.
persons, whether relatives or not, who 3.​ Legal or Intestate Heirs -
take what might be called the residuary Those who succeed to the estate
estate under a will. of the decedent who dies without
a valid will or to the portion of
In a sense, he is the continuation of the such estate not disposed by will.
estate of the deceased.
TESTAMENTARY SUCCESSION
Concept of a Legatee and a Devisee SECTION 1. Wills

A legatee is one whom is given a gift of Subsection 1. - Wills in General

personal property by ill; and a devisee
is one to whom real property is given by
Art. 783. A will is an act whereby a
will.
person is permitted, with the
formalities prescribed by law, to
There is a devisee or a legatee only in
control to a certain degree the
testamentary succession.
disposition of his estate, to take
effect after his death.
Definition of a Will Testamentary Capacity

It is an instrument by which a person This refers to the capability of a person

makes a disposition of his property to to understand the nature and
take effect after his death, and which is, consequences of making a will, to
in its own nature, ambulatory and remember and comprehend the nature
revocable during his life. of their assets, and to recognize the
natural beneficiaries of their estate.
The present Code seems to limit the
concept of a will to a disposition of Requirements
property to take effect upon and after
death. 1.​ Age - at least 18 years old;
2.​ Mental competence
NOTE: It is only when the will disposes
of property either directly or indirectly, Art. 784. The making of a will is a
that it has to be probated. strictly personal act; it cannot be
left in whole or in part to the
Characteristics of Wills discretion of a third person, or
accomplished through the
1.​ Purely personal act; instrumentality of an agent or
2.​ Free act, without violence, fraud attorney.
or deceit;
3.​ Disposes of property; Art. 785. The duration or efficacy of
4.​ Essentially revocable; the designation of heirs, devisees
5.​ Formally executed; or legatees, or the determination of
6.​ Testator has testamentary the portions which they are to take,
capacity; when referred to by name, cannot
7.​ Unilateral act; be left to the discretion of a third
8.​ Act mortis causa person.

A Will is Essentially Revocable Non-Delegability

The will does not take effect except What cannot be delegated
upon the death of the testator, thus, up
to the moment of such death, the mind 1.​ The making of the disposition;
of the testator may still change. 2.​ The expression of the will of the
testator
Exclusion of Heir
What can be delegated
The law permits a testator to disinherit
a compulsory heir for any of the causes 1.​ The mere mechanical act of
provided by law, and the disinheritance drafting of the will;
is expressly required to be made in a 2.​ The actual execution of the will
will.
Art. 786. The testator may entrust Art. 788. If a testamentary
to a third person the distribution of disposition admits of different
specific property or sums of money interpretations, in case of doubt,
that he may leave in general to that interpretation by which the
specified classes or causes, and disposition is to be operative shall
also the designation of the persons, be preferred.
institutions or establishments to
which such property or sums of In construing the provisions of a will,
money are to be given or applied. substance rather than form must be
regarded, and the instrument should
No delegation receive the most favorable construction
to accomplish the purpose intended by
There is no delegation here. The the testator.
testator has already expressed his/her
will and the third person entrusted to The intention of the testator is the
make the distribution simply carries out controlling factor in the juridical
the details in the execution of the relations arising from the will. Hence, it
testamentary disposition made by the is necessary to interpret that intention
testator. rationally and in such manner as not to
render ineffective the testamentary
Art. 787. The testator may not make disposition.
a testamentary disposition in such
manner that another person has to The presumption is that the testator
determine whether or not a intended a lawful rather than an
testamentary disposition is to be unlawful thing. Courts will not seek an
operative. interpretation that will nullify his will or
any part thereof.
To delegate to a third person the power
to determine whether or not a That construction must be followed
testamentary disposition is to be which will sustain and uphold the will in
operative is in effect delegating the all its parts, if it can be done
power to make the testamentary consistently with the established rules
disposition. This is not permitted of law.
because it would violate the principle
that a will is a purely personal act. If the language used is reasonably
susceptible of two different
It is not only the delegation which is interpretations, doubt must be resolved
void; the testamentary disposition in favor of the construction which will
whose effectivity will depend upon the give effect to the will, rather than the
determination of the third person is the one which will defeat it.
one which cannot be made. Hence, the
disposition itself is void. NOTE: When the language of the
testamentary disposition, however, is
plain and unambiguous, courts are not
permitted to wrest it from its natural
meaning in order to save it from nullity.
Art. 789. When there is an imperfect 2.​ Where there is a misdescription
description, or when no person or of the beneficiary or of the thing
property exactly answers the given as gift
description, mistakes and
omissions must be corrected, if the Q: How do we resolve ambiguities
error appears from the context of in a will?
the will or from extrinsic evidence,
excluding the oral declaration of the A: The answer will depend on
testator as to his intention; and what kind of ambiguity is present
when an uncertainty arises upon in the will or disposition:
the face of the will, as to the
application of any of its provision, 1.​ Patent or extrinsic - by
the testator's intention is to be considering the words of
ascertained from the words of the the will or the
will, taking into consideration the circumstance under which
circumstances under which it was the will was made, but not
made, excluding such oral the oral declarations of
declaration. the testator.
2.​ Latent or intrinsic - from
Kinds of ambiguity the context of the will or
extrinsic evidence,
There are two kinds of ambiguity in a excluding oral
will: declarations of the
testator.
1.​ Patent or extrinsic ambiguity
- It is one which appears upon Q: Why can’t oral declarations of the
the face of the instrument testator be considered?
2.​ Latent or intrinsic ambiguity -
It is one which cannot be seen A: The admission of oral
from a mere perusal or reading declarations of the testator
of the will, but which appears whose lips have been sealed by
only upon consideration of death and therefore can no
extrinsic circumstances longer deny or affirm the truth of
what witnesses may say he
A latent or intrinsic ambiguity may declared, would create
therefore arise either: confusion and give rise to false
claims.
1.​ When the will names a person as
the beneficiary of a gift, or a The construction of the will cannot be
thing as the subject matter of explained or controlled by the oral
such gift, and there are two or declarations of the testator of his
more persons that answer to understanding of the meaning of the
such name, or two or more will, or of his intention of doing
things that meet such something else.
description, or
Thus, the testimony of the person who language of the testator, except where
drafted the will, that, at the time he was it clearly appears that his intention was
drawing the will, the testator stated that other than that actually expressed.
he wished certain persons to have the
share of a deceased daughter, has been A translation, submitted to the court,
held inadmissible to show the testator's made in accordance with the idiomatic
intention. usage of the language from which it is
made, will prevail over a literal
Art. 790. The words of a will are to translation which, while word for word
be taken in their ordinary and correct, is not idiomatic.
grammatical sense, unless a clear
intention to use them in another Art. 791. The words of a will are to
sense can be gathered, and that receive an interpretation which will
other can be ascertained. Technical give to every expression some
words in a will are to be taken in effect, rather than one which will
their technical sense, unless the render any of the expressions
context clearly indicates a contrary inoperative; and of two modes of
intention, or unless it satisfactorily interpreting a will, that is to be
appears that the will was drawn preferred which will prevent
solely by the testator, and that he intestacy.
was unacquainted with such
technical sense. Effectivity of all parts

Intent of the testator; paramount Effect should, if possible, be given to all

words, clauses, and provisions of the
The supreme law in succession is the will, if they are not inconsistent with
intent of the testator. All rules of each other, or with the general intent of
construction are designed to ascertain the whole will taken in its entirety.
and give effect to that intention. It is
only when the intention of the testator No part of the will should be discarded
is contrary to law, morals, or public unless in conflict with some other part,
policy that it cannot be given effect. in which case that part will be enforced
which expresses the intention of the
Literal meaning of language testator.

The words and provisions in the will Prevention of intestacy

must be plainly construed in order to
avoid a violation of his intentions and Where a will has been executed, the
real purpose. reasonable and natural presumption is
that the testator intends to dispose of
When the testamentary provisions are all his property.
clearly and positively stated, questions
arising in the courts in connection with
the execution of and compliance
therewith shall be adjusted in harmony
with the plain and literal meaning of the
Art. 792. The invalidity of one of Art. 794. Every devise or legacy
several dispositions contained in a shall convey all the interest which
will does not result in the invalidity the testator could devise or
of the other dispositions, unless it bequeath in the property disposed
is to be presumed that the testator of, unless it clearly appears from
would not have made such other the will that he intended to convey
dispositions if the first invalid a less interest.
disposition had not been made.
General rule as to what interest
Art. 793. Property acquired after may be disposed of
the making of a will shall only pass
thereby, as if the testator had The entire interest of the testator in the
possessed it at the time of making property is given not more, not less.
the will, should it expressly appear
by the will that such was his Ex. The owner of a house who
intention. devises the same transfers
ownership over the entire house;
Principle contrary to other if he were a mere co-owner or a
provisions of the Code usufructuary, he conveys his
share in the ownership, or his
The will of a person transmits only the usufructuary right, no more, no
property owned by him at the time of less.
the making of such will; property
acquired thereafter is transmitted only Exceptions
when it expressly appears in the will
that such is his intention. 1.​ He can convey a lesser interest if
such intent clearly appears in the
NOTE: The inheritance includes all the will;
property, rights, and obligations of a 2.​ He can convey a greater interest;
person not extinguished by his death; it 3.​ He can convey property which he
includes not only those existing at the very well know does not belong
time of death, but the heir gets also the to him, provided that it also does
property which may accrue thereto not belong to the legatee or
since such death. devisee.

Reconciling this provision with Art. 795. The validity of a will as to

other provisions of the Code its form depends upon the
observance of the law in force at
The most that can be done is to the time it is made.
construe the present article as referring
only to devises and legacies. After all, Kinds of validity with respect to
these were the testamentary wills
dispositions contemplated by the Code
of Civil Procedure, from which this 1.​ Extrinsic validity - refers to
article was taken. forms and solemnities needed
2.​ Intrinsic validity - refers to the regardless of the place of
legality of the provisions in an execution or place of death.
instrument, contract, or will.
Subsection 2. - Testamentary Capacity
General rules on validity and Intent

Extrinsic Validity Art. 796. All persons who are not

expressly prohibited by law may
1.​ From the viewpoint of time - make a will.
What must be observed is the law
in force at the time the will is
The general rule is capacity.
made
2.​ From the viewpoint of place
Two general qualifications:
or country
a.​ If the testator is a Filipino,
1.​ 18 years or over;
he can observe Philippine
2.​ Soundness of mind at the time
laws; or those in the
the will is made.
country where he may be;
or those in the country
Hence, a convict under civil interdicition
where he executes the
is allowed to make a will. This is
will;
because civil interdiction prohibits a
b.​ If the testator is an alien
disposition of property inter vivos, not
who is abroad, he can
mortis causa.
follow the law of his
domicile, or his nationality
All persons hould be understood to
or Philippine laws, or
refer only to natural persons, not
where he executes the
juridical ones like corporations.
will;
c.​ If the testator is an alien in
Capacity to make a will is called
the Philippines, he can
testamentifaccion active. Whereas
follow the law of his
the capacity to inherit or to receive by
nationality or the laws of
will is testamentifaccion passive.
the Philippines since he
executes the will here
Art. 797. Persons of either sex
under eighteen years of age cannot
Intrinsic Validity
make a will.
1.​ From the viewpoint of time -
Successional rights are governed The age of eighteen has been fixed for
by the law in force at the time of at this age, an individual is generally no
the decedent’s death; longer subject to fraud, influence, or
2.​ From the viewpoint of place insidious machinations.
or country - The national law of
the decedent, that is, the law of
his country or nationality,
Art. 798. In order to make a will, it 3.​ He must be able to remember the
is essential that the testator be of natural objects of his bounty;
sound mind at the time of its and
execution. 4.​ He must have sufficient mental
ability to make a disposition of
Art. 799. To be of sound mind, it is his property among the objects
not necessary that the testator be of his bounty according to some
in full possession of all his plan which he has formed in his
reasoning faculties, or that his mind.
mind be wholly unbroken,
unimpaired, or unshattered by Properties of the testator
disease, injury or other cause.
The rule that requires the testator to be
It shall be sufficient if the testator capable of ascertaining in his mind the
was able at the time of making the items of his prorty does not mean that
will to know the nature of the estate he must have such information in his
to be disposed of, the proper mind at one time.
objects of his bounty, and the
character of the testamentary act. An actual mistake by a testator as to the
extent of his property does not show as
Soundness of mind a matter of law that he is lacking in
testamentary capacity.
The law requires that the testator be of
sound mind at the time of the execution But a testator of such feeble mental
of the will. condition:

NOTE: He is able to execute his will 1.​ That he cannot furnish his
with an understanding of the nature of attorney details concerning his
the act, such as the recollection of the: property; or
2.​ One so dull or obtuse as not to
1.​ Property he means to dispose; know that he owned a property
2.​ Persons who are or who might
reasonably be the object of his …does not have testamentary capacity.
bounty; and
3.​ The manner in which it is to be Effect of infirmities
distributed among them.
A person must have the mental capacity
to understand the nature of making a
Elements of testamentary capacity
will, the extent of his property and the
identity of potential heirs.
1.​ The testator must have the
mental capacity to understand
In Bugnao v. Ubag:
the nature and effect of his act;
2.​ He must have sufficient
recollection of his properties; Testamentary capacity is the
capacity to comprehend the
nature of the transaction in
which the testator is engaged at In Hernaez v. Hernaez:
the time, to recollect the
property to be disposed of and Senile dementia or imbecility
the persons who would naturally from old age, does not
be supposed to have claims upon necessarily exclude the
the testator, and to comprehend possibility of testamentary
the manner in which the capacity and although it begins
instrument will distribute his gradually, yet it is well-nigh
property among the objects of stripped of its function.
his bounty.
When the testator has reached
In Bagtas v. Paguio: this point when he no longer
understands the act in which he
There can be no doubt that the in engaged, he has no longer the
testator’s infirmities were of a capacity to make a valid will,
very serious character, and it is regardles of what his age may
quite evident that his mind was be.
not active as it had been in his
earlier years of life. Insane Delusion

However, we cannot conclude Such condition does not comprehend a

from this that he was wanting general weakening of the mind, but
in the necessary mental refers to a mental disturbance
capacity to dispose of his regarding some particular object or
property by will. subject.

The Court has repeatedly held Not every insane delusion will render
that mere weaknes of mind one incapable of making a will. A
and body, induced by age and testator may have delusions regarding
disease, does not render a matters which do not affect or concern
person incapable of making a his testamentary act and which have no
will. influence upon the disposition which he
makes of his estate. If the testator is
NOTE: Unsoundness of mind which the otherwise mentally qualified, the
law contemplates as incapacitating a existence of such delusion would not
testator from making a will may be the invalidate his will.
result of many causes, such a mental
illnesses. The law, however, does not But the testamentary disposition will be
deal with these causes. It is the effect void when the delusion touches the
of these causes with which the law subject matter of the will.
must deal regardless of what the
actual cause may be. Deaf, Dumb, and Blind

Art. 807 recognizes the capacity of a

deaf-mute to make a will, even if he
does not know how to read and write.
If the proof of insanity consists in the
Art. 808 accepts the capacity of a blind decree or judgment of a competent
testator to make an ordinary or attested court declaring the testator to be non
will. compos mentis, and placing him under
guardianship, the presumption is, and
Determination of soundness of continues until there be a decree or
mind judgment by a competent court
declaring that he is incompetent of
It must be determined as of the time of making a valid will.
the execution of the will. If he wa not of
sound mind at the time the will was The same rule applies if the testator
executed, the will is invalid regardless was publicly known to be insane within
of his state of mind before or after the one month before the making of the
will was made. will.

The nullity of the will executed when No presumption of insanity

the testator was of unsound mind is not
cured by the mere fact that the testator The law generally assumes they had the
later recovers reason and fails to revoke necessary testamentary capacity, unless
his will. proven otherwise.

Art. 800. The law presumes that Testimonial evidence of soundness

every person is of sound mind, in of mind
the absence of proof to the
contrary. 1.​ Notary public and attesting
witnesses - Constitutes a true
The burden of proof that the guaranty of the capacity of the
testator was not of sound mind at testator, by reason of their
the time of making his dispositions knowledge of the matter;
is on the person who opposes the 2.​ Non-attending physician - The
probate of the will; but if the positive testimony of the
testator, one month or less, before attesting witnesses which does
making his will was publicly known not in itself seem unreasonable
to be insane, the person who as to the mental condition of the
maintains the validity of the will testator must prevail over the
must prove that the testator made professional specualtions of a
it during a lucid interval. non-attending physician.
3.​ Attending physician - The
Burden of proof testimony of the attending
physician should be given the
The presumption is that the testator is highest regard, especially if he
of sound mind. The obligation to prove was present when the will was
the mental incapability of the testator executed.
rests upon those who allege such
incapacity.
Evidence on mental condition Both articles also apply to the husband.
The purpose of the provision is to make
The evidence of those present at the clear the right of a married woman to
execution of the will and of the make a will even without the consent of
attending physician are also to be relied her husband and without the necessity
upon. of securing authority of the Court.

But the mere professional speculation Either of the spouse may dispose of by
of an attending physician should not be will his/her separate property as his/her
allowed to prevail over the positive interest in the community or conjugal
testimony of several apparently credible propery without need of the consent of
witnesses whose testimony does not in the other.
itself seem unreasonable.
In the case of the community or
Art. 801. Supervening incapacity conjugal property, a spouse cannot
does not invalidate an effective dispose of any specific or determinate
will, nor is the will of an incapable property, since until it is liquidated,
validated by the supervening of his/her right is limited only to an
capacity. undivided share of the whole.

Supervening incapacity or capacity Subsection 3. - Forms of Wills

The testator must be of sound mind at Legal formalities in will execution

the time of the execution of his will.
The legislature mandates formalities in
If he did not have capacity at the time of will execution, ensuring validity. A will
the execution of the will, his failing to meet formalities, even
subsequent acquisition of capacity will unintentionally, is denied probate.
not make the will valid.
The testator’s intent does not
Art. 802. A married woman may override statutory compliance. The
make a will without the consent of rule that the intention of the testator
her husband, and without the must govern, which applies to the
authority of the court. interpretation of wills, does not apply to
their execution.
Art. 803. A married woman may
dispose by will of all her separate Art. 804. Every will must be in
property as well as her share of the writing and executed in a language
conjugal partnership or absolute or dialect known to the testator.
community property.
Kinds of will
Capacity of wife to make and
dispose of property by will 1.​ Ordinary or attested/notarial
will - The execution of which is
governed by Arts. 804 to 809. It
must be acknowledged before a
notary public, by a testator and
the attesting witnesses. Art. 805. Every will, other than a
2.​ Holographic will - It is one that holographic will, must be
is entirely written, dated, and subscribed at the end thereof by
signed by the testator himself. the testator himself or by the
There is no attestation by testator's name written by some
witnesses. other person in his presence, and
by his express direction, and
NOTE: If the will is not entirely attested and subscribed by three or
written in the testator’s own more credible witnesses in the
handwriting, the same must presence of the testator and of one
comply with the formalities another.
required of an ordinary will to be
valid. The testator or the person
requested by him to write his name
A will not executed in a language or and the instrumental witnesses of
dialect known to the testator is void, the will, shall also sign, as
and therefore, cannot be probated. aforesaid, each and every page
thereof, except the last, on the left
Proof of knowledge margin, and all the pages shall be
numbered correlatively in letters
No statutory requirement to state in the placed on the upper part of each
will itself that the testator knew the page.
language or dialect used in the will.
The attestation shall state the
number of pages used upon which
However, there must be proof of
the will is written, and the fact that
compliance with such a requirement
the testator signed the will and
and the burden of proof is incumbent
every page thereof, or caused some
upon those who presented the will for
other person to write his name,
probate.
under his express direction, in the
presence of the instrumental
Presumption
witnesses, and that the latter
witnessed and signed the will and
If a will is written in the local dialect of
all the pages thereof in the
the province or locality where the
presence of the testator and of one
testator was born or resides or the
another.
dialect is commonly spoken, the
presumption is that the testator If the attestation clause is in a
understood the language used in language not known to the
the will, unless proven otherwise. witnesses, it shall be interpreted to
them.
the testator and of one
Additional formalities in another
notarial/ordinary wills 7.​ It must be acknowledged
before a notary public by the
1.​ The will must be subscribed at testator and the witnesses
the end thereof, by the testator
himself, or by the testator’s Signature by the testator
name written by some other
person in his presence and The will not signed by the testator, or
express direction; by some person in his presence and at
2.​ It must be attested and his express direction cannot be allowed
subscribed by at least three in probate.
credible witnesses in the
presence of the testator and of The material thing is that the testator
one another; made the mark to authenticate the
3.​ The testator or the person writing in his will, and whatever he puts
requested by him to write his on it for that purpose will suffice.
name must also sign every page,
except the last, on the left 1.​ A cross between his first and last
margin in the presence of the name;
witnesses; 2.​ Thumbark placed across the
4.​ The witnesses must sign every name;
page on the left margin in the 3.​ First name without the surname;
presence of the testator and of 4.​ The name written is that of
one another; another or of a fictitious person,
5.​ All pages must be numbered instead of his own
correlatively in letters on the
upper part of each page; Where to sign
6.​ It must contain an attestation
clause which expressly states He must sign all pages containing
the following: testamentary dispositions on the
a.​ The number of pages used left-hand margin. However, on the last
upon which the will is page, the testator must sign at the end
written; of the will, which refers to the logical
b.​ The fact that the testator end - the point after the last disposition.
signed the will and every
page thereof, or caused NOTE: Where the signature is followed
some other person to by dispositive portions, even the
write his name, under his portion of the instrument preceding the
express direction, in the signature cannot be probated, because
presence of the the instrument must be considered as a
instrumental witnesses; whole.
c.​ The fact that the witnesses
witnessed and signed the
will and all the pages
thereof in the presence of Ways of signing
Where to write the testator’s name
1.​ The testator may sign it
personally The third person must write the
testator’s name at the end of the will
This is satisfied not only by the and not merely in the body of the
customary written signature, but attestation clause.
also by a thumbprint or
thumbmark or other mark Who may sign
affixed by him.
It is immaterial who writes the name of
2.​ May cause another person to the testator, even one of the witnesses
write his name may sign for the testator.

This must be done in the Wills must be attested and

testator’s presence and by his subscribed by three witnesses
express direction.
ATTESTATION SUBSCRIPTION
Requisites if signed through another Consists in
witnessing the
The signing of the
1.​ The testator’s name is written by testator’s
witnesses’ names
some other person in his execution of the
upon the same
presence and by his express will in order to
paper for the
direction, not necessarily written; see and take note
purpose of
mentally that
2.​ Such person signed the will and identification of
those things are
every page thereof in the such paper as the
done which the
presence of the testator and will which was
statute requires
instrumental witnesses; executed by the
for the execution
3.​ The person requested by the testator. This is
of a will and that
testator signs the testator’s the act of the
the signature of
hand.
name, not his; otherwise, the the testator exists
will cannot be allowed; as a fact.
4.​ The fact that the testator caused
some other person to write his If the last page also contains the
name in his presence and by his attestation clause
express direction and also in the
presence of the instrumental If the last page (or end of the will) also
witnesses is stated in the contains the attestation clause and is
attestation clause. signed by the witnesses only on the
left-hand margin, the will is void.
If any of the foregoing requirements is
not complied with, the will is void. The signatures of the witnesses on the
left-hand margin only satisfy the
requirement of subscription but not the
requirement of attestation.
NOTE: However, if the witnesses signed NOTE: The failure of ALL three
the attestation clause itself but not the witnesses to sign the left margin of
left-hand margin of the page containing every page, even when the testator’s
such clause, the will is still valid signature appears thereon, is a fatal
because both the requirements of defect.
attestation and subscription are
satisfied. Signing on the left margin; directory

Number of witnesses mandatory The marginal signatures are not

mandatory in character, provided, of
The number of the instrumental course, that such signatures are present
witnesses is mandatory. in every page of the will.

If a witness, or his/her spouse, parent, The object is to avoid the substitution

or child has been made a devisee or of any of said sheets, thereby
legatee in the will to which he/she acts changing the testator’s disposition. The
as a witness, he/she does not thereby purpose of the law is satisfied
become disqualified as a witness but regardless of the location of the
the legacy or devise is void, unless marginal signatures.
there are three other witnesses to such
will. Signing in each other’s presence

The requirement of three witnesses is The true test of presence of the testator
not satisfied if one of the three and the witnesses in the execution of a
witnesses also acted as the notary will is not whether they actually saw
public himself before whom the will was each other sign, but whether they
supposed to have been acknowledged might have been seen each other
because the effect thereof is that there sign, had they chosen to do so, by
are only two attesting witnesses to the merely casting his eyes in the proper
will. direction and without any physical
obstruction to prevent his doing so.
Signature of testator and witnesses
on all pages in each other’s All pages must be numbered
presence correctly

Signing of all pages The rationale is to guard against fraud,

and to afford means of preventing the
The testator or the person requested by substitution or of defecting the loss of
him to write his name must sign every any of its pages.
page on the left margin, except the last
page which is required to be signed at How pages must be numbered
the end thereof, in the presence of the
witnesses. The law requires that the pages be
numbered in letters, however it was
The witnesses shall also do the same. ruled that the requirement is sufficiently
complied with if the folios were paged
with the letters A, B, C, etc., or in Arabic
numerals, or in any form. Contents of an attestation clause

Place of page number 1.​ Number of pages used;

2.​ That the testator signed, or
The number must be placed on the expressly caused another to sign,
upper part of each page. The location, the will and every page thereof in
however, is not important. the presence of the attesting
witnesses; and
NOTE: The place of execution and date 3.​ That the attesting witnesses
of execution of the will are immaterial. witnessed the signing by the
The will is still valid even if the place or testator of the will and all its
the date of execution is erroneous. pages, and that said witnesses
also signed the will and every
Requirement of attestation clause page thereof in the presence of
the testator and of one another
It refers to that part of an ordinary will
whereby the attesting witnesses certify Effect of omission to state total
that the instrument has been executed number of pages
before them and that compliance with
the essential formalities required by law If the attestation clause does not state
has been observed. the number of pages but the same is
stated elsewhere in the will, such as in
Effect of absence of an attestation the acknowledgment, the Court ruled
clause that the requirement of the law was
substantially complied with.
The complete absence of the attestation
clause would result in the invalidity of However, there could be no compliance
the will. In this regard, an unsigned with the requirements if there is no
attestation clause results in an statement in the attestation clause or
unattested will. elsewhere as to the number of pages
which comprises the will.
Act of witnesses
Effect of failure to state that all
Since it is a declaration made by the pages were signed
witnesses and not by the testator, it
need be signed only by the witnesses But a mere examination of the signature
and not by the testator. shows that every page thereof were
actually signed, the requirement of the
However, an attestation clause that is law has been complied with. Here, the
made by the testator himself rule of substantial compliance applies.
substantially complies with the
requirements of the law, where it
contains all the facts required to be
stated therein and signed by all the
witnesses together with the testator.
Effect of failure to state that will Acknowledgment before a notary
was signed in each other’s presence public

The rule on substantial compliance does This rule applies only to attested wills.
not apply in the following situations: The rationale is to minimize fraud and
undue influence.
1.​ If the attestation failed to state
that the testator signed the will Art. 807. If the testator be deaf, or a
in the presence of the witnesses; deaf-mute, he must personally read
2.​ If the attestation clause failed to the will, if able to do so; otherwise,
state that the witnesses signed he shall designate two persons to
the will in the presence of the read it and communicate to him, in
testator, or in the presence of some practicable manner, the
each other; contents thereof.
3.​ If the attestation failed to state
the fact that the testator did not This provision ensures that the testator
personally sign the will, but fully understands the will’s provisions.
requested another person to
write his name thereon, upon his Art. 808. If the testator is blind, the
express direction and in his will shall be read to him twice;
presence. once, by one of the subscribing
witnesses, and again, by the notary
Effect of discrepancy in number of public before whom the will is
pages acknowledged.

Where the Acknowledgement states the

This ensures that the testator
will consists of seven pages, including
understands the contents before
the same, but the will actually consists
signing. Failure to comply with this
of eight pages, the Court refused to
requirement makes the will invalid.
apply the rule on substantial
compliance because the discrepancy
Illiterate testator
cannot be explained by mere
examination of the will itself, but
An illiterate testator can see the paper
through the presentation of evidence
and the writing thereon, but he cannot
aliunde.
understand what is written because he
cannot read it.
Art. 806. Every will must be
acknowledged before a notary
public by the testator and the
witnesses. The notary public shall
not be required to retain a copy of
the will, or file another with the
Office of the Clerk of Court.
Art. 809. In the absence of bad Additionally, there is no particular form
faith, forgery, or fraud, or undue required by law for holographic wills. A
and improper pressure and person can even make a holographic
influence, defects and will in the form of a letter.
imperfections in the form of
attestation or in the language used The most essential and characteristic
therein shall not render the will requisite of a holographic will is that it
invalid if it is proved that the will must be entirely written by the
was in fact executed and attested in hands of the testator.
substantial compliance with all the
requirements of Article 805.

Substantial compliance rule

This allows flexibility in form as long as

objectives are met. Minor grammatical
errors in the attestation clause does not
invalidate the will.

Slight deviations in formal requirements

are acceptable if fraud risks are
minimized. This is in accordance with NOTE: The signature must be affixed
the Doctrine of Liberal by the testator on the day the will is
Interpretation. written and dated.

Art. 809. A person may execute a The signatures of the witnesses do not
holographic will which must be invalidate the will.
entirely written, dated, and signed
by the hand of the testator himself. Art. 811. In the probate of a
It is subject to no other form, and holographic will, it shall be
may be made in or out of the necessary that at least one witness
Philippines, and need not be who knows the handwriting and
witnessed. signature of the testator explicitly
declare that the will and the
Holographic wills signature are in the handwriting of
the testator. If the will is contested,
A holographic will is one executed by at least three of such witnesses
the testator himself, writing, dating, shall be required.
and signing it by his own hand, without
the attestation of any third person. In the absence of any competent
witness referred to in the preceding
A blind testator can still execute a paragraph, and if the court deem it
holographic will. The material used necessary, expert testimony may be
does not affect the validity. resorted to.
Probate of holographic wills testator may be frustrated through no
fault of his own.
Probate means the allowance of a will
by the court after its due execution by Upon the other hand, even if ordinary
the testator and its compliance with the witnesses are available, still if they are
solemnities prescribed by law has been unconvincing, the court may still, and in
proved. fact should resort to handwriting
experts.
Proof of identity of the signature and
handwriting of the testator is important, The duty of the Court is to exhaust all
otherwise, the will cannot be valid. available lines of inquiry, for the State is
very much interested in carrying into
Unless a will is allowed in probate, it effect the true intention of the testator.
shall not pass any property. The effect
of the probate of a will is that it is Issues to be resolved in probate
conclusive to its due execution.
1.​ Whether the instrument
NOTE: The probate is limited however submitted is, indeed the
to the formal or extrinsic validity of the decedent’s last will and
will. testament;
2.​ Whether said will was executed in
The probate may be: accordance with the formalities
prescribed by law;
1.​ Uncontested; 3.​ Whether the decedent had the
2.​ Contested necessary testamentary capacity
at the time the will is executed;
Probate of an uncontested holographic 4.​ Whether the execution of the will
will and its signing were the
voluntary acts of the decedent.
If uncontested, at least one identifying
(not necessarily subscribing) witness is Q: Are the provisions of Art. 811
required to avoid the possibility of permissive or mandatory?
fraud.
A: Based on the language used,
If no witness is available, experts may Art. 811 is mandatory. The word
be resorted to. “shall” connotes a mandatory
order.
Probate of a contested holographic will
Effect if the holographic will is lost
If contested, at least three such or destroyed
identifying witnesses should be
required. It may not be proved by the bare
testimony of witnesses who have seen
If none are available, experts may be or read such a will. The document itself
called upon, otherwise the will of the must be presented; otherwise, it shall
produce no effect.
Art. 813. When a number of
Evidence of sample handwritten dispositions appearing in a
statements of the testator cannot be holographic will are signed without
admitted because there would be no being dated, and the last
handwritten will with which to make a disposition has a signature and a
comparison. date, such date validates the
dispositions preceding it, whatever
However, a photostatic copy of the will be the time of prior dispositions.
may be allowed because here, there can
be a comparison. Rules for curing defects

Art. 812. In holographic wills, the If the last disposition is signed and
dispositions of the testator written dated
below his signature must be dated
and signed by him in order to make 1.​ Preceding dispositions which are
them valid as testamentary signed but not dated are
dispositions. validated.
2.​ Preceding dispositions which are
Effect of separate disposition not signed but dated are void.
3.​ Preceding dispositions which are
The disposition written below the not signed and not dated are
testator’s signature to the will are void, unless written on the same
considered as independent of the will date and occasion as the latter
itself. Hence, they must must be disposition.
signed and dated by the testator.
If the last disposition is signed and
If one is not dated, even if signed, that dated (done by another)
particular disposition will be void,
without affecting the validity of the 1.​ Without the testator’s
others or of the will itself. consent - The same will not
affect the previous dispositions.
An unsigned and undated postscript to 2.​ With the testator’s consent -
a holographic will is invalid as a The same as number 1, since the
testamentary disposition. latter disposition is not really
holographic or done by the
Disposition after the signature testator himself.

1.​ If dated and signed - It is valid; Art. 814. In case of any insertion,
2.​ If signed, but not dated or cancellation, erasure or alteration
vice versa - The additional in a holographic will, the testator
dispositions are void must authenticate the same by his
full signature.

Authentication of correction by full

signature
Full signature means the full or usual or
customary signature, not necessarily A: There is no need of an
the full name. ordinary or usual probate here.
What is required is that there
When not authenticated must be a proceeding here to
prove that indeed the will had
They are considered as not made, but already been probated abroad.
the will is not validated.
In other words, the rule is the
However, where the testator himself same as in proving the existence
crossed out the name of the heir of a foreign judgment.
named, and substituted the name of
another, without authentication, it was If the foreign will has not yet been
held that this did not result in probated abroad, a probate must be
making the person whose name had here. This time, proof must be
was crossed out as heir. presented that indeed the will had been
executed in accordance with the law
If what was altered was the date or the established in said foreign country.
signature, the alteration without the full
signature makes the whole will void. Art. 816. The will of an alien who is
abroad produces effect in the
Art. 815. When a Filipino is in a Philippines if made with the
foreign country, he is authorized to formalities prescribed by the law of
make a will in any of the forms the place in which he resides, or
established by the law of the according to the formalities
country in which he may be. Such observed in his country, or in
will may be probated in the conformity with those which this
Philippines. Code prescribes.

Formalities of wills executed by Formalities for wills executed by

Filipinos abroad aliens abroad

The word “authorized” makes the article An alien abroad may make a will in
permissive. Therefore, by way of accordance with the formalities
example, a Filipino, if in California, can (extrinsic validity) prescribed by the law
make a will there in accordance with the of:
forms (extrinsic validity) of:
1.​ The place of his residence or
1.​ California; domicile;
2.​ The Philippines (even if the 2.​ His own country or nationality;
Philippine form is not recognized 3.​ The Philippines;
in California) 4.​ The law of the place of the
execution.
Q: If a will is probated abroad, does
it have to be probated again in the
Philippines?
Art. 817. A will made in the probated at the death of the other as
Philippines by a citizen or subject the will of the latter.
of another country, which is
executed in accordance with the law Reciprocal or mutual wills
of the country of which he is a
citizen or subject, and which might Those that provide that the survivor
be proved and allowed by the law of of the testators will succeed to all or
his own country, shall have the some of the properties of the decedent.
same effect as if executed
according to the laws of the It is the separate wills of two persons,
Philippines. which are reciprocal in their provisions.
A will that is both joint and mutual is
Formalities for wills executed by one executed jointly by two or more
aliens in the Philippines persons, the provisions of which are
reciprocal, and which shows on its face
The rationale for allowing him to make the devises are made one in
a will following his own country’s consideration of the other.
formalities: Being a citizen thereof, he
may be more cognizant of said laws Q: Why are joint wills void?
than those in the Philippines.
A: The following are the reasons
Ex. A will executed in Manila by a why a joint will is void:
citizen of Illinois living in Manila,
and which follows the 1.​ To allow as much as
requirements in Illinois, can be possible secrecy, a will
admitted to probate in the being a purely personal
Philippines. act;
2.​ To prevent undue
Art. 818. Two or more persons influence by the more
cannot make a will jointly, or in the aggressive testator on the
same instrument, either for their other;
reciprocal benefit or for the benefit 3.​ In case of death of the
of a third person. testators at different
times, probate would be
harder;
Joint wills
4.​ It militates against the
right of the testator to
They are those which contain in one
revoke his will at
instrument the will of two or more
anytime;
persons jointly signed by them.
5.​ In case of a husband and
wife, one may be tempted
Such a will contained in a single
to kill the other.
instrument is the will of each makers,
and at the death of one may be
probated as his will, and be again
Scope of the prohibition Effects of joint wills executed
abroad
The Code does not prohibit mutual or
reciprocal wills, provided they are not Art. 819 is an expression of public
conjointly made. policy, and is clearly one exception to
the rule of lex loci celebrationis.
Reciprocal or mutual wills separately
executed are valid, provided that there NOTE: However, the prohibition refers
is no undue influence in the execution only to Filipinos. Hence, if made by
of one or the other. foreigners abroad, and valid in
accordance with Art. 816, the same
The real prohibition refers to the should be considered as valid here.
execution of a joint will, or the
expression by two or more testators of But a joint will executed in the
their wills in a single document or text Philippines by foreigners should be
and by one act. considered void because although
apparently allowed under Art. 817, still
NOTE: The law does not invalidate two Art. 818, which refers specifically to
distinct wills, independent of each joint wills, and which should be
other, which are written on the same considered as an expression of public
sheet of paper, one on each side or policy, should prevail.
even on the same side but separated by
a line between. Subsection 4. - Witnesses to Wills

Art. 819. Wills, prohibited by the

Art. 820. Any person of sound mind
preceding article, executed by
and of the age of eighteen years or
Filipinos in a foreign country shall
more, and not blind, deaf or dumb,
not be valid in the Philippines, even
and able to read and write, may be a
though authorized by the laws of
witness to the execution of a will
the country where they may have
mentioned in Article 805 of this
been executed.
Code.

GR: A will may be made by a

Ordinary wills
Filipino abroad in accordance
with the formalities prescribed by
The witnesses referred to in this and
the law in the country where the
succeeding articles are those of
will is executed.
ordinary wills. Holographic wills need
XPN: A joint will, being against
not be witnessed.
the public policy of the
Philippines
Art. 821. The following are intention of
disqualified from being witnesses returning
to a will: there
permanently
(1) Any person not domiciled in the
Philippines; The domicile of witnesses in the
Philippines is required only for wills
(2) Those who have been convicted executed in the Philippines. The
of falsification of a document, following are the reasons:
perjury or false testimony.
1.​ Availability of the witnesses when
the will is probated, if the same
Any person not domiciled in the
is within the Philippines; and
Philippines
2.​ Witnesses domiciled in the
Philippines are more likely to
The law requires that the witness be
know the testator and be able to
domiciled in the Philippines. Mere
testify on his mental condition at
residence is not enough.
the time of execution of the will.
The domicile of natural persons is the
When the will is executed in a foreign
place of their habitual residence. (Art.
country, it seems absurd to require
50, CC)
that the witnesses be domiciled in
the Philippines.
DOMICILE RESIDENCE
An individual’s
NOTE: No particular citizenship is
permanent home, a
place to which, required for witnesses to wills. Hence,
whenever absent even aliens or foreigners may be
for business or witnesses, provided that they are
pleasure, one domiciled in the Philippines.
intends to return, It implies the
and depends on factual Those who have been convicted of
facts and relationship of falsification of a document, perjury,
circumstances in an individual to or false testimony
the sense that they a certain place.
disclose intent.
It is presumed that such a witness
It is the physical
cannot be relied upon for truthfulness.
It includes: presence of a
person in a Conviction for any other crime,
1.​ The fact of given area, however, is not a disqualification.
residing or community, or
physical country. Art. 805 requires that the witnesses be
presence in credible or competent; that is, one
a fixed who is qualified to testify in court, not
place; and disqualified by any natural, moral, or
2.​ Animus legal cause.
manendi or
the
The notary public before whom the Scope of disqualification merely a
will was acknowledged cannot be disqualification to inherit
considered as the third instrumental
witness, since he cannot acknowledge This article does not disqualify a
before himself having signed the will. devisee or legatee, or the spouse,
parent or child of such devisee or
Art. 822. If the witnesses attesting legatee, from becoming a witness to a
the execution of a will are will.
competent at the time of attesting;
their becoming subsequently If he is credible and not disqualified
incompetent shall not prevent the under Art. 821, he is a competent
allowance of the will. witness; but the devise or legacy in
his favor, or in favor of his spouse,
Maria executes her will with three parent or child, will be void, unless
witnesses: Ervin, Osten, and Mond. At there are three other witnesses
the time of signing, all three are competent to testify.
competent adults. Later, Ervin suffers a
severe stroke, rendering him mentally Art. 824. A mere charge on the
incapacitated. When Maria passes away estate of the testator for the
and the will is presented for probate, payment of debts due at the time of
Ervin’s incompetency is raised as a the testator's death does not
challenge. However, because Ervin was prevent his creditors from being
competent at the time of attesting the competent witnesses to his will.
will, his subsequent incapacity does
not prevent the court from allowing Mr. Bañeras owes his friend, Mr. Olitin,
the will, as long as the other a significant sum of money. Before his
requirements for due execution are death, Mr. Bañeras executes a will
met. where he explicitly states that his estate
will be used to settle all outstanding
Art. 823. If a person attests the debts, including the one owed to Mr.
execution of a will, to whom or to Olitin. Then, Mr. Olitin, along with two
whose spouse, or parent, or child, a other individuals, serves as a witness to
devise or legacy is given by such the will.
will, such devise or legacy shall, so
far only as concerns such person, Later, when the will is presented for
or spouse, or parent, or child of probate, some heirs argue that Mr.
such person, or any one claiming Olitin is an incompetent witness due to
under such person or spouse, or his financial interest in the estate.
parent, or child, be void, unless
there are three other competent However, under Article 824, the court
witnesses to such will. However, recognizes that the mere charge on the
such person so attesting shall be estate for debt payment does not
admitted as a witness as if such disqualify Mr. Olitin, as his interest is
devise or legacy had not been made based on a pre-existing debt, allowing
or given. him to be considered a competent
witness.
Subsection 5. - Codicils and Art. 827. If a will, executed as
Incorporation by Reference required by this Code, incorporates
into itself by reference any
Art. 825. A codicil is supplement or document or paper, such document
addition to a will, made after the or paper shall not be considered a
execution of a will and annexed to part of the will unless the following
be taken as a part thereof, by which requisites are present:
disposition made in the original
will is explained, added to, or (1) The document or paper referred
altered. to in the will must be in existence at
the time of the execution of the will;​
Codicil and subsequent will (2) The will must clearly describe
and identify the same, stating
After a testator has already made a will, among other things the number of
a subsequent instrument mortis causa pages thereof;​
may either be a codicil or a new will. (3) It must be identified by clear
and satisfactory proof as the
document or paper referred to
CODICIL NEW WILL
therein; and​
If the later
If the subsequent instrument (4) It must be signed by the testator
instrument makes and the witnesses on each and
explains the dispositions every page, except in case of
original will or independent of voluminous books of account or
alters or adds to it. those in the inventories.
original will,
It is always without Incorporation by reference
related to some explaining or
prior will. modifying such It is an exception to the rule that if an
original will.
instrument is not executed with all the
formalities of a will, it cannot be
Art. 826. In order that a codicil may admitted to probate.
be effective, it shall be executed as
in the case of a will. If a will duly executed and witnessed
according to the requirements of the
The same rules for the validity statute, incorporates in itself by
(extrinsic) of a will are applicable to reference any document or paper not so
codicils. executed and witnessed, whether such
paper referred to be in the form of a
will or a codicil, or of a deed or
indenture, or of a mere list or
memorandum, the paper so referred to,
if it was in existence at the time of the
execution of the will and is identified by
clear and satisfactory proof as the paper
referred to therein, will take effect as
part of the will and be admitted to Subsection 6. - Revocation of Wills and
probate as such. Testamentary Dispositions

To establish a separate writing as part Art. 828. A will may be revoked by

of a will by incorporation, three things the testator at any time before his
must appear on the face of the will and death. Any waiver or restriction of
two others must be shown by extrinsic this right is void.
proof:
Revocability of wills
On the face of the will
Revocability is an inseparable quality of
1.​ There must be a distinct
every will. Wills by their very nature are
reference to such writing, so
ambulatory and inoperative till the
explicit, it has been held, as to
death of the testator.
identify it beyond doubt; but
much less has often been held
A provision in the instrument declaring
sufficient, and parol evidence is
it irrevocable, and contract for valuable
of necessity received to identify
consideration not to revoke are alike
the writing;
unavailing to prevent revocation.
2.​ The reference must indicate that
the writing has already been
The law acknowledges that
made, that is, must speak of it
circumstances and relationships
as then existing. It is not
change, and a person’s final wishes
enough that the writing was in
should be determined at the time of
fact made before the will; the will
their death, not at some point in the
must speak of it as then made;
past.
3.​ It can be given effect only in
case, and to the extent that,
Art. 829. A revocation done outside
such appears from the face of
the Philippines, by a person who
the will to have been the wish
does not have his domicile in this
of the testator.
country, is valid when it is done
according to the law of the place
Extrinsic proof
where the will was made, or
according to the law of the place in
1.​ It is the very writing referred to
which the testator had his domicile
in the will;
at the time; and if the revocation
2.​ It was in fact made before the
takes place in this country, when it
will was executed.
is in accordance with the provisions
of this Code.
It is clear that if a writing made
afterwards could be received, the
John, a British citizen, created a will in
testator might create in himself a power
London while temporarily residing
of disposing of his property by will
there. Later on, John moves to France
without complying with the statute on
and decides to revoke his London will
wills.
while living in Paris.
terms, that reference has no legal
Art. 829 dictates that the revocation effect.
would be valid in the Philippines if it
complies with either British law (where Ana must re-state the contents of the
the will was made) or French law (John’s 2020 will in her 2025 will for it to be
domicile at the time of the revocation). valid and binding.

If John, instead, happened to travel to Art. 836. The execution of a codicil

Albay and revoked his London will while referring to a previous will has the
he was here, the revocation would only effect of republishing the will as
be valid if it followed the specific modified by the codicil.
procedures for will revocation outlined
in the Civil Code. Codicil

Subsection 7. - Republication and It is a separate legal document that

Revival of Wills modifies, explains, or supplements a
will.
Republication is an act of the testator
of reestablishing a will which is void as If a testator executes a codicil referring
to form or which had been revoked. to a prior will, the prior will is
republished but only as modified
Revival is the restoration of validity of by the codicil.
a previously revoked will.
Requisite of republication
Art. 835. The testator cannot
republish, without reproducing in a First will is valid, but later revoked
subsequent will, the dispositions
contained in a previous one which The codicil referring to the previous will
is void as to its form. is sufficient republication. Here, there
is no need to reproduce the
Requisite of republication provisions of the will. It is effective
as of the date of the codicil.
Will is void as to its form
Art. 837. If after making a will, the
The new will must reproduce or copy all testator makes a second will
the provisions of the first will. The expressly revoking the first, the
effect of the will is the date of the revocation of the second will does
execution of the new will, not the old. not revive the first will, which can
be revived only by another will or
Ex. Ana made a will in 2020, but it was codicil.
invalid because it lacked the required
number of witnesses. If she makes a (You cannot revoke and revive a will in a
new will in 2025 and merely refers to single document.)
her 2020 will without reproducing its
Express revocation
may be necessary for the allowance
The testator made a will. Subsequently, of wills on petition of the testator.
he makes another will expressly
revoking the first. Then he makes a Subject to the right of appeal, the
third will which revokes the second will. allowance of the will, either during
the lifetime of the testator or after
The revocation of the second will his death, shall be conclusive as to
does not revive the first. its due execution.

Implied revocation Probate

The testator made a will. Subsequently, It is the act or process of proving before
he makes another will, impliedly a competent court the due execution of
revoking the first. Then, he makes a an instrument purporte to be the last
third will which revokes the second. will and testament of a deceased person
for its allowance by the competent
The revocation of the second will court, for official recognition and the
revives the will by operation of law. carrying out of its provisions insofar as
they are in accordance with law.
There is implied revocation by reason of
inconsistent provisions. The probate of a will is conclusive as to:

Dependent relative revocation (Art. 832) 1.​ Execution of the will;

2.​ Testamentary capacity of the
It will be presumed that the testator testator.
preferred the first will to be operative.
Two Kinds of Probate
Subsection 8. - Allowance and
Disallowance of Wills 1.​ Ante Mortem Probate
2.​ Post-Mortem Probate
Art. 838. No will shall pass either
real or personal property unless it ANTE MORTEM PROBATE
is proved and allowed in
accordance with the Rules of Court. 1.​ Minimizes fraud, intimidation, or
undue influence in the execution
The testator himself may, during of a will;
his lifetime, petition the court 2.​ Enables the testator to correct at
having jurisdiction for the once any failure to comply with
allowance of his will. In such case, the legal requirements.
the pertinent provisions of the
Rules of Court for the allowance of NOTE: Testators can still revoke their
wills after the testator's a death will although already probated during
shall govern. their lifetime.

The Supreme Court shall formulate

such additional Rules of Court as
Art. 839. The will shall be threatened into signing a will, it
disallowed in any of the following is void.
cases: 4.​ Undue influence - If the testator
was pressured or manipulated
(1) If the formalities required by into making the will, it can be
law have not been complied with; voided. There is undue influence
when the testator does
(2) If the testator was insane, or something because of fear or
otherwise mentally incapable of desire from any feeling that he is
making a will, at the time of its unable to resist.
execution; 5.​ Fraud - If the testator was
tricked into signing a will (e.g.,
(3) If it was executed through force believing it was another
or under duress, or the influence of document), it is void.
fear, or threats; 6.​ Mistake - If the testator signed
the document without realizing it
(4) If it was procured by undue and was a will, it is void.
improper pressure and influence,
on the part of the beneficiary or of NOTE: The grounds for disallowance of
some other person; wills in Art. 839 are exclusive. No
other grounds to disallow a will can be
(5) If the signature of the testator raised.
was procured by fraud;
Art. 830. No will shall be revoked
(6) If the testator acted by mistake except in the following cases:
or did not intend that the
instrument he signed should be his (1) By implication of law; or
will at the time of affixing his
signature thereto. (2) By some will, codicil, or other
writing executed as provided in
Grounds for disallowance of a will case of wills; or

1.​ Lack of formalities - If the will (3) By burning, tearing, cancelling,

does not comply with legal or obliterating the will with the
requirements (e.g., missing the intention of revoking it, by the
testator’s signature, lacking testator himself, or by some other
witnesses), it is void. person in his presence, and by his
2.​ Insane or mental incapacity - express direction. If burned, torn,
A testator must be of sound cancelled, or obliterated by some
mind when making a will. The other person, without the express
Court may invalidate if proven direction of the testator, the will
that the testator does not have may still be established, and the
mental capacity to understand its estate distributed in accordance
content. therewith, if its contents, and due
3.​ Force, duress, fear, or threats execution, and the fact of its
- If a testator was forced or unauthorized destruction,
cancellation, or obliteration are 2.​ Some other person in the
established according to the Rules testator’s presence;
of Court. 3.​ By the testator’s express
direction
Manner of revocation

GR: No will shall be revoked.

XPNs:
1.​ By implication of law;
2.​ By burning, tearing,
cancelling, or obliterating
the will with the intention
to revoke it;
3.​ By some will, codicil, or
other writing executed

By implication or operation of law

When certain acts or events take place

after the execution of the will, which
nullify or render inoperative either the
will itself or some testamentary
disposition.

1.​ Preterition of compulsory heirs in

the direct line (Art 854);
2.​ When the heir, legatee, or
devisee commits an act of
unworthiness (Art. 1031, 1032);
3.​ When the thing bequeathed or
devised is lost, alienated, or
transformed (Art. 957);
4.​ In cases of legal separation,
annulment of marriage, and
declaration of nullity of marriage,
with respect to the property
given to the guilty spouse (Arts.
43, 50 of FC)

By burning, tearing, cancelling, or

obliterating the will with the intention
of revoking it

The will is effectively destroyed by:

1.​ The testator himself;