Notes And Cases On SUCCESSION

Based on Lectures given by: Prof. Ruben Ba ane and Prof. Arace i Baviera Co!"i ed and Edited by Rode A. #o ina UP La$ Batc% &''(
This work is a compilation of Prof. Ruben Balane's lectures in succession, by his students both in the UP College of aw and in the !teneo aw "chool. ectures of Prof. Ba#iera in Ci#il aw Re#iew $"uccession% ha#e also been included in this work. "pecial thanks to ouella &ra for lending me her magic notes on "uccession as compiled by students of the !teneo aw "chool, to ianne Tan for lending me her diskette in "uccession containing the lectures of Prof. Ba#iera and to the late 'duardo Balangue for lending me his magic notes on "uccession as compiled by students of the UP College of aw. This work is dedicated to Class !, UP aw Batch ())*, to which & belong. -- RAM _______________

IN)RO*UC)ION
Conce"t.++ Succession is the last mode of acquiring ownership. It is an independent mode of acquiring ownership. Re,uisites of Succession: (1) eath of the predecessor! (") #$istence and capacit% of the successor! (&) 'ro(ision of the law or pro(ision of a will granting the right of succession! ()) Acceptance *% the successor. -: Is tradition .de ivery/ re,uired for o$ners%i" to transfer0 A+ ,o. -wnership is transferred *% succession. not *% an% other mode. Ety!o ogy.++ Succession is deri(ed from " /atin words+ sub. meaning under (e.g.. an underling. a su*ordinate. if a plane tra(els at a su*sonic speed or fl% *elow opposite-- su*sonic) and cedere. meaning to gi(e. to pass. Succession. therefore. is a passing under. It gi(es the idea of the nature of succession as originated from Roman /aw. 0h% do the Romans call it a passing under1 2ec. of the fiction in Roman /aw that a personalit% occupies a space. that is. a legal personalit% is permanent. A permanent fi$ture *ut the occupant will go awa%. And it is the successor who will occup% the

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

space %ou left (acant. 4here is alwa%s what %ou call personalitas. 5Sound through5 li6e a pla%. where %ou wear a mas6. and the one *ehind the curtain is sounding through. that is. some*od% is reall% tal6ing *ehind %ou. 4his. *% analog% is. succession. Persona means 5%ou.5 the character. Personalita or personalit% w7c is alwa%s there. and there is or there will alwa%s *e an occupant. who comes and goes! it ma% change the character. the person passes under. 0hat is *ehind all this1 'ersonalit% ne(er dies. 0e are *ut dust and shadows *ased on the realit% of death. 0h% do we ha(e to de(ise this fiction1 0h% the law on succession1 4he /aw on succession has (arious underpinnings in Roman /aw. that is. first. the (ague idea of after life. li6e the ideas of 8orace -- state of good in the #lipian fields! second. that the law de(elops *ased on conditions of societ%. -ne of the most *asic desire of man is the desire for immortalit%. 8ow. 0hen. 4o 0hom. In 0hat proportion are the% transmitted -- Succession. 2ASIS -9 48# /A0 -, S:33#SSI-,+ 1. Succession pro(ides the (ehicle for satisf%ing %our %earning and longing for immortalit%. It satisfies or consoles %ourself that something in %ou li(es fore(er and this is %our personalit%. -thers usuall% lea(e something li6e paintings. *oo6 of poems. statue so that the% will *e remem*ered fore(er. e.g.. 8orace *% Sha6espeare. ". 3oncept of pater familias. iligence of pater familias. Pater familias means head of the famil%. 4he *asic unit of Roman societ%. It is he who managed and e$ercised authorit% o(er his children. a*solute control o(er his wife. In Roman law. a man;s wife is his child. It is he who is the guardian of the famil% gods. It is a position that must *e occupied e(er% time. It is unthin6a*le to *e otherwise. -nce he dies. it is a*solutel% necessar% not onl% in religion that he is to *e replaced immediatel%. 4his is indispensa*le. 4hese underpinnings are gone now. 4oda%. succession is nothing *ut a mode of acquiring ownership. 0h%1 2ecause %ou do not ha(e the fiction to ha(e succession. *ec. of the spread of 3hristianit% w7c too6 the place of those %earnings that it is *elie(ing in <od and life after death. ,o more %earnings for immortalit%. unless %ou do not *elie(e in the teachings of 3hristianit%. Also. the concept of pater familias is no longer applica*le *ec. of parental authorit% w7c restricted the authorit% of the head of the famil%. 0e no longer ha(e sla(es. a*solute control o(er children. etc. 2ut old *eliefs do not die easil%. Some pro(isions of the law on succession are influenced *% these underpinnings. /i6e. 5heirs are the continuation of the personalit% of the decedent.5 Another is+ when a condition is imposed upon the su*stitute. does the su*stitute ha(e to fulfill the condition1 All of these are residual elements of Roman /aw. *efinition of Succession.++ Succession in a =uridical sense is the su*stitution of one person for another in a determina*le relationship or a su*rogation of one person *% another in a =uridical situation. (Manresa.) Succession is the su*stitution of a person to the determina*le legal relationship of another. (3astan.) 3astan;s definition is *etter. (2alane.) P1ILIPPINE LA2 ON SUCCESSION .Based on t%e ecture given by 3BL Reyes./ #(er% person during his lifetime is at the center of a num*er of =uridical relation flowing

'A<# "

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

from personalit%. Some of these legal relations are permanent. some are transitor%. Some of these relations are+ paternit% and filiation. marriage and maternit%. mem*ership of the *ar. student of :'. etc.. w7c other persons do not ha(e. 4here are transitor% relations. and e$amples of these are one when *ought a *ottle of 3o6e! lease of an apartment unit! a mortgage! a contract of partnership! when one rides a *us. etc. 0hen a person dies. personalit% is e$tinguished. Some of these =uridical relations will die w7 %ou-- intuitu personae++ SSS. <SIS-- if the% die w7 %ou. no pro*lem. *ut some of them sur(i(e. e.g.. land. sa% a thousand hectares. If it is onl% a *all pen left *% the decedent. it is not a *ig pro*lem. 2ut what if the decedent left a *ig tract of land. or there is a contract of sale w7c transfers ownership *et. the decedent and third parties. >ou ha(e to set a de(ise. >ou can not lea(e them hanging in the air. >ou ha(e to de(ise a set of rules to determine the how. when. to whom. to what e$tent these rights will *e transmitted. 4he law w7c go(erns them is succession. And that is all on succession. e(er%thing is footnotes. *I44EREN) 5IN*S O4 SUCCESSION A. 2% the moment of transmission+ 1. mortis causa++ ta6es place *% (irtue of death ". inter #i#os++ ta6es place independentl% of death during the lifetime of the parties (now called onation inter #i#os.) 2. #$tent of rights in(ol(ed+ 1. Uni#ersal-- this is (er% catch%- it in(ol(es the entire estate or fractional or aliquot or undi(ided part of the estate. e.g.. I gi(e %ou 17" of m% estate. ". Particular, partial.-- succession to specific items a. legac%-- specific personal prop.. e.g.. I gi(e %ou m% car *. de(ise-- specific real prop.. e.g.. I gi(e to < m% fishpond in /aguna. 3. As to cause+ 1. Compulsory.-- that effected *% operation of law to forced heirs e(en if not in a will! succession to the reser(ed portion7 legitime ". Testamentary.++ *% will &. &ntestate or legal.++ succession in default of a will! su*ordinate to testamentar% succession ). -i.ed.-- com*ination of the a*o(e. ?. Contractual.-- #.g.. donation propter nuptias *% one to another of future prop. w7c ta6es effect after death. 0h% contractual1 2ec. of the transfer of prop. is not *% (irtue of a will *ut *% contract. So it is go(erned *% the law on contracts. 8ence. it must *e go(erned *% the Statute of 9rauds. It must *e in writing to *e enforcea*le. . As to parties to succession+ 1. ecedent. transferor. causante, acutor, de cuius ". Successor. transferee. causa habiente #. As to terms+ 1. 4estator.-- decedent left a will ". Intestate.-- decedent did not lea(e a will &. 8eir.-- one who succeeds *% uni(ersal title or to a share of the estate ). e(isee.-- one who succeeds *% particular title to real prop.

'A<# &

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

?. /egatee.-- one who succeeds to a specific personal prop. E e!ents of Succession .#anresa./: 1. 3hange of su*=ect (cambio de suheto.)-- ownership is transferred from deceased to heir (su*=ecti(e change.) ". Identit% of -*=ect (identidad de ob/ecto)-- same prop. is in(ol(ed. onl% the owner is changed. 4he right is the same (o*=ecti(e identit%.) I!"ortant Princi" es of Succession .$%ic% "er!eates t%e entirety of Succession/: 1. -ortis Causa.++Succession can not ta6e place while the owner is ali(e. 4he heir7 successor has a mere e$pectanc% right to the prop. of the decedent. during the lifetime of the latter. ". Interest of the famil% ma% o(erride the will of the decedent *ec. of compulsor% heirs. 4here is a legitime reser(ed for the famil%. A will cannot impair the legitime. &. 4he estate passes or de(ol(es to the famil% unless the decedent e$pressl% orders otherwise in a will. 9amil% co(ers spouse. ascendants. descendants. and collateral relati(es. ). 4he famil% can not *e entirel% depri(ed of the estate *ec. of the s%stem of legitime. ?. 0ithin the famil%. heirs of equal degree7 pro$imit% inherit in equal shares. 'resumption of equalit%. 4his is onl% the general rule. 4here are e$ceptions. @. 4he State has a share in the inheritance through ta$es. A. 4he heirs are not lia*le for the de*ts of the estate *e%ond their share in the inheritance. #state is lia*le for the de*ts left *% the decedent. e*ts are to *e deducted *efore the heirs can get their shares. 'rocedure+ 3ollect all assets. deduct de*ts. then partition the shares. :p to what e$tent1 :p to all its assets. If the estate is Bero *alance. the heirs get nothing. :nder the modern ci(il law. if the decedent left more de*ts than assets. it will not change or affect %our status an%wa%. *ut not w7 the decedent;s creditors-- the% ha(e to *eware-- ca#eat creditor. Basis of t%e La$ on Succession.++ Some sa% it is the law on propert% w7c seems to *e the *asic attitude of the 3ode. -thers sa% succession is a law on persons *ec. of the compulsor% heirs. 8ow can %ou e$plain that1 Is there some lin6 *et. the law on succession and propert%1 4here is. 3astan said that law on succession is *oth law on persons and propert%. 8owe(er. in a pure testamentar% succession. the law on persons do not come to pla%. Sa%. a will gi(ing :' a propert%. 4his is more on the law of propert%. 4his is the ecclectic theor% of 3astan. #a6or C%anges in t%e Ne$ Civi Code on Succession: 1. Allowance of holographic wills (Art. C1D.) It gi(es greater freedom to the decedent to choose in what form he can dispose *% will his estate. 8olographic will is not a no(elt% *ut a re(i(al. 4his was allowed in the Spanish times *ut was a*rogated during the American regime. It was onl% restored under the ,33. ". Impro(ement in the successional position of the sur(i(ing spouse. :nder the -33. the sur(i(ing spouse had a right of usufruct onl%. :nder the ,33. the sur(i(ing spouse is gi(en full ownership and is a compulsor% heir. 4he share is (aria*le that it is so *ewildering. &. A*olition of the right of me/ora or *etterment (the right of the parent to gi(e a child more than the other.) 4his is *asicall% a portion of the legitime. 17&. 9reedom is gi(en to the testator as to who among his children he will gi(e the 17&. 4his s%stem was ne(er utiliBed *ec. it was ne(er understood *% the people.
'A<# )

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

). A*olition of the reser#as and re#ersiones. 4he ,33 restored reser#a troncal, re#ersion adopti#a (under ' @D&.) ?. <ranting successional rights to7 for spurious children-- illegitimate other than natural. 4his is one of the re(olutionar% changes in the ,33. :nder the -33 onl% legitimate children ha(e successional rights. ,33 li*eraliBed it *% granting successional rights to spurious children. @. <reater facilit% in the pro*ate of wills. 0h%1 2ec. of the allowance of ante mortem pro*ate. that is. during the lifetime of the testator. ,ow. pro*ate ma% *e post+mortem or ante mortem. A. 4he application of the prohi*ition outlined in Art. A&E to succession. this is *% (irtue of Art. 1D&C. Art. A&E pro(ides that+
Artic e 78'. )%e fo o$ing donations s%a be void: .&/ )%ose !ade bet$een "ersons $%o $ere gui ty of adu tery or concubinage at t%e ti!e of t%e donation9 .:/ )%ose !ade bet$een "ersons found gui ty of t%e sa!e cri!ina offense; in consideration t%ereof9 .8/ )%ose !ade to a "ub ic officer or %is $ife; descendants and ascendants; by reason of %is office. In t%e case referred to in No. &; t%e action for dec aration of nu ity !ay be broug%t by t%e s"ouse of t%e donor or donee9 and t%e gui t of t%e donor and donee !ay be "roved by "re"onderance of evidence in t%e sa!e action.

C. Increase of the free portion-- corollar% to the a*olition of the me/ora E. /imitation of the fideicommisar% su*stitution to one degree (*efore. two degrees) 1D. Intestate succession is narrowed from si$th degree to fifth degree. 11. A*olition of the institution under pupilar and e/emplar (su*stitution.) 1". Allowance of lifetime pro*ate.

Areas in Succession Affected by t%e A!erican Code: 1. ". &. ). ?. @. A. Rules in interpretation.-- Arts. ACC-AE" Rules on formal requirements of a will.-- Arts. CD)-CDE Rules go(erning witnesses to wills.-- Arts. C"D-C") Rules on repu*lication and re(i(al of wills.-- Arts. C&?-C&@ Rules on re(ocation.-- Arts. C"E-C&1 Rules on allowance and disallowance of wills.-- Arts. C&C-C&E Rules on 4estamentar% capacit%.

3hapter 1 <ENERAL PRO=ISIONS

'A<# ?

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

Art. 77>. Succession is a !ode of ac,uisition by virtue of $%ic% t%e "ro"erty; rig%ts and ob igations to t%e e?tent of t%e va ue of t%e in%eritance of a "erson are trans!itted t%roug% %is deat% to anot%er or ot%ers eit%er by %is $i or by o"eration of a$. 2alane+ &. Succession is a !ode of ac,uisition.++ 'ropert%. rights. and o*ligations are transmitted! those w7c are not e$tinguished *% death of the decedent is inheritance. Succession is *ut a process of transmission. Succession is a mode of acquisition of inheritance transmitted to the heirs upon the death of the decedent through a will or *% operation of law. :. )$o e e!ents of Succession.++ (1) identit% of o*=ects! (") change of su*=ects. 8. Ru e.++ 4he estate of the decedent pa%s for the o*ligations of the decedent. 0hat is left is gi(en to the heirs. >. Connect Art. 77> $@ Art. 77(; su"ra. 9or mone% de*ts+ If not paid in settlement proceedings. heirs could *e lia*le to the e$tent of what the% recei(ed 9or o*ligations+ #.g.. lessee-lessor-- o*ligation to 6eep the lessee in the peaceful possession is transmitted to the heirs. A. Pro"erty and Rig%ts+ 'assed on to the decedent;s successors (. Ob igations: a. #onetary.++ <eneral rule+ 4he estate pa%s for them *efore the estate is partitioned #$ception+ Al(areB case. 'redecessor fraudulentl% disposed of the prop. during litigation. S3 held that heirs cannot escape lia*ilit% for their father;s transactions w7c ga(e wa% to this claim for damages. #(en though the% did not inherit the prop.. the monetar% equi(alent thereof was de(ol(ed into the mass of the estate w7c the heirs inherited. 8ereditar% estates are alwa%s lia*le in their totalit% for the pa%ments of the de*ts of the estate. 0hate(er pa%ment made *% the estate is ultimatel% a pa%ment *% the heirs *ec. these pa%ments decrease their inheritance. b. Non+!onetary.++ 4ransmitted to the heirs. Art. 77A. In t%is )it e; BdecedentB is t%e genera ter! a"" ied to t%e "erson $%ose "ro"erty is trans!itted t%roug% succession; $%et%er or not %e eft a $i . If %e eft a $i ; %e is ca ed t%e testator. 2alane+ #(er% testator is a decedent *ut not all decedents are testators. :nder the American s%stem. a decedent who did not lea(e a will is called 5intestate.5 2ut this is not true in the 'hils. Art. 77(. )%e in%eritance inc udes a t%e "ro"erty; rig%ts and ob igations of a "erson $%ic% are not e?tinguis%ed by %is deat%. 2alane+ 4ransmissi*le propert%. rights and o*ligations constitute inheritance. <uide ines on $%et%er rig%ts@ ob igations are e?tinguis%ed by deat%:

'A<# @

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

1. 'ropert%. rights and o*ligations which are purel% personal are e$tinguished *% the death of the decedent. 4he% are not part of the inheritance. e.g.. mem*ership in the *ar or right of consortium w7 %our wife. ". 4hose w7c are purel% patrimonial. <eneral rule+ 4he% form part of the inheritance. e.g.. credits. #$ception+ Mone% de*ts.-- o*ligation to pa% is not transmissi*le. although purel% patrimonial *ec. the estate pa%s for it. &. 4hose o*ligations transmitted to the heirs w7c are not monetar%. e.g.. o*ligation of a lessor-- patrimonial. 2 leased to 3 a parcel of land for a term of & %ears. After " %ears. 2 died. 4he heirs of 2 are *ound *% the lease contract. -*ligation as lessee and *ailee are transmissi*le. Art. 777. )%e rig%ts to t%e succession are trans!itted fro! t%e !o!ent of t%e deat% of t%e decedent. 2alane+ 1. 4his article literall% means that the 5decedent has the right to the succession which is transmitted upon his death.5 4his is illogical *ec. the decedent does not ha(e rights to the succession. 4o impro(e the pro(ision. change the words 5succession5 to 5inheritance5 (the right to succeed is an inchoate right) and the (er* 5transmitted5 to 5*ecome (ested.5 :. 4our E e!ents of Succession: 1. eath ". 0ill or -peration of law &. #$istence and capacit% of the successor ). Acceptance. &. 4his pro(ision is the heart and soul of succession. 4he most essential pro(ision of the law on succession. ). Rights to succession (est at the moment of death. not transmitted. 4he right should *e made effecti(e from the moment of death. 4his is so *ec. the rights to succession *efore death are mere inchoate. 2ut from the moment of death. those inchoate rights *ecome a*solute. Rights to succession are (ested from the moment of death. not upon the filing of petition for testate7 intestate proceedings. not upon the declaration of heirship or upon settlement of the estate. 4he rights to succession are automatic. 4radition or deli(er% is not needed. 9iction of the law is that from the moment of the death of the decedent. the right passes to the heirs. uring the lifetime of the predecessor. rights to succession are a mere e$pectanc%. 8ence. no contract can *e legall% entered into regarding the e$pected inheritance. 0hen a heir recei(es his inheritance. he is deemed to ha(e recei(ed it at the point of death. this is so *% legal fiction to a(oid confusion. ?. 3AS#S+ :son (. el Rosario.-- :pon the death of the hus*and *efore the ,33. the rights of the wife to the inheritance were (ested. So the rights of the illegitimate children under the ,33 to inherit can not pre=udice the (ested rights of the wife. 0e ha(e to appl% the -33 *ec. at the time of his death. it is the -33 w7c go(erned the law on succession. 9or the determination of successional rights. the law at the point of death should *e the one applied.

'A<# A

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

2or=a (. 2or=a.-- 4he right to inherit is (ested at the moment of death. #(en if she did not 6now how much she was going to inherit. she could still dispose of her share in the inheritance. Said right to the share was hers from the moment of death and she could do whate(er she wanted w7 her share. e(en sell it. 2onilla (. 2arcena.-- >ou do not need a declaration of heirship whether testate or intestate. (oluntar%. etc. 4he rights of the heirs to the prop. (est in them e(en *efore =udicial declaration of their *eing heirs in the testate proceedings. An action to quiet title is not e$tinguished *% the death of the decedent. it *eing a patrimonial right. 8ence. the heirs ha(e the right to *e su*stituted to the action e(en *efore their ha(ing declared as heirs. FimeneB (. 9ernandeB.-- 3arlos died in 1E&@. *efore the effecti(it% of the ,33. As such. his illegitimate child cannot inherit from him. As such. title to the land *elongs to the cousin who inherited the land w7 3arlos. . Art. 77C. Succession !ay be: .&/ )esta!entary9 .:/ Lega or Intestate9 or .8/ #i?ed. 2alane+ 1. 4estamentar% (Art. AAE.)-- designation of an heir in a will ". /egal or Intestate .-- w7o a will or the will is in(alid &. Mi$ed (Art. ACD.)-- partl% *% will and partl% *% operation of law ). 3ompulsor%.-- Succession to the legitime *% a forced heir. Art. 77'. )esta!entary succession is t%at $%ic% resu ts fro! t%e designation of an %eir; !ade in a $i e?ecuted in t%e for! "rescribed by a$. 2alane+ 8eir includes de(isees and legatees. Art. 7CD. #i?ed succession is t%at effected "art y by $i and "art y by o"eration of a$. Art. 7C&. )%e in%eritance of a "erson inc udes not on y t%e "ro"erty and t%e trans!issib e rig%ts and ob igations e?isting at t%e ti!e of %is deat%; but a so t%ose $%ic% %ave accrued t%ereto since t%e o"ening of t%e succession. 2alane+ It is *etter to scrap Art. AC1. It has no significance. #(en w7o it. those w7c accrue after death will still *elong to the heirs. #.g.. A has a son. G. A dies in 1ECC. Inheritance is a mango plantation. In 1EED. there is a crop. Is it part of the inheritance1 1. According to Art. AC1. %es. 4his is inconsistent w7 Art AAA *ec. succession occurs at the moment of death. Art. AC1 implies a second succession.

'A<# C

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

". /egal concept.-- ,o. G owns it through accession and not succession. 9ruits are no longer part of the inheritance. It *elongs to the heir *ec. of ownership of the land he recei(ed at the moment of death. (Art. AAA.) 4hose w7c ha(e accrued thereto after death do not comprise the inheritance *ut the% accrue *% (irtue of ownership (accretion.) Art. 7C:. An %eir is a "erson ca ed to t%e succession eit%er by t%e "rovision of a $i or by o"eration of a$. *evisees and egatees are "ersons to $%o! gifts of rea and "ersona "ro"erty are res"ective y given by virtue of a $i . 2alane+ 4he definitions gi(en in this article are not good. 4he definitions contained in the Spanish 3i(il 3ode were *etter. An heir succeeds *% uni(ersal title. e(isee or legatee succeeds *% particular title. According to 3astan. an heir is one who succeeds to the whole (uni(ersal) or aliquot part of the estate. e(isee or legatee is one who succeeds to definite. specific. and indi(idualiBed properties. #.g.. I *equeathed 17" of m% fishpond in 'ampanga to A. Is the successor an heir. legatee or de(isee1 A de(isee. the prop. *eing a specific real prop. -: Is it i!"ortant to distinguis% bet. %eir devisee and egatee0 A+ 2efore. %es. 4he heir inherited e(en de*ts of the decedent. e(en if it e$ceed the (alue of the propert%. e(isees or legatees were lia*le for de*ts of the decedent onl% up to the e$tent of the (alue of the prop. ,ow. ,o. #$cept in one instance. in case of preterition in Art. C?). If read carefull%. institution of heir is annulled while de(ise and legac% are not. so long as there is no impairment of the legitime. Art. 7C: is not a $orEing definition.++ Someone who is a de(isee (succeeded *% a particular title) can fit into the definition of an heir (succeeds to a fractional7 aliquot7 undi(ided part of the estate.) and (ice (ersa.

'A<# E

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

C%a"ter : )ES)A#EN)ARF SUCCESSION Section & 2ILLS Subsection & 2ILLS IN <ENERAL Art. 7C8. A $i is an act $%ereby a "erson is "er!itted; $it% t%e for!a ities "rescribed by a$; to contro to a certain degree t%e dis"osition of %is estate; to taEe effect after %is deat%. 2alane+ *efinition of $i : 1. 5'erson.5-- refers onl% to natural persons. ". 5'ermitted to control to a certain degree.5-- wh% certain degree1 2ec. compulsor% heirs cannot *e depri(ed of their legitimes. If there are no compulsor% heirs. the power of the decedent to dispose of his estate is a*solute. If there are compulsor% heirs. he onl% has a limited degree to dispose. 4hat is wh% the will can onl% co(er the disposa*le portion of the estate (free portion.)

'A<# 1D

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

&. 3omment+ . a. An 5act.5-- is too general! *etter 5document5 *ec. a will must *e in writing *. 5After5-- *etter 5upon.5 C%aracteristics of 2i s: 1. 'urel% personal act. (Arts. AC)-ACA.)-- non-delega*le! personal participation of the testator is required. ". 9ree act.-- it means w7o fraud. (iolence. deceit. duress. or intimidation. It is (oluntar%. ,o (itiated consent. &. ispositi(e of propert%.-- If it does not. it will *e useless. 2ut as far as the law is concerned. it can *e pro*ated *ut a useless e$pense. It is onl% (alid as to form and nothing else. #$ceptions+ a. when a will recogniBes an illegitimate child *. when a will disinherits a compulsor% heir c. when it appoints an e$ecutor ). #ssentiall% re(oca*le.-- ambulatory, it is not fi$ed. can *e ta6en *ac6 (while the testator is ali(e.) 4here is no such thing as an irre(oca*le will. It onl% *ecomes irre(oca*le upon death of the testator. ?. 9ormall% e$ecuted.-- If the form is defecti(e. it is (oid. It can not *e cured. @. 4estamentar% capacit% of the testator. A. :nilateral act.-- does not in(ol(e an e$change of (alues or depend on simultaneous offer and acceptance. C. -ortis causa.-- ta6es effect upon the person;s death (Art. AAA.) E. Statutor% grant.-- granted onl% *% ci(il law. 4he law can also ta6e it awa%. It is not a constitutional right *ut merel% statutor%. In Russia. there are no wills. all intestac% 1D. !nimus Testandi.++ 4here must *e an intent to dispose mortis causa the propert% of the testator. 4here must *e a real intent to ma6e a will or a disposition to ta6e effect upon death. Said intent must appear from the words of the will. Montinola (. 3A. & 3A Reports &AA.-- 4he Repu*lic contended that the phrase 5I here*% lea(e %ou (motherland). parents. lo(ed ones... 5 is a testamentar% disposition in fa(or of the Repu*lic as an heir. 3A ruled that it was not. 4he phrase is a mere piece of poetr%. there *eing no animus testandi. 4he lac6 of such intent might *e seen from the face of the document itself. 11. Indi(idual.-- -ne person alone. Foint wills are prohi*ited under Art. C1C. Hitug (. 3A.-- A couple e$ecuted a sur(i(orship agreement wherein their =oint *an6 account would *ecome the sole propert% of the sur(i(ing spouse should one of them die. 4he S3 held that such agreement is (alid. 4he con(e%ance is not a will *ec. in a will. a person disposes of his prop. In this case. the *an6 account is part of the con=ugal funds. ,either is the agreement a donation inter #i#os *ec. it ta6es effect after death. Art. 7C>. )%e !aEing of a $i is a strict y "ersona act9 it cannot be eft in $%o e or in "art to t%e discretion of a t%ird "erson; or acco!" is%ed t%roug% t%e instru!enta ity of an agent of an attorney. 2alane+ 4he ma6ing of a will is a purel% personal act. It is an e$ercise of the disposing power w7c can not *e delegated. 2ut the ph%sical act of ma6ing a notarial will can *e delegated to the secretar% *ut not the e$ecution or ma6ing of holographic wills.

'A<# 11

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

#.g.. A dictated 4he Secretar% wrote it down and t%ped. Is the will (alid1 >es. 0hat cannot *e left in whole or in part to a third person is the e$ercise of the will ma6ing power. the e$ercise of the disposing or testamentar% power. 4he mechanical act can *e delegated. Art. 7CA. )%e duration or efficacy of t%e designation of %eirs; devisees or egatees; or t%e deter!ination of t%e "ortions $%ic% t%ey are to taEe; $%en referred to by na!e; cannot be eft to t%e discretion of a t%ird "erson 2alane+ 4his pro(ision clarifies Art. AC) on will-ma6ing power. )%ings 2%ic% Cannot be *e egated to a )%ird Person by t%e )estator: 1. esignation of heir. legatee or de(isee. e.g.. I here*% appoint G as m% e$ecutor and it is in his discretion to distri*ute m% estate to whome(er he wants to gi(e it. 4his can not *e done. ". uration or efficac% of such disposition li6e. 52ahala 6a na. Ru*en.5 &. etermination of the portion to w7c the% are to succeed. when referred to *% name. Art. 7C(. )%e testator !ay entrust to a t%ird "erson t%e distribution of s"ecific "ro"erty or su!s of !oney t%at %e !ay eave in genera to s"ecified c asses or causes; and a so t%e designation of t%e "ersons; institutions or estab is%!ents to $%ic% suc% "ro"erty or su!s of !oney are to be given or a"" ied. 2alane+ Art. AC@ is an e$ception to Arts AC) and AC?. It co(ers things that are part of the essence of will ma6ing *ut allowed to *e delegated. E?a!" es of Pro%ibited *e egation: 1. 3an not delegate the designation of the amount of prop.. e.g.. I here*% set aside the sum _____ w7c m% e$ecutor ma% determine for the cause of mental health. 4he amount is not specified. ". 3an not delegate the determination of causes or classes to w7c a certain amount is to *e gi(en. e.g.. I here*% set aside '1M for such worth% causes as %ou ma% determine. 4his is not (alid *ec. the cause is not specific. 2% wa% of e$ception. there are " things w7c can *e delegated. 4he testator must specif%-- (a) the amount of propert%! (") the cause of classes of propert%-- *efore the delegation can ta6e effect. 1. 4he designation of person or institution falling under the class specified *% the testator. 3hoosing the mem*ers of the class *ut is restricted *% the class designation. e.g.. I here*% set aside the sum of '1M for the de(elopment of AI S research. M will choose w7c institution. 4his is allowed *ec. %ou ha(e guided alread% M;s decision. 8owe(er. M cannot designate Manila 8otel. ". 4he manner of distri*ution or power of apportioning the amount of mone% pre(iousl% set aside or prop. specified *% the testator. e.g.. I designate the following hospitals to get the share in m% estate and appoint M to apportion the amount of '1DM. I set aside '"?D.DDD for the following institutions+ :'. '<8. SR. in an amount as m% e$ecutor ma% determine. 4he a*o(e mentioned are e$ceptions to the rule that the ma6ing of a will are non-delega*le.

'A<# 1"

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

Art. 7C7. )%e testator !ay not !aEe a testa!entary dis"osition in suc% !anner t%at anot%er "erson %as to deter!ine $%et%er or not it is to be o"erative. 2alane+ 4his pro(ision clarifies what is meant that 5a will is personal.5 4his is in effect delegating the discretion to the disposition of the will. Artic es 7CC+ 7':. Inter"retation of 2i s@ Ru es of Construction. Art. 7CC. If a testa!entary dis"osition ad!its of different inter"retations; in case of doubt; t%at inter"retation by $%ic% t%e dis"osition is to be o"erative s%a be "referred. 2alane+ Art. ACE is the rule on interpretation in order that the will ma% *e (alid and not perish. Rationale+ 4he State prefers testate to intestate. 0h%1 2ec. testamentar% disposition is the e$press will of the decedent. Intestamentar% is the presumed will of the decedent. 4his is mere speculation on what the decedent wanted. Ut res mages #alet 0uam pereat.++ that the thing *e (alid than perish. #.g.. 4he word 5chic65 can ha(e " interpretations+ (1) a girl in w7c case inoperati(e *ec. not w7in the commerce of man and (") sisiw.-- operati(e. Interpret according to the second. Art. 7C'. 2%en t%ere is an i!"erfect descri"tion; or $%en no "erson or "ro"erty e?act y ans$ers t%e descri"tion; !istaEes and o!issions !ust be corrected; if t%e error a""ears fro! t%e conte?t of t%e $i or fro! e?trinsic evidence; e?c uding t%e ora dec arations of t%e testator as to %is intention9 and $%en an uncertainty arises u"on t%e face of t%e $i ; as to t%e a"" ication of any of its "rovisions; t%e testatorGs intention is to be ascertained fro! t%e $ords of t%e $i ; taEing into consideration t%e circu!stances under $%ic% it $as !ade; e?c uding suc% ora dec arations. 2alane+ &. 5inds of A!biguity: a. 'atent. apparent.-- that w7c appears in the face of the will. e.g.. 5I gi(e 17" of m% estate to one of m% *rothers.5 0ho among the *rothers1 4his is patentl% am*iguous. *. /atent. hidden.-- perfectl% unclear on its face. 4he am*iguit% does not appear until %ou appl% the pro(isions of the will. e.g.. 5I gi(e to M the prop. intersecting 2uendia and '. de Ro$as. 4he am*iguit% is determined onl% when the will is pro*ated. 4hat is. when it appears that I am the owner of all the ) corners of the lot. ,ow. w7c of those lots1 :. Ru e: 3larif% am*iguit% and *e guided *% these+ 4estac% should *e preferred or upheld as far as practica*le. An% dou*t shall *e resol(ed in fa(or of testac%. -: 1o$ $i you reso ve t%e a!biguity0 2%at evidence do you ad!it0 A+ >ou can admit an% 6ind of e(idence as long as rele(ant and admissi*le according to the Rules of 3ourt. 4his includes written declarations. #$cept+ -ral declarations of the testator. 0h%1 2ec. the% cannot *e questioned *% the deceased. Also. *ec. the% are eas% to fa*ricate. If inspite of e(idence %ou still cannot cure am*iguit%. then annul the will.

'A<# 1&

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

If the am*iguit% is patent. disregard the will. If latent. loo6 into the e(idences allowed *% law.

Art. 7'D. )%e $ords of a $i are to be taEen in t%eir ordinary and gra!!atica sense; un ess a c ear intention to use t%e! in anot%er sense can be gat%ered; and t%at ot%er can be ascertained. )ec%nica $ords in a $i are to be taEen in t%eir tec%nica sense; un ess t%e conte?t c ear y indicates a contrary intention; or un ess it satisfactori y a""ears t%at t%e $i $as dra$n so e y by t%e testator; and t%at %e $as unac,uainted $it% suc% tec%nica sense. Art. 7':. )%e inva idity of one of severa dis"ositions contained in a $i does not resu t in t%e inva idity of t%e ot%er dis"ositions; un ess it is to be "resu!ed t%at t%e testator $ou d not %ave !ade suc% ot%er dis"ositions if t%e first inva id dis"osition %ad not been !ade. 2alane+ <eneral rule+ Se(era*ilit%. A flaw does not affect the other pro(isions. #$ception+ If it was meant that the% were to *e operati(e together as seen in the will. Art. 7'8. Pro"erty ac,uired after t%e !aEing of a $i s%a on y "ass t%ereby; as if t%e testator %ad "ossessed it at t%e ti!e of !aEing t%e $i ; s%ou d it e?"ress y a""ear by t%e $i t%at suc% $as %is intention. 2alane+ 4his is a new pro(ision. It is *etter if this was not placed here. 0h%1 2ec. prop. acquired after the ma6ing of the will will not pass unless there is a clear intention or e$press pro(isions that the prop. will *e passed *% the testator. #.g.. I gi(e as legac% to M m% cars. I onl% had " cars when I e$ecuted the will. After w7c I acquired 1? more cars. 0hen I die. how man% cars will she get1 9ollowing Art. AE&. she will get onl% " cars. 4he additional cars are not included. <eneral rule+ After acquired propert% shall not pass. #$ception+ If the will pro(ides otherwise. If he said 5all m% cars when I die. 5 then M gets all 1A cars. 3-MM#,4+ 4his is craB%. Art. AE& is inconsistent w7 Art. AAA. At the time of the death. the succession will open. As such. all cars should *e gi(en. 2ut the law should *e applied as it is. ,o matter how inconsistent it is as pointed out *% 4olentino. 9or as law%ers. %ou should ad(ise %our clients to *e clear or clarif% e(er%thing to a(oid this am*iguit%. 4ell %our clients to specif% 5as of the time of m% death.5 4he solution to this inconsistenc% *et. the " articles is to repeal Art. AE&. Art. 7'>. Every devise or egacy s%a convey a t%e interest $%ic% t%e testator cou d devise or be,ueat% in t%e "ro"erty dis"osed of; un ess it c ear y a""ears fro! t%e $i t%at %e intended to convey a ess interest. 2alane+ <eneral rule+ /egac% or de(ise will pass e$actl% the interest of the testator o(er the propert%. #$ception+ :nless it appears from the will that he is gi(ing less.

'A<# 1)

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

#.g.. sa% %ou own a parcel of land. -nl% the ownership of the land can *e gi(en. If the testator is a usufructuar%. he can onl% *equeath his rights as usufructuar%. nothing more. nothing less. 3an %ou gi(e *igger1 >es. Art. E"E sa%s so. -nl% good if the other co-owner is willing to sell. I+ 2. < and F are co-owners. 2 ga(e to A the land the% owned in common. that is the entire land and full ownership o(er it gi(ing more than what he owns. Is this allowed1 A+ >es. 4he remed% is to *u% the shares of F and < *ut he can not compel them to *u% his share. there *eing no redemption of the whole land or gi(e to A the (alue of 2;s share. if < and F are not willing to sell their shares. 4he testator ma% gi(e a lesser interest. e.g.. I gi(e the usufruct of m% land to G. 0hat results1 :sufruct to G. ownership of the land goes *% intestac%. Art. 7'A. )%e va idity of a $i as to its for! de"ends u"on t%e observance of t%e a$ in force at t%e ti!e it is !ade. 2alane+ &. 4or!a =a idity a. 4ime criterion.-- law at the time of e$ecution! su*sequent laws cannot appl% retroacti(el%. *. 'lace criterion.-- :nder Art C1?-C1A. fi(e (?) choices are a(aila*le to the testator+ 1. 3itiBenship ". Residence &. omicile ). #$ecution ?. 'hilippines :. Intrinsic =a idity a. 4ime.-- time of death *ec. of Art. AAA *. 'lace.-- /aw of citiBenship of decedent. Subsection :.++ Testamentary Capacity and Intent 2alane+ Testamentification acti#a is the capacit% to ma6e a will. Testamentification pasi#a is the capacit% to inherit *ased on a will. 0ho has testamentar% capacit%1 All natural persons. 3orporations can not ma6e wills. -nl% natural human *eings can ma6e a will. Art. 7'(. A "ersons $%o are not e?"ress y "ro%ibited by a$ !ay !aEe a $i . 2alane+ <eneral rule+ All persons ha(e the testamentar% capacit% to ma6e a will. #$ception+ Incapacit%. when e$pressl% prohi*ited *% law+ (1) disqualified *% reason of age (Art. AEA)! (") disqualified *% reason of mental incompetence. (Art. AEC.) Art. 7'7. Persons of eit%er se? under eig%teen years of age cannot !aEe a $i .

'A<# 1?

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

2alane+ -: 1o$ do you co!"ute t%e age0 A+ According to the Admin. 3ode. age is rec6oned according to the calendar month. Art. 7'C. In order to !aEe a $i it is essentia t%at t%e testator be of sound !ind at t%e ti!e of its e?ecution. 2alane+ "oundness of mind is determined at the time of the e$ecution of the will. Art. 7''. )o be of sound !ind; it is not necessary t%at t%e testator be in fu "ossession of a %is reasoning facu ties; or t%at %is !ind be $%o y unbroEen; uni!"aired; or uns%attered by disease; in6ury or ot%er cause. It s%a be sufficient if t%e testator $as ab e at t%e ti!e of !aEing t%e $i to Eno$ t%e nature of t%e estate to be dis"osed of; t%e "ro"er ob6ects of %is bounty; and t%e c%aracter of t%e testa!entary act. 2alane+ &. Soundness of !ind.++ does not require that the testator *e in full possession of reasoning capacit% or that it *e wholl% un*ro6en. unimpaired or unshattered. :. It !eans rea iHation of or Eno$ing: a. 4he nature of his estate.-- Jnow what %ou own. 4his does not mean that the testator has to 6now the description of his propert% in detail. It is enough that he has more or less a fairl% accurate idea what his properties are. 4his depends upon the circumstances. Sa% Roc6efeller. 4he idea is less if %ou owned more. the more a person owns. the more he is apt to forget what he has in detail. If %ou thin6 %ou own A%ala *ridge and gi(es it as a de(ise. something is wrong w7 %ou. *. 'roper o*=ects of his *ount%.-- Jnow his immediate relati(es. #$perience of man6ind is that %ou gi(e to people who are attached to %ou *% *lood. Immediate relati(es referred to are spouses. parents. children . *rothers. sisters. *ut not first cousins. 9irst cousins usuall% are not 6nown especiall% if the% li(e a*road. 4he nearer the relation. the more %ou should 6now. 4he farther. the less the law e$pects of %ou. If the testator can not recogniBe his immediate relati(es. then there is something wrong. c. 3haracter of the testamentar% act.-- Jnow the essence of ma6ing a will. Jnow that %ou are+ (1) ma6ing a document that disposes (freel%. gratuitousl%) of %our propert%! (") to ta6e effect upon %our death. ,ote+ #(en if %ou are insane as to other things. as long as %ou 6now these three (&) things. %ou ha(e testamentar% capacit%. 8. Insanity is re ative. It is different in marriage and in contracts. 2ut in wills. not 6nowing one or more of the & mentioned a*o(e. %ou are considered insane. Art. CDD. )%e a$ "resu!es t%at every "erson is of sound !ind; in t%e absence of "roof to t%e contrary. )%e burden of "roof t%at t%e testator $as not of sound !ind at t%e ti!e of !aEing %is dis"osition is on t%e "erson $%o o""oses t%e "robate of t%e $i 9 but if t%e testator; one !ont%; or ess; before !aEing %is $i $as "ub ic y Eno$n to be insane; t%e "erson $%o !aintains t%e va idity of t%e $i !ust "rove t%at t%e testator !ade it during a ucid

'A<# 1@

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

interva . 2alane+ 4his is the law on presumption of soundness of mind as of the time of the e$ecution of the will. <enera ru e: 'resumption is for soundness of mind.-- proponent of will does not ha(e to pro(e the soundness of mind of the testator. 0h%1 4he law on e(idence sa%s that %ou don;t ha(e to pro(e+ (1) that w7c is admitted! (") that w7c is presumed! and (&) that w7c is ta6en =udicial notice of. isputa*le presumptions ma% *e o(ercome *% proof to the contrar%. 4here are & presumptions of law+ (1) conclusi(e! (") quasi-conclusi(e w7c can *e o(ercome onl% *% specific proof! (&) disputa*le E?ce"tion: Insanit% is re*utta*le presumed when+ 1. Art. CDD par. ".-- -ne month or less *efore the ma6ing of the will. the testator was pu*licl% 6nown to *e insane. #.g.. A. one month *efore ma6ing of the will was running in the 'laBa Miranda na6ed and shouting 5I*agsa6K5 4his is what %ou mean *% pu*licl% 6nown. ". If there had *een a =udicial declaration of insanit% and *efore such order has *een re(o6ed. (4orres (. /opeB. )C ' AA".) In these " cases. it is the proponent;s dut% to offer e(idence to the contrar%. i.e.. pro(e that the ma6ing of the said will was made *% the testator during a lucid inter(al. 3udicia *ec aration of Insanity Consists of: 1. A guardian appointed *% reason of insanit%. (Rule E&. R-3.) ". If the insane was hospitaliBed *% order of the court In either of these cases. there is a presumption of insanit%. 2ut once the order is lifted. the presumption ceases. #ffect+ 1. Re*utta*le presumption of sanit% is nullified or swept awa%. ". 4here is a re*utta*le presumption of unsoundness of mind. Art. CD&. Su"ervening inca"acity does not inva idate an effective $i ; nor is t%e $i of an inca"ab e va idated by t%e su"ervening of ca"acity. 2alane+ 4his article ma6es e$plicit what was mentioned in Art. CDD. 4he requirement is that sanit% should e$ist onl% at the time of e$ecution. Su*sequent insanit% does not affect the (alidit% of the will nor an in(alid will *e (alidated *% the reco(er% of the senses of the testator. Art. CD:. A !arried $o!an !ay !aEe a $i $it%out t%e consent of %er %usband; and $it%out aut%ority of t%e court. Art. CD8. A !arried $o!an !ay dis"ose by $i of a %er se"arate "ro"erty as $e as %er s%are of t%e con6uga "artners%i" or abso ute co!!unity "ro"erty.

'A<# 1A

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

Subsection 8.++ Forms of Wills 2alane+ 5inds of 2i s a o$ed under t%e NCC.++ (1) ordinary or notarial will w7c requires an attestation clause. an ac6nowledgement *efore a notar% pu*lic! (") holographic will w7c must *e entirel% written. dated and signed in the handwriting of the testator. -: 1o$ about Non-cupative 2i s0 A+ 4he% are not allowed *% the ,33. 4his 6ind of will is an oral will made *% the testator in contemplation of death. 4his is allowed among Muslims onl%. Co!!on Re,uire!ents for bot% Einds of $i s: 1. It must *e in writing ". #$ecuted in the language or dialect 6nown to the testator. I+ 0hat 6ind of language1 A+ It must *e a language (a) spo6en *% a su*stantial num*er of persons! (*) must ha(e *een reduced to writing and (c) fairl% su*stanti(e *od% of literature I+ 0hat is a dialect A+ A dialect is a (ariation of tongue. Art. CD>. Every $i !ust be in $riting and e?ecuted in a anguage or dia ect Eno$n to t%e testator. 2alane+ Re,uire!ents: 1. In writing *ut no specific form is required. It could *e in a mar*le glass or on a wall. so long as there was testamentar% capacit%. ". 0ritten in a language or dialect 6nown to the testator. SuroBa (. 8onrado.-- 4he issue here is whether the will. w7c was written in #nglish is (alid. 4he S3 ruled that it is not. 4he testatri$ does not 6now #nglish. *eing an Igorot and an illiterate. -*(iousl%. the will is (oid. *ec. of non-compliance w7 Art. CD). In a will. can %ou conclude that it is (oid where in the attestation clause. it was stated that the will was read and translated to 9ilipino1 4he law does not require translation nor interpretation of the language to the testator *ut that he himself personall% understands the said language. I+ Is it necessar% for a will to state that the testator 6new the language1 A+ ,o. #$trinsic7 testimonial e(idence ma% pro(e this. I+ Is direct e(idence alwa%s necessar% to pro(e that the testator 6new the language1 A+ ,o. Sometimes. circumstantial e(idence is sufficient. #.g.. a person w7 a college degree does a will in #nglish. Is it not enough that he studied & le(els to pro(e that he understands #nglish. Artic es CDA to CD'.++ S"ecia Re,uire!ents for Attested 2i s. Art. CDA. Every $i ; ot%er t%an a %o ogra"%ic $i ; !ust be subscribed at t%e end t%ereof by t%e testator %i!se f or by t%e testatorGs na!e $ritten by so!e ot%er "erson in %is

'A<# 1C

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

"resence; and by %is e?"ress direction; and attested and subscribed by t%ree or !ore credib e $itnesses in t%e "resence of t%e testator and of one anot%er. )%e testator or t%e "erson re,uested by %i! to $rite %is na!e and t%e instru!enta $itnesses of t%e $i ; s%a a so sign; as aforesaid; eac% and every "age t%ereof; e?ce"t t%e ast; on t%e eft !argin; and a t%e "ages s%a be nu!bered corre ative y in etters " aced on t%e u""er "art of eac% "age. )%e attestation s%a state t%e nu!ber of "ages used u"on $%ic% t%e $i is $ritten; and t%e fact t%at t%e testator signed t%e $i and every "age t%ereof; or caused so!e ot%er "erson to $rite %is na!e; under %is e?"ress direction; in t%e "resence of t%e instru!enta $itnesses; and t%at t%e atter $itnessed and signed t%e $i and a t%e "ages t%ereof in t%e "resence of t%e testator and of one anot%er. If t%e attestation c ause is in a anguage not Eno$n to t%e $itnesses; it s%a be inter"reted to t%e!. 2alane+ A. 9ourth 'aragraph.-- Jnow the language 1. 2od% of the will.-- testator ". Attestation clause a. 4estator.-- ,o. *. witnesses.-- ,o. -nl% required to 6now the contents thereof. 2. iscrepancies 1. 'ar. 1.-- ,o mention that the testator signs in the presence of witnesses and %et par. & states this. ". 'ar. ".-- ,o statement that the testator and the witnesses must sign e(er% page in one another;s presence and %et that is required to *e stated in the attestation clause. &. 'ar. &.-- In case of agent. all it requires is that the agent signed *% his direction and not in his presence. *ut that is required in par. 1. 3. Requisites for an ordinar% attested will (notariBed will.).-- 'urpose of requisites+ =udgment call of 3ode 3ommission! *alancing of " policies.-- (1) to encourage a person to ma6e a will! (") to ma6e sure that the will is testament of the testator to minimiBe fraud. &. Signed by t%e testator or %is agent in %is "resence and by %is e?"ress direction at t%e end t%ereof and in t%e "resence of t%e $itnesses. a. Su*scri*e.-- literall% means 5to write one;s name.5 Sign means 5to put a distincti(e mar65 (this is the *etter term to use.) *. Signing.-- *% writing his own name! a person ma% sign in other wa%s (i) Matias (. Salud.-- 4he testator signed affi$ing her thum* mar6 on the will. this is *ecause he can no longer write due to sic6ness7 disease called herpes 1oster. cold. ph%sical infirmit%. Is this a sufficient signature1 >es. A thum* mar6 is a sufficient signature of the testator. In fact. it is alwa%s and under an% and all circumstances a (alid wa% to sign a will. Reason+ It is less posssi*le to forge. A thum* mar6 is alwa%s a (alid wa% of signing whether literate or illiterate. 8owe(er. there is also the danger of falsif%ing it *% affi$ing the thum* of a newl% dead person. I+ 0hat if the testator has no disease *ut signed in his thum* mar61 A+ 4his will do *ec. thum* mar6 is a sufficient signature under all circumstances.

'A<# 1E

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

4he contro(ers% is that what if after the testator affi$ed his thum* mar6. another person signed on her *ehalf. Attestation clause does not state this. I mean. it would not appear in the attestation clause. 4he S3 said that the person signing on his *ehalf is not an agent and *esides it was alread% signed *% the testator affi$ing his thum* mar6 and to state this (the affi$ing of the thum* mar6) in the attestation is a mere surplusage. (ii) <arcia (. de la 3uesta.-- 4estator signed w7 a cross. Is this (alid1 ,o. 4his is so *ec. such cross is eas% to falsif%. A cross can not *e considered a signature. <eneral rule+ A cross is unaccepta*le as a signature. #$ception+ 4hat is his normal wa% of signing. c. 'urpose.-- to authenticate the will d. 0here should the testator sign1 At the end of the will. 4here are " 6inds of ends+ (i) 'h%sical end.-- where the writing ends (ii) /ogical end.-- that where testamentar% disposition ends. :suall%. the% are the same. 2ut if different. t hen either will do. 0hat if after the signature. some clauses follow1 0hat is the effect of the said clauses to the will1 If annuls or ma6es the whole (oid *ec. of the non-compliance w7 Art. CD?. e. 4estator directs another to sign his name. (i) 9our cases+ 4estator- A! Agent- 2 a. 525 is not (alid *. 5A5 handwritten 5*% 25 t%pewritten is (alid c. 5A5 t%pewritten 5*% 25 handwritten is not (alid. d. 5A5 is (alid (ii) 3ases+ a. 2arut (. 3a*acungan.-- Requirements+ (1) agent must write the name of the testator *% hand! (") ad(isa*le if the agent write his name also. *. 2alonan (. A*ellana.-- 4he witness signed his name a*o(e the t%pewritten words 5por la testadora Anacleta A*ellana.5 4he S3 held that the testator;s name *e written *% the agent signing in his stead in the place where he would ha(e signed if he were a*le to do so. It is required that the witness write the testator;s name in the testator;s presence and under her e$press direction. (iii) 4he agent must sign where the testator;s signature should *e. (i() 'urpose of the rules+ to test the authenticit% of the agenc%. It is an added safeguard to minimiBe fraud. f. 4estator must sign in the presence of witnesses (i) 9our cases+ 4estator.-- A! 0itnesses.-- 2. 3. a. A signs w7 2 *reathing on her face. Is it signing in the presence of the testator1 >#S. *. A signs while 2 is tal6ing to 3. 2 can see A through peripheral (ision. Is A signing in 2; s presence1 >#S c. A signs while 2 is tal6ing to 3 w7 2;s *ac6 to A. Is it signing in 2;s presence1 >#S. d. 2 goes out and stands *ehind the wall. 8e cannot see A. 2 is also tal6ing to 9. Is a signing in 2;s presence1 ,-.

'A<# "D

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

(ii) ,era (. Rimando.-- Actual seeing is not required. 0hat is required is that the person required to *e present must ha(e *een a*le to see the signing. if he wanted to do so. *% casting his e%es in the proper direction. 8is line of (ision must not *e impeded *% a wall or curtain. 4his is a question of fact for the lower court to determine. 2lind witnesses are therefore disqualified. :. Attested and subscribed by at east t%ree credib e $itnesses in t%e testatorGs "resence and of one anot%er. a. I+ 3an the testator sign first not in the witness; presence. then let the witnesses sign1 ,o. Art. CD? requires that the testator should sign at their presence (Hda. de Ramos case.) 4here is some inconsistenc% here *ut we ha(e to follow Art. CD?. I+ 3an the (alidit% *e affected if the witness signed ahead of the testator1 A+ ,o. 'ro(ided it is made in one occasion or transaction. 8owe(er. in strict theor%. it can not *e done *ec. *efore the testator signed there is no will at all w7c the witnesses can sign and attest to. If there is more than one transaction. then the testator must alwa%s sign ahead of the witnesses. *. Attestation --(isual act --witness Su*scri*ing -- manual act -- sign

4he three witnesses must do *oth attesting and su*scri*ing. c. 0here must witnesses sign1 4his is not clear. 4a*oada (. Rosal.-- In this case. the witnesses signed at the left hand margin. 'etitioner contended that the% should ha(e singed at the same place where the testator signed. that is. at the *ottom of the end of the will. 4he S3 was li*eral. 4he purpose of signing at the end is to pre(ent interpolation. 4he o*=ect of attestation and su*scription which is for identification. was met when the witnesses signed at the left hand margin of the sole page w7c contained all the testamentar% dispositions. (4his concerned a "-page will w7 the first page containing all the dispositions and the second page the attestation and ac6nowledgement.) 4he will was signed *% the witnesses at each and e(er% page thereof. /iteral requirement.-- witnesses must also sign at the end7 last page In the case.-- as long as signed in the margin. -J ,ow.-- under or on margin. -J. d. 3an witnesses sign w7 thum* mar61 (1) Some sa% >es *ec. it is onl% an act of authentication! (") some sa% no *ec. one requirement is that witnesses must 6now how to read and write w7c implies that the witness write his name. 8. )%e testator or agent !ust sign every "age e?ce"t t%e ast on t%e eft !argin. a. 'urpose.-- to pre(ent the disappearance of the pages. *. 5#(er% page e$cept the last.5 0h% not the last1 2ec. it will alread% *e signed at the *ottom. c. /eft hand margin.-- requirement was made when right hand was not =ustified when

'A<# "1

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

t%ped. d. ,ow. testator can sign an%where in the page. (i) each page is signed and authenticated.-- mandator% (ii) left margin.-- director%. >. 2itnesses !ust sign eac% and every "age; e?ce"t t%e ast; on t%e eft !argin. 4his is the same as num*er &. 0itnesses ma% sign an%where as long as the% sign Icasiano (. Icasiano.-- In the will su*mitted for pro*ate. one page was not signed *% one of the witnesses. Such failure to sign was due to inad(ertence since in the cop%. all pages were signed. 4he S3 held that this was not a fatal defect. 3onsidering the circumstances. the fact that the other requirement was complied with. and the notarial seal coincided w7 the third page during the sealing. then the will could *e pro*ated. :nusual circumstances w7c e$isted in the case+ (1) there was another cop% (") inad(ertence7 o(ersight (&) *ecause of the notarial seal. 4he presence of these facts led the S3 to allow the will. 4he general rule. howe(er. is that. the failure to sign an% page is a fatal defect. A. A "ages !ust be nu!bered in etters on t%e u""er "art of t%e "age. a. Mandator%.-- there must *e a method *% w7c the sequence of the pages can *e 6nown! to pre(ent an insertion or ta6ing out of a page. *. irector% (i) Manner it is num*ered- letters. num*ers. Ara*ic. roman numerals. etc.! an% con(entional sequence of s%m*ols is allowed (ii) :pper part (. Attestation C ause. a. 4hree things that must *e stated+ (i) the num*er of pages in the will (ii) the fact that the testator or his agent signed the will in e(er% page thereof in the presence of the instrumental witnesses (iii) that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and one another. *. Attestation clause is not a part of the will proper *ec. if contains no dispositions. It is merel% essential for the formal requirements of a (alid will. It is a statement of the witnesses. c. 0here must witnesses sign1 At the *ottom in order to pre(ent additions. 3agro (. 3agro.-- In the case. the page where the attestation clause appears was signed *% the witnesses on the side and not after the attestation clause. 4he S3 held that this was a fatal defect. 4he logic is that if there had *een no signature at the *ottom *ut on the sides. there will *e ample room for fraud. that is. to add in the attestation clause upon the death of the decedent an essential matter w7c was not there in the first place to (alidate it.!

'A<# ""

Notes and Cases on SUCCESSION

3ompiled and #dited *% RAM

2alane+ 4his refers to omission of heir in partition and not to preterition. 4he heir omitted has the right to demand his share. Art. &&DA. A "artition $%ic% inc udes a "erson be ieved to be an %eir; but $%o is not; s%a be void on y $it% res"ect to suc% "erson. 2alane+ 4his is the opposite of Art. 11D). It does not nullif% the partition. It ma6es the recipient return what was mista6enl% gi(en to him. RAM 1"7&D7E?

'A<# 1?1