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Succession in General The subject is actually divided in two parts: (1) Wills and (2) Succession. The first part deals with wills or what we call testate or testamentary succession. The second part deals with succession in general which covers intestate succession and the other concepts related to succession.
Why do we have the law on succession? When you say succession, what is the first thing that comes to mind?
RAMIREZ VS. RAMIREZ 111 SCRA 82
FACTS: Jose Eugenio Ramirez, a Filipino national died in Spain. His widow, Marcelle is French who lives in Paris. His companion, Wanda is Austrian who lives in Spain. Jorge and Roberto (heirs in the will) opposed the project of partition on the ground
that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution.
Succession in Political law: LGC - when the mayor becomes incapacitated Constitution - when the President dies, or becomes permanently incapacitated, he is succeeded by the VP. VP.
ISSUE: Whether the usufruct over the real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens. RULING: THE CONSTITUTIONAL PROVISION WHICH ENABLE ALIENS TO ACQUIRE PRIVATE LANDS DOES NOT EXTEND TO TESTAMENTARY SUCCESSION. For
Matters discussed in Succession: What will happen when a person dies. How can a person dispose of his properties after death. What are the formalities when it comes to executing a will. How is his est ate divided. To whom shall the estate be given. How to partition the estate.
otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.
What are bases of succession? Why do we have a law on succession? Do we have an inherit right to succeed to the properties of our predecessors? 1) Natural Law — It is in the nature of man to provide for those who he will leave behind.
2) Socio-Economic Postulate — To prevent properties from becoming idle. If nobody succeeds to the parcels of land of a certain person, the parcels of land will just remain unused and idle. So, this is to the effect that even if the owner of the property is gone, the property is still there and can be utilized for productive purposes. 3) Attribute of Ownership — If you remember your law on property, we have Art. 428: The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it. A person has the right to enjoy and dispose of a thing. That is part of his ownership. He may dispose of the thing. This right is not only limited during his lifetime. As part of his ownership, he can also determine how his properties will be disposed of after his death. But the law says, without other limitations, than those established by law. So even though he may dispose of his properties as an attribute of of ownership even after his death, this is subject to limitations provided for by law.
Provision on succession in Constitutional Law. Sec. 7, Art. XII of the 1987 Constitution . Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.
GR: Foreigners cannot acquire private lands in the Philippines. What is the kind of succession is being referred to here which allows foreigners to inherit/acquire private lands in the Philippines ? E: Foreigners may inherit through intestate succession succession or legal succession or succession by operation of law or succession to the legitime in testamentary succession .
Why? It would be very easy to circumvent the prohibition if the same allows testamentary succession. Foreigners would just pay a dying person to include him in his will. There would be a time that no land will belong to any Filipino. Remember that this can also apply to testamentary succession in the sense that the legitimes (portion of a person’s estate which is reserved by law to his compulsory heirs.) If a person has a will, it does not mean that that person’s foreigner child will not be able to inherit. He can still inherit if that is his legitime. Because legitimes is also forced succession. It is provided for by law.
The usufruct in favor of Wanda is valid because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is prescribed by t he Constitution. 1/2 - legitime 1/2 - free portion to Roberto and Jorge in naked ownership and the usufruct to Wanda with a simple substitution in favor of Juan Pablo Jankowski and Horace Ramirez. This case enunciates what kind of succession is being referred to in Sec. 7, Art. XII of the 1987 Constitution.
KINDS OF SUCCESSION: as to effectivity: 1) succession inter vivos — “during the lifetime” - similar to donation inter vivos - it is a gratuitous disposition during the lifetime of the transferror - governed by the law on donation
2) succession mortis causa — “upon death” - this is the succession we will be discussing - also called succession proper - takes effect after the death of the decedent
Art. 728. Donations are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. If that gratuitous disposition is to take effect upon death, such will be governed by the laws on succession. If it takes effect during the lifetime of the transferror, that is governed by the laws on donation. It is very important to know whether a disposition is inter vivos or mortis cause. Because they are governed by different formalities. If you intend that the transfer should take effect during the lifetime, you follow the formalities of donations. If you intend that the transfer be effected after death, you follow the formalities of wills. What happens if you interchange? The transfer shall not be valid.
DONATIONS
WILLS
succession inter vivos
succession mortis causa
t ak akes e ffffect during the lifetime
t ak akes e ffffect upon death
gove govern rned ed by by the the laws laws on on dona donati tion onss
gove govern rned ed by by the the laws laws on on succ succes essi sion on
So the constitutional provision refers to legal succession or succession to the legitime in testamentary succession.
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DONATIONS
WILLS
1. it says that it is effective upon the death of the donor 2. in the event that the donee should day before the donor, the present donation shall be rescinded
FORMALITIES: Personal property ! can be made orally as long as there is simultaneous delivery. If more than P5000 ! must be made in writing (does not have to be in a public document) Real property, regardless of the value ! donation and acceptance must be in a public document
3. To classify the donation as inter vivos simply because it is founded on love love and
Have to comply with the formalities of wills which depend on whether it is a holographic or notarial will.
What causes confusion is sometimes the document is named “Deed of Donation” but the content is to the effect that the transfer is made upon the death. Thus we have the following cases.
GANUELAS VS. CAWED 401 SCRA 447, April 24, 2003
FACTS: The document was denominated as “Deed of Donation.” It had the following controversial provisions: For and in consideration of the love and affection which the donor has for the donee and of the faithful services the latter has rendered in the past to the former, the said donor does by this presence, transfer and convey by way of donation unto the donee the property above described to become effective upon the death of the donor but in the event that the donee should die before the donor, the present donation shall be deemed rescinded and of no further force and effect. It was argued that since it stated “For in consideration of the love and affection which the donor has for the donee,” this is donation proper/inter vivos. Because donations are founded upon considerations of love and affection. On the other hand, it was contended that it was donation mortis causa. THE DOCUMENT WAS IN THE FORM OF A DONATION. The donation as well as the acceptance were both in a public document. But if it is inter vivos, the transfer would not be valid. If it is mortis causa, it has to be in the form of a last will and testament.
ISSUE: Is it donation inter vivos or mortis causa? RULING: SC enumerated the 3 distinguishing characteristics of a donation mortis causa.
1) it conveys conveys no title title or ownership ownership to the transferee transferee before before the death death of the transferror or what amounts to the same thing that the transferror shall retain the ownership and control over the property while alive If he retains ownership, whether full (retain the title and right to use) or naked (retain the title but allow the transferree to harvest or use the land) it is donation mortis causa.
2) That before the death, the transfer shall shall be revocable revocable by the transferror at will, ad nutum. But revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and As long as the donor is alive, he can revoke the transfer. If it is a donation inter vivos, the same are not revocable at will. The law allows revocation only on specific grounds which also may be stipulated in the donation. In other words, if the revocation can be done by the will of the donor, (without any reason) then it is donation mortis causa. If the donor reserves the right to dispose the property, that means he has not parted with the ownership over the same. That means, the donation is revocable at will.
3) That the transfer transfer should be void if the transferor transferor should survive the transferee If it is donation inter vivos, upon acceptance the property, it becomes now owned by the donee. Thus, if the donee dies, it shall form part of the estate of the donee and thus inherited by his heirs. If it is stated that if the donee dies ahead of the testator the property shall revert to the donor, that is mortis cause. Because in succession, the heirs should survive the decedent. You cannot inherit from your parents parents if you die first. That is actually also the essence of succession — that the heir should survive the decedent.
affection is erroneous. Because love and affection also underlies the transfers mortis causa. Succession is also founded on love and affection. Thus the transfer was not effective because it was embodied in a deed of donation which observed the formalities of a deed of donation and not of wills.
MAGLASANG VS. CABATINGAN GR 131953, June 5, 2002
FACTS: Conchita Cabatingan executed in favor of her brother, Petitioner Nicolas Cabatingan, a Deed of Conditional Donation Inter Vivos for House and Lot covering 1/2 portion of the former’s house and located in Cot-cot, Liloan, Cebu. 4 other deeds of donation were also executed in favor of Petitioners. These deeds of donation contain similar provisions: That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; Respondents filed with the RTC an action for the annulment and/or declaration of nullity of deeds of donations and accounting seeking for the annulment of the 4 documents are void for failing deeds of donation executed Respondents allege, that documents
to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa. Petitioners insist that the donor are inter vivos donations as these were made by the late Conchinta Cabatingan in consideration of the love and affection of the donor for the donee, and there is nothing in the deeds which indicate that the donations were made in considertaion of Cabatingan’s death. In addition, petitioners contend that the stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
ISSUE: Is the donation mortis causa or inter vivos? RULING: IT IS A DONATION MORTIS CAUSA. 1. the donations do not contain any clear provision that intends to pass proprietary rights to Petitioners prior to Cabatingan’s death
2. The phrase to become effective upon the death of the DONOR a dmits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit: 3. The donations donations were made made in consideration consideration of the love and affection affection of the donor does not qualify the donations as inter vivos because transfers mortis causa may be made for the same reason.
IN A DONATION MORTIS CAUSA, THE RIGHT OF DISPOSITION IS NOT TRANSFERRED TO THE DONEE WHILE THE DONOR IS STILL ALIVE. In determining whether a donation is one of mortis causa, the ff. characteristics must be t aken into account: (1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dipose of the properties conveyeed; and (3) that the transfer should be void if the transferor should survive the transferee.
SINCE THE DEEDS PARTAKE OF THE NATURE OF TESTAMENTARY PROVISIONS, THEY MUST BE EXECUTED IN ACCORDANCE WITH THE REQUISITES ON SOLMENITIES OF WILLS AND TESTAMENTS UNDER ARTS. 805 AND 806. The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the abovequoted provisions of law. Thus the deeds of donations are null and void.
DEED OF DON ATION IS ACTUALLY ACTUALLY A DONATION MORTIS CAUSA.
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heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor , but will be inherited by the heirs of
CUEVAS VS. CUEVAS GR L-8327, December 14, 1955
EUFRACIA RODRIGUEZ; That I EUFRACIA RODRIGUEZ, hereby accept the land above describe d
FACTS: The document here was denominated Deed of Donation in tagalog. “Dapat malaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, ang lupa na ipinagkaloob ko sa kanya ay ako pa rin ang namomosecion, makapagtrabaho, makikinabang at ang iba pang karapatan sa pagmamay-ari ay sa akin pa rin hanggang hindi ako binabawian ng buhay ng Maykapal at ito naman ay sa akin pa rin hanggang hindi ako binabawian ng buhay Maykapal at ito naman ay hindi ko nga iya-alis pagkat kung ako ay mamatay na ay inilalaan ko sa kanya.”
ISSUE: Is this donation inter vivos or donation mortis causa? RULING: IT IS DONATION INTER VIVOS. The decisive proof that the present donation is operative inter vivos lies in the final phrase to the effect that the donor will not dipose or take away (“hindi (“hindi ko nga iya-alis” in the original) the land “because I am reserving it to him upon my death.” By these words, the donor expressly renounced the right to freely dispose of the property in favor of another (a right essential to full ownership) and manifested the irrevocability of the conveyance of the naked title to the proeprty in favor of the donee. Such irrevocability is characteristic of a donation inter vivos because it is incompatible with the idea of disposition post mortem. The donation mentioned “samantalang ako ay nabubuhay ang lupa na ipinagkaloob ko sa kanya ay ako pa rin ang namomosecion, makapagtrabaho, makikinabang at ang iba pang karapatan sa pagmamay-ari ay sa akin pa rin.” rin.” It was contended that the donee actually retained the ownership over the land: right to possess, right to cultivate the land, the right to benefit from the land and other rights of ownership.
from Inay Alvegia Rodrigo and I am much grateful to her and praying further for a longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime After the execution of the deed of donation, Alvegra Rodrigo sold the land to Vere and then Branoco. Villanueva here filed a case to recover the parcel of land.
ISSUE: Is the Deed of Donation Valid? Donation intervivos or mortis causa? RULING: Even if it is in the form of a will, and assuming that it is a will or donation mortis causa, the buyer would still have a better right because it tantamount to a revocation of the donation mortis causa in favor to Rodriguez. The sale by the testator of the
property to another person during the testator’s lifetime has the effect of revoking the will. 6 DISTINGUISHING CHARACTERISTICS OF A DONATION MORTIS CAUSA: 1) it conveys conveys no title or ownershi ownershipp to the transferee transferee before before the death death of the transferror or what amounts to the same thing that the transferror shall retain the ownership and control over the property while alive 2) That before the death, the transfer shall be revocable by the transferror at will, ad nutum. But revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and 3) That the transfer transfer should be be void ifif the transferor transferor should survive the transferee In addition to the 3 distinguish characteristics, another 3 were added:
The testator only retained the beneficial use of the land, but the naked title, she already gave to the donee. It would be different if she retained the naked title and
4) The specificati specification on in a deed of the causes whereby whereby the act be revoked revoked by by the donor indicates that the donation is inter vivos, rather than a disposition mortis
gave away the beneficial use. It would be still be donation mortis cause. But here she only retained the beneficial ownership.
causa If there is no cause, and the donor can just revoke the donation, it is mortis causa because it is real deed of donation. The law specifies the grounds for revocation or donor has to specify it in the deed. If the deed mentions the causes for revocation, then it is an indication that it is inter vivos. 5) That the designation of the donation as mortis causa, or a provision in the deed
As to the phrase “ang iba pang karapatan sa pagmamay-ari ay sa akin pa rin.” rin.”
The words, rights and attributes of ownership should be construed ejusdem generis (in the same sense as they are understood) with the preceding rights of possession, cultivation, and harvesting. It could not refer to ownership, it could only be on the same level of possession, cultivation and harvesting. Had the donor meant to retain full or absolute ownership, she did not need to specify possession, cultivation and harvesting, since all these rights are embodied in a full or absolute ownership.
Therefore the transfer here was valid because it complied with the formalities of donation.
to the effect that the donation is to take effect at the death of the donor are not controlling criteria; such statements are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor; and Just because it states that it is effective upon the testator’s death it does not mean that it is mortis causa. You have to take into account the other provisions of the document. 6) That in case of doubt, doubt, the conveyan conveyance ce should should be deemed donation donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the
property subject of the deed. In case of doubt, it will be inter vivos. This is to avoid uncertainty in the ownerhsip of the property — as such will be present in a deed of donation mortis causa. The latter being able to be revoked at the will of the testator.
VILLANUEVA VS. SPOUSES BRANOCO GR 172804, January 24, 2011
FACTS: There is a Deed of Donation made by Alvegra Rodrigo which contained the following provisions: That as we live[d] together as husband and wife with Juan Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA, and ADELAIDA, all surnamed ARCILLAS, and by reason of poverty which I suffered while our children were still young; and because my husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient as she was to all the works in our house, and because of the love and affection which I feel [for] her, I have one parcel of land located at Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land is more or less described and bounded as follows: 1. Bounded North by Amambajag River; East, Benito Picao; South, Teofilo Uyvico; and West, by Public land; 2. It has an area of 3,492 square meters more or less; 3. It is planted to coconuts now bearing fruits; 4. Having an assessed value of P240.00; 5. It is now in the possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be vested on her upon my demise . That I FURTHER DECLARE, and I reiterate that the land above described, I already devise in favor of EUFRACIA RODRIGUEZ since May 21, 1962, her
IT IS DONATION INTER VIVOS. 1. It was stipulated that in the event that the donee predeceases the donor, the 2.
3.
4.
5.
proeprty will not be reverted to the donor but is to be inherited by the heirs of Rodriguez. The transer of title was perfected when Rodrigo learned about the disposition in favor of Eufrocia. In fact, in the deed of donation, the acceptance part shows that the donee will still give the 1/2 of the produce to the donor. She still gives the beneficial ownership to the donor. But the naked title shall be passed on to the donee. What Rodrigo reserved to herself was only the beneficial title of the property as evident from the donee’s undertaking to give 1/2 of the produce of the land to Apoy Alve during her lifetime. So the phrase here in the Deed of Donation that said “the Deed of Donation or that ownership be vested on her upon my demise” refers only to the beneficial ownership because the naked title was given by the donor to the donee during her lifetime. The beneficial ownership upon the testator’s death, shall be vested upon the donee. That it is inter vivos was underscored by the promise by the donee to give the donor 1/2 of the produce during her lifetime. If the donor really reserved ownership over the land, there was no need for the donor to mention that she will give the proceeds of the land to the donor because as owner of the land, she need not mention the same. The existence of consideration other than the donors death, such as the donors love and affection to the donee and the services the latter rendered, while also
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true of devises, nevertheless corroborates the express irrevocability of inter vivos transfers While in the other case we discussed that mere consideration of love and affection does not necessarily make the transfer inter vivos because love and affection can also underlie a transfer mortis causa. But in this case, the SC said that it corroborates the fact that it was really a donation inter vivos. How about the fact that after the donation, the donor sold the property? S C said, Nor can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to Vere as proof of her retention of ownership. If such were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of passing ownership. The interest of settled property dispositions counsels against licensing such practice.
The act of selling the property to another added to the uncertainty of the ownership over the property. Thus, in case of doubt, it will be resolved in favor of it being a donation inter vivos.
Note: Take note that the SC examined the deed as a whole — provisions one by one and relating one to another. Even if it was stated that the transfer will take effect upon the death, it was also stated that upon the death of the donee, the property will not revert back to the donor but is to be inherited by the donee’s heirs. Property was already in the possession of the donee as early as 1962. It is very clear that what the donee reserved for herself in this document is only the beneficial ownership. That the right of beneficial ownership is that which will be vested upon the donor’s death. Again, if ownership is transferred to the donee during the lifetime of the donor whether its full ownership or naked title, it is already a donation inter vivos. but if the donor reserves full ownership or even naked ownership, it is still donation mortis causa or succession.
Recap: Again, when we say inter vivos this is governed by the law on donations because the tranfer happens during the lifetime of the donor. Therefore, for an effective transfer, the document has to satisfy the formalities of donation. If it is mortis causa, whether it is succession or donation mortis causa, that is actually succession proper. Here, the transfer is effective upon the death of the transferor. transferor. Being that, it is governed by the laws on succession and by the formalities of wills. To be valid, the document has to comply with the formalities of wills. Remember the 6 distinguishing characteristics of donations mortis causa. (Villanueva vs. Spouses Branoco)
TITLE IV. — SUCCESSION Chapter 1
GENERAL PROVISIONS Now we go to the definition of Succession.
Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. Take note that as defined, SUCCESSION is the mode or the manner , by which the property, rights and obligations are acquired. Compare it with Art. 712. Art. 712. Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. There are two modes of acquiring property: (1) original original mode (2) derivative derivative mode -
JUTIC VS. CA August 27, 1987
FACTS: Vicente Sullan and the other respondents filed a complaint with the then Court of First Instance at Tagum, Davao del Norte against the petitioners for partit ion and accounting of the properties of Arsenio Seville, alleging they are heirs of the decedent.
Succession is a derivative mode because there is a prior owner who is the decedent and upon his death, his properties, rights and obligations are transmitted to the heirs. Aside from succession, we have donation, tradition as a consequence of certain contracts. This is a derivative mode of acquisition.
Arsenio owned several properties in Davao. He executed an affidavit in favor of Melquiades which reads: xxx That I am a widower as indicated above and that I have no one to inherit all my properties except my brother Melquiades Seville who appears to be the only and rightful person upon whom I have the most sympathy since I have no wife and children;
FACTS: Romulo Coronel et al executed a document entitled Receipt of Down Payment
That it is my desire that in case I will die I will assign all my rights, interest, share and participation over the above- mentioned property and that he shall succeed to me in case of my death, however, as long as I am alive I will be the one to possess, enjoy and benefit from the produce of my said land and that whatever benefits it will give me in the future I shall be the one to enjoy it; xxx
Received from Ramona Alcaraz xxx the sum of Fifty Thousand Pesos purchase price of our inherited house and lot, x x x in the total amount of P1,240,000.
Arsenio mortgaged the properties to PNB in consideration for a loan done with the knowledge of Melquiades.
CORONEL VS. CA GR 103577, October 7, 1996 in favor of Ramona Alcaraz which provides: RECEIPT OF DOWN PAYMENT P1,240,000 - total amount P 50,000 - down payment P1,190,000 - balance
We bind ourselves to effect the transfer in our names from our deceased father, constancio Coronel, the transfer certificate of title immediately upon receipt of the down payment above-stated.
ISSUE: Whether or not there was a valid donation from Arsenio Seville to Melquiades Seville. RULING: THE AFFIDAVIT IS NEITHER A DONATION INTER VIVOS/MORTIS CAUSA. IT MERELY DECLARED AN INTENTION AND A DESIRE TO DONATE. A discussion of the
On our presentation of the TCT already in our name, We will immediately execute the deed of absolute sale of said property and Ramona Alcaraz shlal immediately pay the balance of the P1,190,000.
different kinds of donations and the requisites for their effectivity is irrelevant in the case at bar. There clearly was no intention to transfer ownership from Arsenio Seville to Melquiades Seville at the time of the instrument's execution. It was a mere intention or a desire on the part of Arsenio Seville that in the event of his death at some future time, his properties should go to Melquiades Seville.
Conditions of the sale are thus: (1) that Ramona will make a downpayment; (2) The Coronels will cause a transfer in their names of the title of the property registered (3) Upon the transfer in their names of the subject property, the Coronels will execute the deed of absolute sale in favor of Ramona and the latter will pay the balance of the full price.
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However, after downpayment was received and the transfer of the TCT, the Coronels sold the property to Catalina Mabanag for P1,580,000 after the latter paid P300,000 downpayment. Coronels thus rescinded the contract with Ramona by depositing the downpayment paid by Concepcion in thebank in trust for Ramona Alcaraz. Ramona filed a Complaint for Specific Performance against the Coronels. Coronels argue that there could have been no perfected contract of sale on January 19, 1985 because they were then not yet the absolute owners of the inherited property. Moreover, that succession may not be declared unless the creditors have been paid.
ISSUE: What is the real nature of the contracts? RULING: THE PARTIES DID NOT MERELY ENTER INTO A CONTRACT TO SELL WHERE UPON THE SATISFACTION OF THE SUSPENSIVE CONDITION, THE SELLERS WOULD SELL THE PROPERTY TO THE BUYER. THE CORONELS HAD ALREADY AGREED TO SELL THE HOUSE AND LOT THEY INHERITED FROM THEIR FATHER. It just so happened that the TCT was still in the name of their father. It was more expedient to first effect the change in the certificate of title so as to bear their names. That is why they undertook to cause the issuance of a new TCT in their names of the down payment in the amount of P50,000. As soon as the new TCT is issued in their names, Coronels were committed to immediately execute the deed absolute of sale. Only then will the obligation of Ramona arises — to pay the remainder of the purchase price. THE RECEIPT OF DOWN PAYMENT
Art. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. Art. 775 gives us the definition of a “ decedent.” This is the general term. Whether or not it is testate or intestate succession, the person who died can be called the decedent. To be more specific, if there is a will , that person is called “testator.”
Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. Art. 776 defines “ inheritance.” It means all the P, R, and O which are not extinguished by his death. Are we saying that there are P, R and O that are extinguished by death? There are.
WAS A CONDITIONAL CONTRACT OF SALE, CONSUMMATION OF WHICH IS SUBJECT ONLY TO THE SUCCESSFUL TRANSFER OF THE TCT TO THE NAME’S OF THE CORONELS.
Take note of the definition: when we say inheritance , it refers to the P, R, and O which are transmitted.
THERE IS A PERFECTED CONTRACT. Aside from the suspensive condition being
As distinguished from succession (Art. 774), which is the mode of acquisition. That is the mode by which the inheritance is transmitted to the heirs.
satisfied: 1. Art. 774 of the CC, provides that the succession is is a mode of acquisition by virtue of which, the P, R and O to the extent and value of the inheritance of a person are transmitted through his death to another or others by his will or by operation of law. 2. Being the compulsory heirs of the decedent Constancio, who are called to succession by operation of law, they stepped into the shoes of their father insofar as the subject property is concerned when the latter drew his last breath. Any rights or obligations with respect to the subject property became binding and enforceable upon them. It is expressly provided that rights to succession are transmitted from the moment of death of the decedent. (Art. 777)
THE ARGUMENT THAT SUCCESSION MAY NOT BE DECLARED UNTIL THE CREDITORS ARE PAID IS RENDERED MOOT BY THE FACT THAT THEY WERE ABLE TO TRANSFER THE TCT TO THEIR NAMES. THE CORONELS ARE ESTOPPED FROM DENYING THEIR CAPACITY TO ENTER INTO AN AGREEMENT. They cannot be allowed to take a posture contrary to that which they took when they entered into the agreement with Ramona. Art. 1431 provides: through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Thus, since the Coronels represented themselves as true owners of the subject property at the time of sale, they cannot claim now that they are not the absolute owners at that time.
Even if the transfer of the TCT was not made under their names, would successsion still be declared? Yes, because it is effective upon the death of the deceased. The settlement of the creditors does not determine whether there is transfer of ownership. There is transfer from the moment of death although it might not matter whether the heirs receive something. For all we know, the obligations may exceed the assets. So the heirs are only entitled to receive the net or the excess of the assets over and above the obligations.
BALUS VS. BALUS GR 168970, January 15, 2010
The rights to a person's succession are transmitted from the moment of his death. The inheritance of a person consists of the property and transmissible rights and obligations existing at the time of his death, as well as those which have accrued thereto since the opening of the succession. In the present case, since Rufo lost ownership of the subject property during his lifetime, it only follows that at the time of his death, the disputed parcel of land no longer formed part of his estate to which his heirs may lay claim. Stated differently, petitioner and respondents never inherited the subject lot from their father.
SUBJECTS OF SUCCESSION — are the transmissible properties, rights and obligations
1. PROPERTY Different kinds of property: Real or immovable — those which cannot be moved or attached to the soil
Movable or personal — those which can be transferred from one place to another
Intangible or incorporeal — those which exist in legal contemplation but do not have physical existence; although can be represented or evidenced by a document (copyright, franchise, good will, shares of stock) Although one cannot see them, they have legal consequences. (this kind is also a movable) These properties are covered by the law on succession. Thus they are also transmissible by succession. We only have to remember that for a property to be transmitted or to be the proper subject of succession: (1) it must be licit, (2) must not be outside the commerce of man, (3) must not be res nullus (owned by no one), (4) must not be res communes (owned by the public), (5) must not be prohibited by law,
Is employment considered as a property right which can be transmitted by succession? Although it can be considered as a property right, it is extinguished by death. It cannot be passed on to the children. If you are a manager of a corporation, you are there because of your personal qualifications. One cannot expect that your qualifications are shared by his children; and therefore when you die they’re not entitled to succeed to your employment.
Is the human body capable of being appropriated? GENERAL RULE, the human body or any organ of the human body are not capable of appropriation . It is not within the commerce of man. So one cannot bequeath one’s heart to one’s girlfriend for preservation as a reminder of your eternal love.
EXCEPTION: ORGAN DONATION ACT OF 1991 or RA 7170 As of now one can donate his kidney, liver, etc. Under the said act, there are two modes: (1) by donation; (2) by will. We will only discuss by will or legacy. When we say legacy, it is a gift of personal property by will.
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How can you give by will? RA 7170 provides: Sec. 3. Person Who May Execute A Legacy. – Any individual, at least eighteen (18) years of age and of sound mind, may give by way of legacy, to take effect after his death, all or part of his body for any purpose specified in Section 6 hereof.
Sec. 6. Persons Who May Become Legatees or Donees. – The following persons may become legatees or donees of human bodies or parts thereof for any of the purposes stated hereunder: (a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation; (b) Any accredited medical or dental school, college or university — For education, research advancement of medical or dental science, or therapy; (c) Any organ bank storage facility — For medical or dental education, research, therapy or transplantation; and (d) Any specified individual — For therapy or transplantation needed by him While a probate proceeding is required for all wills, with respect to RA 7170, it is not required that the will has to be probated before the legacy can be given effect. By the very nature of the necessity of the recipient, one cannot wait for the probate.
What if it is later on probated and it is found that the will is defective? Under RA 7170, even if the will is found to be defective, as long as it was executed in good faith, then the disposition is valid and effective. With respect to properties, just remember the general rule is that the property must be owned by the decedent. One cannot give property which one does not own. There is an exception when we go to legatees and devises. 2. RIGHTS
What rights can be transmitted by succession? GR: Patrimonial rights are transmissible by succession. When you say patrimonial rights, these are rights which relate to properties. Purely personal rights are not subject to succession. They are extinguished from the moment of death
What are patrimonial rights? a) Contractual rights !
contract of lease — the lessor has the right to collect the rentals from the lessee; the lessee is entitled to remain in the property in peaceful possession of the leased premises, as long as he pays the rent. The rights arising from this contract of lease are patrimonial which are generally transmissible to the heirs by succession.
b) Right to insurance GREAT PACIFIC LIFE ASSURANCE CORP. VS. CA GR 113899, October 13, 1999
FACTS: As a housing debtor of DBP, Dr. Leuterio applied for membership in the group life insurance plan. He was given an insurance coverage to the extent of his DBP mortgage indebtedness valued P86,200. Dr. Leuterio died due to massive cerebal hemorrhage. DBP submitted a death claim to Grepalife which was denied.
unexpected demise of the mortgagor during the subsistence of the mortgage contract, the proceeds from such insurance will be applied to the payment of the mortgage debt, thereby relieving the heirs of the mortgagor from paying the obligation. In a similar vein, ample protection is given to the mortgagor under such a concept so that in the event of death; the mortgage obligation will be extinguished by the application of the insurance proceeds to the mortgage indebtedness. Consequently, where the mortgagor pays the insurance premium under the group insurance policy, making the loss payable to the mortgagee, the insurance is on the mortgagor’s interest, and the mortgagor continues to be a party to the contract. In this type of policy insurance, the mortgagee is simply an appointee of the insurance fund, such loss-payable clause does not make the mortgagee a party to the contract.
DR. LEUTERIO/INSURED DID NOT CEDE TO THE MORTGAGEE ALL HIS RIGHTS OR INTERESTS IN THE INSURANCE THUS MORTGAGOR MAY SUE IN HIS OWN NAME ESPECIALLY WHERE THE MORTGAGEE’S INTEREST IS LESS THAN THE FULL AMOUNT RECOVERABLE. The policy stated that: in the event of the debtors death before his indebtedness with DBP shall have been fully paid, an amount to pay the outstanding indebtedness shall first be paid to the creditor and the balance of sum asserted, if there is any, shall then be paid to the beneficiary/ies designated by the debtor. When DBP submitted the insurance claim against Grepalife, the latter denied payment. DBP thereafter collected the debt from the mortgagor and foreclosed the residential lot of Mrs. Leuterio. In Gonzales La O vs. Yek Tong Lin Fire & Marine Ins. Co, the Court held: Insured, being the person with whom the contract was made, is primarily the proper person to bring suit thereon. * * * Subject to some exceptions, insured may thus sue, although the policy is taken wholly or in part for the benefit of another person named or unnamed, and although it is expressly made payable to another as his interest may appear or otherwise. * * * Although a policy issued to a mortgagor is taken out for the benefit of the mortgagee and is made payable to him, yet the mortgagor may sue thereon in his own name, especially where the mortgagees interest is less than the full amount recoverable under the policy.” It also ruled that “insured may be regarded as the real party in interest although he has assigned the policy for the purpose of collection, or has assigned as collateral security any judgement he may obtain.
THE WIDOW OF DR. LEUTERIO MAY FILE THE SUIT AGAINST THE INSURER, GREPALIFE. A policy of insurance upon life or health may pass by transfer, will or succession to any person, whether he has an insurable interest or not, and such person may recover whatever the insured might have recovered. Is it necessary that the person who brings the action has insurable interest? No.
What is an insurable interest? A wife has insurable interest over the life of the husbnad because there is a relation. One is said to have insurable interst when the loss of the life of the husband or someone is prejudicial to that person. That is a requirement in insurance, that one is supposed to have insurable interest to file a claim against the insurer.
What is the requirement or condition for there to be transfer by succession? Insurable interest in succession is not material. Remember that the policy of insurance is tranmissible by will or succession. It is not required that the heirs have insurable interest. As long as the insured himself, from whom they succeeded, he is entitled to receive. So if he cannot receive then, his heirs may recover whatever the insured might have recovered.
The widow of Dr. Leuterio, Merdarda Leuterio, filed a complaint against Grepalife for Specific Performance with Damages.
c) Action for Forcible Entry or Unlawful Detainer
Grepalife alleges that the complaint was instituted by the widow of Dr. Leuterio, not the real party in interest, thus the RTC did not acquire jurisdiction over the case.
d) Action Against or by the Heirs to Compel the Execution of a Public Document
ISSUE: Can the widow of Dr. Leuterio file a suit against Grepalife? RULING: We must consider the insurable interest in mortgaged properties and parties to this type of contract. The rationale of a group insurance policy of mortgagors, otherwise known as the mortgage redemption insurance, is a device for the protection of both the mortgagee and the mortgagor. On the part of the mortgagee, it has to enter into such form of contract so that in the event of the
If the plaintiff dies before filing a case or if he dies during the pendency of the case, his right to institute the case is transmitted to his heirs.
Art. 1357 of the Civ il Code. If the law requires a document or other special form, as in the acts and contracts enumerated in the following article, the contracting parties may compel each other to observe that form, once the contract has been perfected. This right may be exercised simultaneously with the action upon the contract. If there is a contract which is valid and enforceable, even if it is oral, but for the sake of convenience, a public document is required — the parties may
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compel the other to execute the necessary public document simultaneous with an action. For example: partition (division, segregation of property among those who are entitled.) Under the law on partition, we don’t need a written document for the partition to be valid and enforceable. Partition is not a conveyance. It is succession which transfers ownership of the land. So even if there is no written agreement, and heirs already possess certain portions of the property, there is partition although not in writing. But that kind of partition cannot be registered in the Registry of Deeds. There has to be a public document for the partition to be valid and to be able to register it before the Registry of Deeds.
contract is the law between the parties. The death of a party does not excuse nonperformance of a contract, which involves a property right, and the rights and obligations thereunder pass to the successors or representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the other party has a property interest in the subject matter of the contract. How about Section 6 of their contract? The general rule is transferrability of rights and obligations. Therefore, Section 6 should be construed to refer only to transfers inter vivos and not transmissions mortis causa. What Section 6 seeks to avoid is for the lessee to substitute a third party in place of the lessee without the lessor’s consent.
(2) Contract of Usufruct For instance, when a person dies and is survivied by his heirs, the latter can compel the opposite party to execute a public document and in case of refusal, bring an action in court to compel. So the deceased’s rights here is transferrable by succession.
- under Art. 603 of the NCC, - general rule: the death of the usufructuary extinguishes the usufruct - E to the E: although the parties may stipulate otherwise (3) Agency
e) An Action to Recover Possession (publiciana/ reivindicatoria) This is different from forcible entry and unlawful detainer. Both have their respective requisites the prescriptive periods are 1 year (from demand or discovery.) If the 1 year has passed, one may still file an ordinary action for possession. The same thing, when the owner of the property dies, his rights are transmitted to his heirs. Even if the case is pending, there will just be a substitution of parties — the rights of the deceased again is transmitted to his heirs.
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f) Right to Recover Civil Liability Arising from Crime A victim is entitled to recover criminal as well as civil liability. When a plaintiff/ private complainant dies, his heirs may st ill recover.
g) Right to Recover from Torts / Neligence
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If the aggrieved party dies, his right to institute an action to recover passes to his heirs
GR
: RIGHTS WHICH RELATE TO PROPERTIES, OR WHAT WE CA LL PATRIMONIAL RIGHTS ARE TRANSMISSIBLE TO THE HEIRS.
E
: WHEN PARTRIMONIAL RIGHTS ARE NOT TRANSMISSIBLE TO THE HEIRS THROUGH SUCCESSION (1) If it is provided in the contract that the rights are not transmissible;
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like in a contract of lease; if the lessor or lessee dies, the lease will still continue until the contract expires but it can actually be stipulated in the contract that “upon the death of the lessor or the lessee, the lease contract is ex tinguished.”
INNOCENCIO VS. HOSPICIO DE SAN JOSE GR 201787, Sept 25, 1013
(4) Tenancy under RA 3844.
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Facts: What is involved here is a contract of lease. The lessee died. It was contended by the lessor that the heirs of the lessee cannot stay in the property because the lease contract was already extinguished. The rights to the contract are not transmitted to the heirs.
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According to the lessor, Sec. 6 of their contract provides: This contract is non-transferrable. Unless prior consent of the lessor is obtained in writing.
Issue: Is the right of the lessee transferred to his heirs upon the lessee’s death? Ruling: A LEASE CONTRACT IS NOT ESSENTIALLY PERSONAL IN CHARACTER. Thus, the rights and obligations therein are transmissible to the heirs. The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except when the rights and obligations
arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law. In the subject Contract of Lease, not only were there no stipulations prohibiting any transmission of rights, but its very terms and conditions explicitly provided for the transmission of the rights of the lessor and of the lessee to their respective heirs and successors. The
We can say that agency consists of patrimonial rights in the sense that one deals with property rights However, Art. 1919 of the NCC, upon the death of either the principal or agent extinguishes the agency So if an agent is authorized to collect rent from a principal’s tenants, and thus executes a SPA, then the principal dies, the SPA has no more effect. The agent can no longer get rent from the tenants upon the principal’s death. The lessee must refuse to pay the agent of the dead principal because he no longer has the authority. The authority now belongs to the heirs and not the agent. Moreover, payment to the wrong party is not valid payment. E to the E: Agency is not extinguished by death when the agency is coupled with an interest. (In the interest of the agent) Example: A got a P1M loan from P. A is the debtor and P is the creditor. As a collaterial for the loan, P required A to mortgage the latte r’s land. A is now the debtor-mortgagor and P is the creditor-mortgagee. Upon default of the debtor-mortgagor, the mortgagee can foreclose on the mortgage the proceeds of which will be used to pay the loan. We already know that there are 2 kinds of foreclosures: judicial and extra judicial. Judicial entails filing before court. Extra judicial is done out of court and is executed by the sheriff. In an extra judicial foreclosure, there is usually a SPA in the contract which is executed by the debtor-mortgagor in favor of the creditor-mortgagee, authorizing him to extrajudicially foreclose the property upon default. That is an agency. What if the debtor-mortgagor dies? Is the authority of the creditor-mortgagee now revoked? This is an example of an agency coupled with an interest. It is not extinguished by the death of either the agent or the principal. The principal can still extrajudicially foreclose the mortgage even if the debtor-mortgagor already died.
in practice, it is a very common issue in lease hold tenancy contract, the tenant involved gives a portion of the harvest to the land owner; usually happens by mere asking by the prospective tenant if he can till the land Thereafter, under RA 3844, the tenant has security of tenure thus he cannot be ejected except for reasons stated in the law Upon the tenant’s death, is the tenancy extinguished? Qualified. Under the RA 3844, if the tenant has no heirs, there is no transmission of rights. If the tenant has heirs, only one of them can be the successor. It is the landowner who will choose which one of the heirs will succeed to the right to be a tenant on his land.
(5) The right to become a partner in a partnership
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Art. 1830 One of the grounds for the dissolution of a partnership is the death of a partner. Why? Because partnership is based on trust and confidence. There is a fiduciary relationship between and among the partners. An heir cannot inherit the trust and confidence reposed by the other partners upon the deceased partner.
(6) Right to Annuity
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Art. 2027. No annuity shall be claimed without first proving the existence of the person upon whose life the annuity is constituted. Annuity is also based on the life of the person. For now a person may pay premiums then when that person reaches a certain age (i.e. 60) he or she will start receiving the pension. If you die, the heirs cannot claim that the pension should be continued because if it is based on annuity, the receipt of pension is based on a person having survived or reach a certain age
(7) Right to Revoke Donation by Reason of Ingratitude
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this can only be exercised by the donor; when he dies, his heirs can no longer revoke on his behalf
(8) Commodatum
- Art. 1939 of the NCC - A commodatum is a contract wherein one lends something then the borrower has the obligation to return
- The death of the bailor will extinguish the contract of the commodatum because it is personal in character
(9) Gratuitous deposit
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Art. 1995 of the NCC Upon the death of either depositor or the depositary, the contract of gratuitous deposit is extinguished
GR: PURELY PERSONAL RIGHTS ARE NOT TRANSMISSIBLE BY SUCCESSION. a) Parental Authority - when parents die, their authority over their children, do not transfer to another person - However under the NCC upon the death of either parent, or both parents, there is a provision which provides for substitute parental authority (but that is by law and not succession) b) Marital Rights relating to persons or property - if your spouse dies, his rights cannot be transmitted by will transmit to his brother c) An action for legal separation right to institute such belongs to the aggrieved spouse — this is extinguished upon death because the marital bond is also extinguished upon death d) Right to receive support — when the person entitled to support dies, his heirs cannot invoke the right to continue receiving that support by succession e) Right to vote
ISSUE: Which sale is valid? RULING: A PRIOR CONTRACT TO SELL MADE BY THE DECEDENT DURING HIS LIFETIME PREVAILS OVER A SUBSEQUENT CONTRACT OF SALE MADE BY THE ADMINISTRATOR WITHOUT PROBATE COURT APPROVAL. It is immaterial if the prior contract is a mere contract to sell and does not immediately convey ownership. Frank Lius contract to sell became valid and effective upon its execution and bound the estate to convey the property upon full payment of the consideration. What kind of contract was entered into by administrator of the estate? Is there a distinction between a contract of sale and a contract to sell? Usually, which has more legal weight? Contract of Sale. In a contract to sell, what happens if the buyer f ully pays the purchase price and there was prior delivery of the property, is there automatic transfer of ownership to the buyer? How about if it is a contract of sale?
Which is superior: the contract to sell of Liu or the contract of sale? Contract to sell. The contract to sell was executed and entered into by the decedent. While he was still alive, he had the authority and right to dispose of the same. The administrator in this case merely had an obligation to honor the contract to sell that was instituted previously by the decedent. The heirs stepped into the shoes of the decedent. During his lifetime, the decedent bound himself to sell the property. To execute the necessary deed of sale upon the payment of the full purchase price. So that obligation was inherited by his heirs. The latter cannot escape the obligation by selling the same property to another person. Even if the decedent himself, after he entered the contract to sell, he cannot validly sell the property, he has to respect the contract to sell. Here, the contract to sell should be prioritized over the contract of sale.
With respect to debts, is there transmission of debts to the heirs? There are several kinds of obligations which are not just monetary. Like in this particular case of Liu , an obligation in the contract to sell.
How about monetary debts? Are they transmitted to the heirs? 2 VIEWS: (1) There is no transmission because even before the distribution of the estate to the heirs, the all debts would have to be paid. If there is any residue the same will be distributed to the heirs. The heirs do not pay the debts but the estate which pays the debts (2) The debts are transmitted because although the heirs only receive the residual value of the estate after the payment so the debts. However, they also shoulder the burden or the debts in the ultimate analysis because by the payment of these debts, their share in the residue is diminished or reduced. So they also bear the burden.
f) Guardianship
ALVAREZ VS. IAC
3. OBLIGATIONS
GR 68053, May 7, 1990
Not only properties and rights can be transferred but also the debts and obligations of the decedent. Just remember that when it comes to obligations, there is a limitation on the extent of the transmission -- if is only up to the value of the inheritance. If the estate is P10M and the debts are P15M, the heirs can only be compelled to pay P10M. They cannot be made personally liable for the remaining P5M.
GR: OBLIGATIONS ARE TRANSMISSIBLE. LIU VS. LOY GR 145982, September 13, 2004
FACTS: This is about a sale of a property owned by Teodoro Vao. The Loys insist that the transaction between Teodoro Vao and Benito Liu (the predecessor-in-interest of Frank Liu) is a contract to sell. In contrast, the transactions between Teodoro Vao and Alfredo Loy, Jr. and Teresita A. Loy were contracts of sale. According to the Loys, the contract to sell did not transfer ownership of Lot Nos. 5 and 6 to Benito Liu or Frank Liu because it was only a promise to sell subject to the full payment of the consideration. On the other hand, the contracts of sale in favor of the Loys transferred ownership, as the conveyances were absolute.
FACTS: The subject property in this case was owned by Aniceto Yanes. He died. He was survived by his children. The respondents are his grandchildren. They allege that Rufino (Aniceto’s son) and children had to settle elsewhere because of the outbreak of WWII. After the liberation, when they went back to get their share of the sugar produced therein, he was informed that Santiago, Fuentebella and Alvarez were in possession. Santiago sold it to Fuentebella. TCTs were issued in the latter’s name. The property was later sold to Siason during the pendency of the case. The Yaneses prayed for the cancellation of the TCTs issued to Siason for being null and void. The lower court ruled that Alvarez are jointly and severally liable to pay damages suffered by the Yaneses. The case against Siason was dismissed being a buyer in good faith. Alvarez contends that the liability arising from the sale of the property made to Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.
ISSUE: Who is liable to pay for the damages arising from the case? RULING: GR is that a party’s contractual rights and obligations are transmissible to the successors. This is because of the progressive “depersonalization” of partimonial
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rights and duties. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i .e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other.
ALVAREZ, BEING THE HEIRS OF ROSENDO ALVAREZ, CANNOT ESCAPE THE LEGAL CONSEQUENCES OF THEIR FATHER’S TRANSACTION, WHICH GAVE RISE TO THE PRESENT CLAIM FOR DAMAGES. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the hereditary assets are always liable in their totality for the payment of the debts of the estate. THE PETITIONERS ARE ONLY LIABLE ONLY TO THE EXTENT OF THE VALUE OF THEIR INHERITANCE.
CONDE VS. ABAYA 13 Phil. 240
RULING:
JUNIO VS. COLLECTOR 34 Phil. 240
RULING:
Note: The property was already sold during the lifetime of the Dr. Alvarez. So when he died, the property was no longer part of his estate; and the judgement was rendered, the heirs were not able to enjoy the property.
ROBLES VS. BATACAN 154 SCRA 644
Why would they be liable to pay the value of the property? Because even if Dr. Alvarez parted with the property during his lifetime. The proceeds from the sale formed part of the estate of Dr. Alvarez. The heirs received the estate. Thus, they should be liable to the pay the obligation.
What is the limitation? They will only be liable to the extent of the value of their inheritance. What is the PROGRESSIVE DEPERSONALIZATION OF PATRIMONIAL RIGHTS AND DUTIES? The rights and obligations are not attached to the person. They are attached to the patrimony of the person. The person only occupies a representative capacity. For example, A owns a property, he is the representative insofar as that property is concerned. When he dies, it does not mean that his rights and obligations which pertain to that property are extinguished. His rights are transferred to whoever is entitled to receive that property by succession. It is not person to person but from patrimony to patrimony — that why there is no extinguishment of the rights and obligations even if the person dies because he is just a representative. That is the present concept that we follow. There is transmission of rights and obligations as a general rule. So with respect to debts, although there are 2 views on the matter, the more prevailing view is that the debts are transmitted. Considering that the estate is reduced by the payment of the debts, the share of each heir are eventually reduced or diminished as well. They actually beat t he burden of the debts.
Facts: Severino Geronimo worked for Petitioner Robles as a agricultural tenant for 20 years. When he died, his two sons were ejected by Robles by an ejectment suit. Atanacio and Benedicto Geronimo claim that they are entitled to succeed their father as Robles’ agricultural agricultural tenant in accordance with RA No. 119 and Section 9 of RA 3844 – which provide that he could remain in Robles’ land under the same terms and conditions of the original tenancy share arrangement entered into between Severino and Robles. Moreover, his share should also be P100 more or less per harvest every 40 days during the time he continued discharging his father’s work as his statutory successor. Robles insists that Severino was never his agricultural tenant but a watcher in his land. He did receive the sum of P100.00 every harvest but not as his share therein for that amount was given to him as a reward for his past services. The only work he did was watch over the petitioner"s land and make brooms out of the fallen coconut leaves he would gather. He sold these brooms and kept the proceeds for himself without sharing them with the petitioner
Court of Agrarian Relations: Geronimo’s are agricultural tenants of Robles. CA: affirmed. Issue: Are Private Respondents (Atanacio Geronimo and Benedicto Geronimo) entitled to succeed Severino Geronimo (their father) as Robles’ agricultural tenant?
Ruling: affirmed. Findings are supported by the evidence of record and in accord with the applicable law and doctrine.
TRIAL COURT CONCLUDED THAT SEVERINO WAS THE TENANT ON THE SUBJECT PARCEL FOR QUITE A TIME AND WAS RECOGNIZED BY ROBLES AS SUCH. He GENATO VS. BAYHON GR 171035, August 24, 2009
RULING: In applying the principle of progressive depersonalization of patrimonial
performed such tasks as supervising the harvest, cutting down bushes, clearing the land, picking up the fallen nuts, paying the laborers from his 1/3 share.
rihgts and duties the Court said that the debt contracted by the deceased still subsists against his estate.
THUS, AS THE SON OF SEVERINO GERONIMO, ATANACIO HAD THE RIGHT TO TAKE OVER AS AGRICULTURAL TENANT IN ROBLES’ LAND IN ACCORDANCE WITH R A 1199 AND RA 3844. Obviously, Atanacio was the only heir interested in succeeding his
GR : OBLIGATIONS ARE TRANSMISSIBLE Exceptions: 1) If the obligations are expressly made intransmissible by stipulation
father as his brother, Benedicto, had not seen fit to claim his right and in fact defaulted in resisting the petitioner’s claims in the ejectment suit. Significantly, when in his prayer the petitioner asks for authority to appoint the said Benedicto to succeed his father, it is presumably as his watcher only and not as agricultural tenant. The petitioner’s consistent claim, it should be noted, is that Severino Geronimo was not his tenant but only his watcher.
1) in a contract of lease, the rights and obligations of a lessee and the lessor can be stipulated to the effect that they are not instransmissible
2) Purely personal obligations 1) parental authority, marital obligation, obligation to give support
3) Criminal Liability 1) distinguish from civil liabilities arising from crime — this can be transmitted to the heirs 2) criminal liability which would consist of imprisonment or disqualification or the like cannot be transmitted (he has to serve his time; this cannot be passed on to his heirs)
MANUEL UY & SONS INC. VS. VALBUECO, INC. GR 179594, September 11, 2013
SAN AGUSTIN VS. CA 371 SCRA 348, December 4. 2001 In 1974, GSIS sold to Macaria Vda. de Caiquep a residential land with an area of 168 sqm located in Rosario, Pasig City. The TCT which was issued to Macaria had an annotation at the back stating that:
she is not allowed to encumber the property in favor of any party within 5 years from the date final and absolute ownership thereof becomes vested in the vendee, except in cases of hereditary succession or resale in favor of the vendor.
RULING:
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Macaria sold the lot a day after the issuance of the TCT to Private Respondent Menez, Jr. evidenced by a Deed of Absolute Sale. This was notarized but not registered immediately upon its execution in 1974 in view of t he 5-year prohibition to sell during the period in 1979. Menez’s house in Cainta, Rizal was ransacked by military men in 1979 for being suspected as a subversive. Subsequently, he voluntarily surrendered, was arrested and released and was in hiding until 1984. After having procured a certified copy of the TCT, upon Menez’s discovery that the TCT was missing, he declared the property for tax purposes and obtained a certification thereof from the Assessor’s Office. He also sent notices to the registered owner at her address appearing in the title and in the Deed of Sale. The search was futile.
Menez’s reliance on Alabang Development Corp vs. Valenzuela which ruled that courts must make sure that the actual owners and possessors of the land are duly notified is misplaced because the cause of action in that case is based on RA 26 (An Act Providing A Special Procedure for the Reconstitution of Torrens Certificate of Title Lost or Destroyed – wherein reconstitution is validly made only in the case the original copy of the Certificate of Title wit the RoD is lost or destroyed), while the present case is based on Section 109 of PD 1529 which involves a replacement of lost duplicate certificate.
THE PRESCRIPTION UNDER CA 141 ON SALE WITHIN THE 5-YEAR RESTRICTIVE PERIOD REFERS TO H OMESTEAD LANDS ONLY AND THUS DOES NOT APPLY IN THIS CASE. 1.
Menez, Jr filed a petition with the RTC for the issuance of owner’s duplicate copy to replace the old one. He presented the Deed of Absolute Sale. He was able to present his evidence ex-parte and the court granted his petition.
2.
Petitioner Jesus San Agustin (nephew of late Macaria – died in 1974) received a copy of the decision. He claims that this was the first time he became aware of the case of her aunt. He filed a Motion to Reopen Reconstitution Proceedings, claiming that he was the present occupant of the property and the heir of Macaria.
RTC: denied Motion CA: denied Issues: 1. 2.
3.
Is Petitioner San Agustin entitled to notice? Is the sale between Menez and Macaria void under Art. 1409(7) for being made within the 5-year prohibitory period under CA 141 or the Public Land Act
RABADILLA VS. CA
Ruling: Appeal denied. PETITIONER IS NOT ENTITLED TO NOTICE. Section 109 of PD 1529 or the Property Registration Decree provides Sec. 109. Notice and Replacement of lost duplicate certificate. In case of loss or theft of an owners duplicate certificate of title, due notice under oath shall be sent by the owner or by someone in his behalf to the Register of Deeds of the province or city where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or destroyed, or cannot be produced by a person applying for the entry of a new certificate to him or for the registration of any instrument, a sworn statement of the fact of such loss or destruction may be filed by the registered owner or other person in interest and registered. Upon the petition of the registered owner or other person in interest, the court may, after notice and due hearing, direct the issuance of a new duplicate certificate, which shall contain a memorandum of the fact that it is issued in place of the lost duplicate certificate, but shall in all respects be entitled to like faith and credit as the original duplicate, and shall thereafter be regarded as such for all purposes of this decree. Court has ruled in OCA vs. Matas that it is sufficient that the notice under Section 109 is sent to the ROD and to those persons who are known to have, or appear to have, an interest in the property as shown in the Memorandum of encumbrances at the back of the original or transfer certificate of title on file in the office of the Register of Deeds. From a legal standpoint, there are no other interested parties who should be notified, except those abovementioned since they are the only ones who may be deemed to have a claim to the property involved. A person dealing with registered property is not charged with notice of encumbrances not annotated on the back of the title. (Italics supplied.) ***In the case at bar, Petitioner San Agustin does not appear to have an interest in
the property based on the memorandum of encumbrances annotated at the back of the title. His claim that he is an heir (nephew) of the original owner of the lot covered by the disputed lot and the present occupant thereof is not annotated in the said memorandum of encumbrances. Neither was his claim entered on the Certificate of Titles in the name of their original/former owners on file with the Register of Deeds at the time of the filing or pendency of LRC Case No. R-4659. Clearly, petitioner is not entitled to notice. Moreover, there was compliance by Menez of t he RTC’s order of the publication of the petition in a newspaper of general circulation thus, this is sufficient notoce of the petition to the public at large.
Lot is not a homestead lot; as it is ownerd by GSIS under the TCT 10028 in its proprietary capacity Since it was GSIS who imposed the 5-year restrictive condition, it is GSIS and not San Agustin who had a cause of action against Menez. Without an annulment of the contract filed by the GSIS, the contract of sale remains binding upon the parties. The contract is protected by the Constitution under Sec. 10, Art. III of the Bill of Rights which states that No law impairing the obligation of contracts shall be passed.Much as we would like to see a salutary policy triumph, that provision of the Constitution duly calls for compliance. Even if the transaction between the Menez and Macaria were wrongful, still as between themselves, they were both in pari delicto, being participes criminis as it were. Neither is entitled to complain against the other. Having entered into the transaction with open eyes, and having benefitted from it, said parties should be held in estoppel to assail and annul their own deliberate acts.
June 29, 2000
Facts: In the Codicil (it has 6 conditions which I didn’t include in this digest) appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Rabadilla who is the predecessor in interest of Petitioner Johnny Rabadilla was made a devisee of a parcel of Lot 1392 of the Bacolod Cadastre (511,855 sqm.) The Codicil, was duly probated and admitted before the CFI. It provided that if Lot 1392 was encumbered, the buyer, lessee or mortgagee shall have also the obligation to respect and delivery yearly 100 piculs of sugar to Maria Marlina Coscolluela y Belleza on each month of December, 75 piculs of Export and 25 piculs of Domestic until Maria Marlina shall die. Otherwise, Maria Malina shall immediately seize this lor from the heir and latter’s heirs and turn the same over to Aleja’s near descendants. If the heirs and their heirs of Lot 1392 decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and Aleja’s sister. Lot No. 1392 was transferred to Dr. Jorge Rabadilla and TCT was issued in his name. He was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida when Dr. Jorge died in 1983. In 1989, Maria Marlena brought a complaint against the heirs of Dr. Jorge Rabadilla to enforce the provisions of the Codicil. She claims that the heirs violated the conditions of the Codicil in that: 1. Lot 1392 was mortgaged to PNB and Republic Planters Bank in disregard of the testatrix’s specific instruction to sell, lease or mortgage only to the near descendants and sister of the testratrix 2. Heirs did not delivery 100 piculs of sugar (75 export and 25 domestic sugar) to Maria Marlena from 1985 to the filing of the complaint despite repeated demands 3. The banks failed to comply with the 6th par of the Codicil which provided that in case of the sale, lease or mortgage of the property, the buyer, lessee or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to Maria Marlina. She prays that the judgement be rendered ordering the heirs of Dr. Jorge Rabadilla to return the lot to the surviving heirs of the late Aleja Belleza, the cancellation of the TCT in the name of Jorge Rabadilla and the issuance of the new TCTs in the names of the surviving heirs of the late Aleja Belleza. Feb 1990, defendant heirs were declared in default but on March 28, 1990 the Order of Default was lifted with respecvt to Johnny Rabadilla.
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The parties in the pre-trial admitted that Maria Marlina and Alan Azurin (who is the son in law of Johnny Rabadilla and current lessee of the property and acting attorney in fact of the heirs) arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to delivery 100 piculs of sugar. 1. That for crop year 1988-1989, the annuity will be delivered not later than January 1989. 2. That the annuity for crop year 1985-86, 1986-87, and 1987-88 will be complied in cash equivalent of 100 piculs of sugar and taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of P105,000. 3. The P105,000 will be paid or delivered on a staggered cash installment payable on or before the end of December of every sugar crop year = P26,250 payable on or before December of every crop year
Sale for P900. Consequently, a new TCT was issued in the name of Pamplona. The vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time that the portion of 781 square meters which was the subject matter of their sale transaction was No. 1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh. "1") although the fact is that the said portion sold thought of by the parties to be lot No. 1495 is a part of lot No. 1496. Germiniano constructed a house in Lot 1496 Son also constructed a house also in Lot 1596 Piggery was built
Issue: Are the obligations of the person who has inherited property extinguished when he dies?
Consequently, a suit was filed by the heirs of Monica Maniega seeking for the declaration of nullity of the deed of sale.
Ruling: It is a general rule under the law on succession that successional rights are
After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that there was mutual error between Flaviano Moreto and the defendants in the execution of the deed of sale because while the said deed recited that the lot sold is lot No. 1495, the real intention of the parties is that it was a portion consisting of 781 square meters of lot No. 1496 which was the subject matter of their sale transaction.
transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.
UNDER ART. 776 OF THE NCC, INHERITANCE INCLUDES ALL THE PROPERTY, RIGHTS AND OBLIGATIONS OF A PERSON, NOT EXTINGUISHED BY HIS DEATH. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Didn’t include discussion on substitution and modal institution (Art. 882 and 883)
PAMPLONA VS. MORETO 96 SCRA 775
Facts: Spouses Flaviano Moerto and Monica Maniega bought Lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate in Calamba, Laguna. Certificates of title were issued in the name of Flaviano Moreto married to Monica Maniega. They had 6 children: Ursulo, Marta, La Paz, Alipio, Pablo and Leandro. • May 24, 1959 - Ursulo died intestate; heirs are herein plaintiffs: Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio • April 30, 1938 - Marta died intestate leaving Victoria Tuiza as her heir plaintiff • July 17, 1954 - La Paz died intestate; heirs are herein plaintiffs: Pablo, Severina, Lazaro and Lorenzo Mendoza • June 30, 1943 - Alipio died intestate, leaving Josefina Moreto as his heir plaintiff • April 25, 1942 - Pablo Moreto died intestate leacing no issue and as his heirs his brother plaintiff Leandro Moreto and other plaintiffs herein. • May 6, 1946 - Monica Maniega died intestate More than 6 years after the death of Monica, Flaviano, without the consent of his heirs and before any liquidation of the conjugal partnership, sold Lot 1495 to Germiniano Pamplona, married to Apolonia Onte, evidenced by a Deed of Absolute
Flaviano Moreto died intestate on August 12, 1956. In 1961, the Plaintiffs demanded the defendants to vacate the premises where they had their house and piggery on the ground that Flaviano had no right to sell the lot which he sold to Geminiano. Spouses Geminiano and Apolonia refused.
Issue: Whether Petitioners Pamplona are entitled to the full ownership of the property in litigation or only # of the same. Ruling: THE ESTATE BECAME THE PROPERTY OF A COMMUNITY BETWEEN THE SURVIVING HUSBAND, FLAVIANO AND HIS CHILDREN WITH THE DECEASED MONICA MANIEGA IN THE CONCEPT OF A CO-OWNERSHIP because -
Pamplonas bought the lot after Monica had died Conjugal partnership of the spouses Flaviano and Monica had already been dissolved Conjugal estate had not been inventoried, liquidated, settled and divided by the heirs in accordance with law Necessary proceedings for the liquidation of the conjugal partnership were not instituted by the heirs either in the testate or intestate proceedings There was no extra-judicial partition between the surviving spouse and the heirs of the deceased spouse There are no ordinary action for partition brought for the purpose
Consequently, The community property of the marriage, at the dissolution of this bond by the death of one of the spouses, ceases to belong to the legal partnership and becomes the property of a community, by operation of law, between the surviving spouse and the heirs of the deceased spouse, or the exclusive property of the widower or the widow, it he or she be the heir of the deceased spouse. Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign or mortgage it, and even substitute another person in its enjoyment, unless personal rights are in question. (Marigsa vs. Macabuntoc, 17 Phil. 107)
PRIVATE RESPONDENTS ARE IN ESTOPPEL BY LACHES TO CLAIM HALF OF THE PROPERTY. Estoppel by laches is a rule of equity which bars a claimant from presenting his claim when, by reason of abandonment and negligence, he allowed a long time to elapse without presenting the same. Private Respondents did not complain for a period of over 9 years. Respondents and Petitioners lived as neighbors
ART. 493 IS APPLICABLE. Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involve. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. The subject lots 1495, 1496 and 4545 constitute one big land. Hence, at the time of the sale, the co-ownership constituted or covered these three lots adjacent to each other. And since Flaviano Moreto was entitled to one-half pro-indiviso of the entire
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land area or 1,173 sq. meters as his share, he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the Pamplona spouses. Indeed, there was still a remainder of some 392 sq. meters belonging to him at the time of the sale.
THE CONTENTION THAT THE SALE WAS VALID AS TO # AND INVALID AS TO THE OTHER # MUST BE REJECTED. -
Flaviano had the legal right to more than 781 sqm of the communal estate Title may be pro-indiviso or inchoate but the moment the coowner as vendor pointed out its location and even indicated the boundaries without objection by the other co-owners, the Court ruled that a factual partition or termination of the co-ownership, although partial was created and barred Flaviano and the heirs from asserting against the Petitioners any right or title in derogation of the deed of sale executed by Flaviano.
EQUITY COMMANDS THAT PRIVATE RESPONDENTS MAY NOT BE ALLOWED TO IMPUGN THE SALE MADE BY FLAVIANO. THUS THE PRIVATE RESPONDENTS ARE DUTY BOUND TO COMPLY WITH THE PROVISIONS OF ART. 1458 AND 1495 OF THE CIVIL CODE which is the obligation of the vendor of the property of delivering and transferring the ownership of the whole property sold, which is transmitted on his death to his heirs herein Private Respondents.
UNDER ART. 776, THE INHERITANCE WHICH PRIVATE RESPONDENTS RECEIVED FROM THEIR DECEASED PARENTS AND/OR PREDECESSORS IN INTEREST INCLUDED ALL THE PROPERTY RIGHTS AND OBLIGATIONS WHICH WERE NOT EXTINGUISHED BY THEIR PARENTS’ DEATH. And under Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by the deceased Flaviano Moreto took effect between the parties, their assigns and heirs, who are the private respondents herein. Accordingly, to the private respondents is transmitted the obligation to deliver in full ownership the whole area of 781 sq. meters to the petitioners (which was the original obligation of their predecessor Flaviano Moreto) and not only one-half thereof. Private respondents must comply with said obligation. The records reveal that the area of 781 sq. meters sold to and occupied by petitioners for more than 9 years already as of the filing of the complaint in 1961 had been resurveyed by private land surveyor Daniel Aranas. Petitioners are entitled to a segregation of the area from Transfer Certificate of Title No. T-9843 covering Lot 1496 and they are also entitled to the issuance of a new Transfer Certificate of Title in their name based on the relocation survey.
the trial court en consulta and the presiding judge returned said consulta and refrained from giving his opinion for lack of jurisdiction. November 14, 1933 – the trial court issued an order of declaration of heirs in the intestate of Eusebio Quitco. Socorro asked for the reconsideration of which as Ana Quitco Ledesma was not included among the declared heirs. The motion was denied, thus this appeal.
Issue #1: Whether the action to recover P1500 (the last installment of the payment of the promissory note) has prescribed. Ruling: More than ten years having thus elapsed from the expiration of the period for the payment of said debt of P1,500, the action for its recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure.
Issue #2: Whether the properties inherited by the defendants from their deceased grandfather by representation are subject to the payment of debts and obligations of their deceased father, who died without leaving any property.
Ruling: While it is true that under the provisions of articles 924 to 927 of the Civil Code, a children presents his father or mother who died before him in the properties of his grandfather or grandmother, this right of representation does not make the said child answerable for the obligations contracted by his deceased father or mother, because, as may be seen from the provisions of the Code of Civil Procedure referring to partition of inheritances, the inheritance is received with the benefit of inventory, that is to say, the heirs only answer with the properties received from their predecessor. The herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from whom they did not inherit anything. For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before the committee on claims and appraisal, appointed in the intestate of the father, for a monetary obligation contracted by a son who died before him, does not suspend the prescriptive period of the judicial action for the recovery of said indebtedness; (2) that the claim for the payment of an indebtedness contracted by a deceased person cannot be filed for its collection before the committee on claims and appraisal, appointed in the intestate of his father, and the propertiesinherited from the latter by the children of said deceased do not answer for t he payment of the indebtedness contracted during the lifetime of said person.
Petitioners are declared owners in full ownership of the 781 sqm at the eastern portion of Lot 1496.
Art. 777. The rights to the succession are transmitted from the LEDESMA VS. MCLACHLIN
moment of the death of the decedent.
64 Phil. 547
Facts: Respondents McLachlin, Quitco, Jr., Sabina, Rafael and Marcelo Quitco appeal from the decision of the CFI which declared Ana Quitco Ledesma an acknowledged natural daughter of the deceased Lorenzo Quitco and that the Respondents should pay Socorro Ledesma jointly and severally the sum of P1,500 with legal interest. Socorro lived martially with Lorenzo Quitco while the latter was single. They had a daughter, Ana Quitco Ledesma. The relationship ended in 1921, however, there is a deed executed by Lorenzo acknowledging that Ana is his natural daughter. On Jan 21, 1922, he issued a promissory note to Socorro wherein he promised to pay P2000 under the following terms: P250 to be paid on the first day of March 1922 P250 to be paid on the first day of Nov 1922 P1500 to be paid 2 years from the execution of the note Lorenzo married defendant, Conchita McLachlin. They had 4 children who are also defendants in this case. March 9, 1930, Lorenzo Quitco died and on December 15, 1932 his father Eusebio Quitco died leaving real and personal properties. Administration proceedings of said properties were instituted before the trial court. Upon the institution of the intestate of the deceased Eusebio, and the appointment of the committee on claims and appraisal, Socorro on August 26, 1935 filed before said committee the promissory note for payment. The committee elevated the same to
Upon the death of the decedent, the rights of the heirs are not transmitted but they are made effective. What is being transmitted would be the rights of the decedent along with his properties, rights and obligations. We have to correct this provision:
THE RIGHTS OF THE SUCCESSION ARE MADE EFFECTIVE FROM THE MOMENT OF THE DEATH OF THE DECEDENT. What is the consequence of this provision? It is only death that opens succession. What if your parents own several properties and they are selling those properties for only P1M although the value of the same is really P10M? Can you, as future heir question the sale? No. This is because you only have an inchoate right to the property. If you are an only child, you still cannot question the sale because until the death of your predecessors, you only have an inchoate right or expectancy. Moreover, even as the only child, you are not really sure if you can survive your parents. As long as the parents are still alive, the children cannot claim rights over the properties. They only have an expectancy. They can only claim rights if they survive because succession ispremised on the survival of the heirs. That is why even if you’re the only child, and there’s still a possibility that the child can predecease the parents — in which case the parents will inherit from the child. Without death, the rights are merely inchoate. The rights are only made effective upon the death of the decedent.
FUTURE PROPERTIES Can one enter a contract involving future properties?
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Emptio Rei Sparatae
Emptio Spei
This is an illustration of the principle that during the lifetime of the decedent the heirs only have inchoate rights. They cannot question.
sale of an expected thing
sale of a mere hope or expectancy that the thing will come to existence; sale of the hope itself
sale is subject to the condition that the thing will exist; if it does not, there is no contract
sale produces effect even if the thing does not come into existence, unless it is a vain hope
In this case, the decedent Doña Catalina had the absolute right to dispose of her properties because at the time when she disposed of the properties, she was the owner. The nephews and nieces only had an expectancy. Thus she definitely had the right to dipose of her properties and even deprive the nephews and nieces of any property.
the uncertainty pertains to the quantity and the quality of the thing and not the existence of the thing
the uncertainty pertains to the existence of the thing
object is a future thing
object is a present thing which is the hope or expectancy
GR: Future things can be the subject of contracts for as long as such will come into existence.
Exception: Cannot sell future inheritance. Again, the rights to the succession are only made effective upon the death of the decedent. What the heir has over that inheritance is merely an inchoate right or an expectancy. Exception to the Exception: We will discuss that later in partition. In cases involving partition inter vivos, one can enter into a contract even if it is a future inheritance.
LOCSIN VS. CA GR 89783, February 19, 1992
FACTS: Locsin Spouses (owners of the properties in controversy) disclosed to their lawyer that upon their death, their properties shall revert to their respective sides of the family. Mariano’s to the Locsin relatives and Catalina’s to her Jaucian relatives.
How about the contention on inofficiousness? What do we mean by inofficious? We will discuss this under legitimes and colation but just an overview: the law has allocated a certain part of the e state which we call legitime — which is the part of the estate which is reserved to the compulsory heirs. The deceased cannot deprive his heirs of the latters’ legitime without a valid ground. The value of the donations and other gratuitous dispositions done by the deceased when he was still alive, will be returned to the estate of the deceased to preserve the legitimes of the compulsory heirs — this is what we call colation. If the gratuitous dispositions exceed the free portion, thereby prejudicing the legitimes, then those donations are called inofficious. The law does not allow the decedent to deprive his compulsory heirs of their legitimes with no valid ground. Take note that this is only available to the compulsory heirs who are entitled to compulsory heirs and not to the nephews and nieces (who are only legal heirs and not compulsory heirs) in the case of Locsin.
Can the compulsory heirs impugn the dispositions made by their predecessors? During the lifetime, they cannot. But after the death, what they can question are those gratuitous dispositions. Sale cannot be impugned because even if the person parts with the property, he receives something in return. Unless it can be questioned that in reality it is really a donation. If it is a sale, it is not subject to colation. Take note that the colation can only be impugned to the extent of their legitimes and only if they survive the decedent.
Doña Catalina carried out the terms of their compact. 9 years after the death of Mariano, she began transferring by sale, donation or assignment the properties. She ratiified such transfers upon her death. The will was not submitted for probate as agreed upon.
FACTS: The lot in controversy was sold by Gimena to Felipe. This sale was made
6 years later after Doña Catalina’s demise, some of her Jaucian nephews and nieces who already received their legacies and hereditary shares from her estate contended that the properties she conveyed during her lifetime to the Locsins was inofficious and was done to circumvent the laws on succession.
The heirs of Maximo Aldon: Gimena and children filed a complaint against the Felipes. They alleged that they mortgaged the properties to the Felipes. However, when they offered to redeem the same, the Felipes refused.
ISSUE: Are Jaucians entitled to inherit the properties Catalina had already disposed of more tha 10 years before her death ? RULING: NO. The rights to a person’s succession are transmitted from the moment of his death, and do not vest in his heirs until such time. Property which Doña Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the right arising under certain circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs. - The transfers could not be inofficious because respondents are not Catalina’s compulsory heirs who are entitled to legitimes - No legitimes could be possibly impaired by any transfer of her property during her lifetime. All the respondents had was an expectancy that in no wise restricted her freedom of even her entire estate subject only to the limitation set forth in Art. 750. Art. 750. The donation may comprehend all the present property of the donor or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected.
Note: What about the allegations of the nephews and nieces that the sale was made with no consideration and these sales were inofficious and intended solely to circumvent the law? The nieces and nephews of Catalina were not the compulsory heirs and thus cannot question the transfer of such properties.
FELIPE VS. HEIRS OF ALDON February 15, 1983 without the consent of Gimena’s husband, Maximo.
ISSUE: Is the sale made by Gimena without the consent of Maximo void? RULING: VOIDABLE. The voidable contract of Gimena was subject to annulment by her husband only during the marriage because he was the victim who had an interest in the contract. Gimena, who was the party responsible for the defect, could not ask for its annulment. Their children could not likewise seek the annulment of the contract while the marriage subsisted because they merely had an inchoate right to the lands sold. The case of Sofia and Salvador Aldon is different. After the death of Maximo they acquired the right to question the defective contract insofar as it deprived them of their hereditary rights in their father's share in the lands. The father's share is onehalf (1/2) of the lands and their share is two-thirds (2/3) thereof, one-third (1/3) pertaining to the widow. The children's cause of action accrued from the death of their father in 1959 and they had thirty (30) years to institute it (Art. 1141, Civil Code.) They filed action in 1976 which is well within the period.
Note: Why did they question the sale? Because they were deprived to their hereditary rights over the property, being children of the deceased. What is the contention of the buyer here? The argument of the other party was that there was prescription. The rights of the heirs have already prescribed. They took such a long time to question the sale. The SC said that the period should be counted from the moment of death. Because the properties are transmitted to the heirs from the moment of death. Take note that the ground for the question was the sale deprived them of their hereditary rights. So they
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cannot have been deprived of their hereditary rights during the lifetime of their father. Their cause of action to invoke that right would naturally accrue from the time of death of their father. As we discussed, the heirs also could not question the sale by the father during the latter’s lifetime for the reason that they only had an inchoate right.
mentions 7 years but that is not for succession. If the person disappears after the age of 75, 5 years is sufficient.
(b)
Qualified or Extraordinary Presumption
Art. 391. The following shall be presumed dead for all purposes, including What is the nature of the sale in the case? Voidable. There was a 10-year period where that could be impugned. At that time, that kind of sale was considered as voidable. What would be the nature of that kind of sale if it was made during the effectivity of the FC? The sale would be void. Based on the case of Fuentes vs. Roca, the same would be void. Even if they got married during the Civil Code, as long as the sale took place during the effectivity of the Family Code, the sale is void. With more reason if the marriage is celebrated during the effectivity of the Family Code, the sale done is during the effectivity of the Family Code, it would be void for being without the consent of t he other spouse. Let’s go to the concept of death. We know that the properties, rights and obligations are transmitted from the moment of death. So the rights to the succession are made effective from the moment of death of the decedent. Death is the key word here. Without death, there can be no succession. Because death is inevitable, there’s succession.
the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of or for 4 years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for 4 years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for 4 years. So here, there is danger of death, qualified or extraordinary presumption. Because of the danger of death, the law gives only 4 years for the presumption to set in. Take note of those circumstances. Remember in your Family Code, these things are also discussed? How long
can a person be presumed dead for the abandoned spouse to be remarried again? Ordinarily, 4. If there is danger of death, only 2 years. That is for remarriage, for succession, it takes a longer time for the presumption to set in.
WHAT KIND OF DEATHS OPEN SUCCESSION?
Definition under the Organ Donation Act of 1991: Sec. 1 (j). “Death” -- the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either:
As to the counting of the period, if it is ordinary presumption, the date of death will be presumed to be 10 years later. What is the importance? The value of his estate will be computed based on his value after his presumed death 10 years later. If there are acquired properties before he is presumed dead, it will be part of the estate. (Why is he able to acquire properties if he is “dead”.) Those properties will be distributed to his heirs. For purposes of computing the estate tax, it shall be based on the time of the death (10 years later.)
(1) In the opinion of the attending physician, based on the acceptable
How about qualified or extraordinary presumption? 4 years. If he
standards of medical practice, there is an absence of natural respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time these functions ceased; or (2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions; and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in resorting such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared.
participated in Marawi in 2000, he may be considered dead in 2004. Date of death would be 2000. Why? Because the danger of death happened in 2000.
The death of the person shall be determined in accordance with the acceptable standards of medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitably experienced in the care of such parties. The death shall be recorded in the patient's medical record.
Mrs. Lucero contended that she is entitled to the salary of her husband since he is not yet presumed dead — the 4 year period has not expired.
1. In PHYSICAL OR A CTUAL D EATH, there is no question that there should really be succession because the person is already gone.
EASTERN VS. LUCERO 124 SCRA 326
FACTS: Capt Lucero died in the vessel en route to HongKong. Upon the receipt of his radio messages to the Company, it ordered the search and rescue operation among others. M/V astern Minicon through its surveyors, confirmed the loss of the vessel. Thereafter, the Company paid the corresponding death benefits to the heirs of the crew members, except respondent Josephine Lucero, who refused to accept the same.
ISSUE: Is Mr. Lucero dead for all purposes? RULING: YES. Company received three (3) radio messages from Capt. Lucero
When we say “for the purposes of succession,” it refers to the purpose of distributing the properties to his heirs.
on board the M/V Eastern Minicon the last of which, received at 9:50 p.m. of that day, was a call for immediate assistance in view of the existing "danger": "sea water was entering the hatch"; the vessel "was listing 50 to 60 degrees port," and they were "preparing to abandon the ship any time.' After this message, nothing more has been heard from the vessel or its crew until the present time. There is thus enough evidence to show the circumstances attending the loss and disappearance of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically. are sufficient to lead Us to a moral certainty that the vessel had sunk and that the persons aboard had perished with it. upon this premise, the rule on presumption of death under Article 391 (1) of the Civil Code must yield to the rule of preponderance of evidence. As this Court said in Joaquin vs. Navarro "Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls."
When do we consider someone presumptively dead? 10 years, when he is
Note: Art. 391 cannot apply in this case because the presumption of death
absent and his whereabouts are unknown — uncertain whether he is dead or alive. After that, his estate can now be distributed by succession. The law
needs to give way to the actual preponderance of evidence when in fact Capt Lucero during the capsizing of the boat. That the attending circumstances at the case at bar, point with certainty to the death of Capt. Lucero.
2. PRESUMED DEATH OR PRESUMPTIVE DEATH (a)
Ordinary Presumption
Art. 390. After an absence of 7 years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of 10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened.
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What rule should govern here?
The rule on preponderance of evidence. Although we have the rule on presumptions. But the SC said, if there are facts which are known or knowable from which a rational inference can be gathered that the person had already perished, we don’t stick to the presumption. The rule on presumption should yield to the preponderance of evidence. Thus, here to wait for 4 years is not necessary to declare Capt Lucero dead.
When there is already death, whether actual or presumed, the the rights of the heirs become vested. No longer are those inchoate or an expectancy. As a consequence, what can the heirs do?
EMNACE VS. CA 370 SCRA 431, November 23, 2001
FACTS: After Vicente Tabanao’s death, the partnership of Tabanao, Emnace and Divinagracia was dissolved. Emnace failed to submit to Tabanao’s heirs any statement of assets and liabilities of the partnership, and to render an accounting of the partnerships finances. Petitioner also reneged on his promise to turn over to Tabanaos heirs the deceaseds 1/3 share in the total assets of the partnership, amounting to P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for payment thereof — thus this complaint. Emnace asserts that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was never appointed as administratrix or executrix of his estate
ISSUE: Do the heirs of Tabanao have standing to file this case? RULING: The surviving spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her children are complainants in their own right as successors of Vicente Tabanao . From the very moment of Vicente
Tabanaos death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent. Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted. Moreover, respondents became owners of their respective hereditary shares from the moment Vicente Tabanao died.
Note: From the moment of death of the decedent, the heirs step into his shoes.
What did the heirs inherit? Did they inherit the right to become partner? The heirs did not inherit the right to become a partner since it is personal. In fact, the death of the partner dissolves the partnership. What the heirs inherited here is the right of the deceased partner to demand for the accounting and distribution of the assets. Moreover, there was already dissolution of the partnership prior to the death of Tabanao. The important point that you have to remember here: it is not necessary for the heirs to be appointed as executors or administrators before they can file cases for and in behalf of the estate. In their own right as heirs, from the moment of death, because of succession, they step into the shoes of their predecessors. In this case, the wife and the children step into the shoes of Tabanao. Tabanao himself during his lifetime had the right to institute the action. When he died, these rights were inherited by his heirs.
ADMINISTRATOR VS. EXECUTOR 1) Administrator/Administatrix — latter is the lady counterpart; he or she is appointed to administer the estate (applicable whether there is a will)
2) Executor/Executrix — he or she is appointed by the testator or testatrix in the latter’s will as the administrator/administatrix to administer.
In Emnace, there was no appointed executor/administrator yet so the parties may file a case for and in behalf of the estate in their own right as heirs.
RIOFERIO VS. CA GR 129008, January 13, 2004
FACTS: Children-heirs of deceased in the 1st marriage found out about the extra judicial settlement made by 2nd family. they filed a petit ion for annulment of the EJ settlement. Paramour of deceased contended that property subject of the contested deed of extra-judicial settlement pertained to the properties originally belonging to the parents of Teodora Riofero and that the titles thereof were delivered to her as an advance inheritance but the decedent had managed to register them in his name. Petitioners also raised the affirmative defense that respondents are not the real parties-in-interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration proceedings.
ISSUE: Do the Orfinadas have the capacity to sue? RULING: YES. Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed. This is the proper modality despite the total lack of advertence to the heirs in the rules on party representation, namely Section 3, Rule 3 and Section 2, Rule 87 of the Rules of Court.
Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz : (1) if the executor or administrator is unwilling or refuses to bring suit; and (2) when the administrator is alleged to have participated in the act complained of and he is made a party defendant. Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as compelling when there is no appointed administrator, if not more, as where there is an appointed administrator but he is either disinclined to bring suit or is one of the guilty parties himself. (3) when there is no appointed administrator (like in this case)
Note: Even if there is already a proceeding which is pending for the appointment of the executor/administrator, as long as nobody has been appointed, anyone of the heirs may file actions for and in behalf of the estate. How about if there is an appointed executor/administrator? Can the heirs still institute actions on behalf of the estate? The general rule is that the appointed administrator the exeutor should institute the actions on behalf of the estate.
In Rioferio, there are 2 instances stated where the heirs may still file an action despite of the appointment of an administrator/executor. 1. If the executor/administrator is unwilling or refuses to bring suit 2. When the administrator is alleged to have participated in the act complained of and he is made a party defendant.
GR: If there is an appointed administrator or executor, he should be the one to file actions for and in behalf of the estate. E: The heirs may still institute an action when: 1. The executor/administrator is unwilling or refuses to bring suit 2. The administrator is alleged to have participated in the act complained of and he is made a party defendant. WHEN WILL OWNERSHIP START? Remember the basic principle: Upon the death of the decedent, the heirs step into his shoes. The properties, rights and obligaitons are transmitted. What they have is no longer inchoate or a mere expectancy — but a vested right. Since a will can only be given effect or there can be a transfer of the properties, rights and obligations only after the will has been probated — When will ownership start? From the time of death of the decedent or from the probate of the will? Again, the transmission happens at the moment of death — Even if the will is probated much later. In the meantime when the will is not probated, although they have rights, they cannot invoke the will. They have to probate the will first.
How about if there is an extrajudicial settlement, when will the ownership of their lot, start? FROM THE MOMENT OF DEATH — Even if the extrajudicial partition or the affidavit of self-adjudication (if there is only one heir) is executed or done later.
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LLENARES VS. CA GR 98709, May 13, 1993
FACTS: Zabella and Llenares were co-owners in equal shares of the property in queston. Llenares sold his 1/2 share to Ariston Zabella (father of Zabella). Llenares was survived by his only child, Petitioner. Zabella was survived by his niece, Irene Catapat and Juan Zabella. Zabella filed an adverse claim over the whole lot.
ISSUE: Whether Zabella lost his right to possess the lot. RULING: THE EXISTENCE OF THE OCT OVER THE LOT IN THE NAME OF JUAN ZABELLA’S NAME PROTECTED THE PETITIONER AS THE SOLE HEIR OF ANASTACIO LLENARES. There is no law which requires her, as a sole heir, to execute an affidavit of adjudication and cause both the cancellation of the OCT and the issuance of a new one in her name and in the names of the heirs of co-owner Juan Zabella in order to transfer the ownership of the property to her, or protect her rights and interests therein. The transfer in her favor took place, ipso jure, upon the death of Anastacio Llenares.
What if the testator provides that the heirs will not get the property until after 10 years from his death? What is the consequence of that provision? When will the ownership start?
GR: WHEN WE ARE TALKING ABOUT COMPULSORY HEIRS, AS A GENERAL RULE, ARE ENTITLED TO THEIR LEGITIMES. The testator cannot impose any condition, burden or incumbrance whatsoever upon the legitime. That is not allowed by law because if the testator is allowed to do so, he might impose very difficult conditions or burdens in such a way that the legitimes of the compulsory heirs are effectively defeated/deprived of their legitimes.
E: THE TESTATOR MAY PROHIBIT THE PARTITION OF THE LEGITIME IN THE FF. CASES 1. The testator may prohibit the partition for forced heirs for a maximum period of 20 years. This only applies to the compulsory or the forced heirs. 2. The decedent may provide or limits in devises or voluntary inheritance whose inheritance is by reason of the generosity or liberality of the testator — not entitled as a matter of right.
Note: There was an self-adjudication later executed but the transfer took place from the moment of death by operation of law.
PRESUMPTIONS UNDER THE RULES OF CO URT. Rule 131, Sec. 3 (kk). That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5a) For the purpose of succession, we have no presumption as to who died first. In some cases where a child is 18 years old and the other is 80 years — the one who is 18 years old will be presumed to died later. We do not have this in succession. Whoever alleges that the father died before the son or the son died before the father has to present evidence. In the absence of any evidence, then the law says they shall be presumed to have died at the same time. The legal consequence in this case is that there is no succession from one to the other.
INING ET AL VS. VEGA GR 174727, August 12, 2013
HEIRS OF TOMAS C ALIPATURA SR. VS. PRADO GR 156879, January 20, 2004
IN THE MATTER OF GUARDIANSHIP OF THE LAVIDES VS. CITY COURT OF LUCENA GR L-50261, May 31, 1982
BONILLA VS. BARCENA
Let’s recap: GR: There is no succession during the lifetime of the decedent. The heirs only have an inchoate right or a mere expectancy.
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E: Even during the lifetime of the decedent, the heirs can already inherit in a concept of FREAK SUCCESSION.
BORROMEO-HERRERA VS. BORROMEO 152 SCRA 172
Why is it called freak succession? It is unusual. It does not usually happen as death opens succession.
1. Annulment of Marriage or Declaration of Nullity of Marriage Part of the decree of the court will be for the delivery of the presumptive legitimes of the children. Presumptive legitime — possible legitime that these children will get as if their parents are dead.
DELA MERCED VS. DELA MERCED February 25, 1999
GAYON VS. GAYON November 26, 1970
Why is there a need of the delivery of the presumptive legitimes? The law prevents the co-mingling of the properties of the dissolved marriage and the new marriage when the ex-spouses remarry other people. This will protect the property rights of the children.
PALICTE VS. REMOLETE September 21, 1987
What happens when the parents/ex-spouses actually die? Then the presumptive legitimes shall be considered as advances and the amount lacking to satisfy the “legitime” will be added. going back..
GEVERO VS. IAC GR 77029, August 30, 1990
Transfer happens upon death even if the will is probated later on or even if the heirs executed an extrajudicial partition much later, the reckoning point is the moment of death.
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SUAREZ VS. CA GR 94918, September 2, 1992
LORENZO VS. POSADAS 64 Phil 353
Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. BASIC CLASSIFICATION OF SUCCESSION: 1. Testamentary (Art. 779) 2. Legal 3. Mixed (Art. 780)
Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. TESTAMENTARY SUCCESSION
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there is a will take note under Art. 779, there must be a designation of heirs; so the testator should designate a person who will receive the properties in the will for it to be considered as such
What if there is no recipient in the will? If the document merely mentions an appointment of an executor is it a will? Although, valid is not a will.
How about the document acknowledging an illegitimate child, is that a will? No because there is no designation of an heir.
How about a document which contains only a disinheritance, is it a will? YES. Will be discussed later on.
court which takes frist cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. Thus, having filed the petition at 8AM whereas the other petition before the CFI Bulacan was filed at 11AM, it is CFI Rizal which has jurisdiction.
ISSUE: Which court has jurisdiction? RULING: CFI OF BULACAN HAS JURISDICTION. 1) Sec. 3, Rule 76 provides (old Rule 77) provides SEC. 3. Court to appoint time for proving will . Notice thereof to be published. — When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. 2) The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to
the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable. Therefore, the estate proceedings having been initiated in CFI Bulacan ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts. 3) The Petitioners commenced intestate proceedings after they learned of the delivery of Fr. Rodriguez’s will to the CFI Bulacan, was in bad faith — patently done to divest the latter court of the precedence awarded to it by the Rules 4) In our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since testacy only takes place in the absence of a valid operative will. Art. 960 provides certain grounds when legal or intestate succession may take place. Therefore, as ruled in Castro, et al. vs. Martinez , 10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending.
Note: What was the provision under the rules of court which they relied upon? Rule 73, Sec. 1.
PRINCIPLES IN TESTAMENTARY SUCCESSION: 1. If there is a will, it has to pass probate 2. TESTAMENTARY SUCCESSION IS PREFERRED OVER INTESTATE SUCCESSION.
What if the will is allowed in the probate proceedings? What will happen to the intestate proceedings? The intestate proceedings will not proceed anymore. If the
Why? Because when a person executes a will, the contents of that document are his wishes.He wants those provisions (his wishes) to be complied with. Unlike in legal succession, there is no will, the properties will be distributed in accordance with law.
will is allowed, then the properties shall be distributed in accordance with the will. If the will is disallowed, the intestate proceedings shall now continue. If the will is void, the properties shall be distributed in accordance with legal succession which is the subject of the intestate proceeding.
What is the consequence of such preference? Let’s discuss the case of Rodriguez vs. Borja
RODRIGUEZ VS. BORJA 17 SCRA 41
One of the reasons why the probate was allowed: Testacy is favored over intestacy. Another reason is that the will was delivered to the court before the intestate proceeding was filed. This is in accordance Sec. 3, Rule 77. The probate court acquired jurisdiction before the court where the intestate proceedings were filed.
FACTS: This involves the alleged will of Fr. Celestino Rodriguez who died on Feb 12, 1963. On March 4, 1963, Pangilinan and Jacalan delivered to the Clerk of Court of Bulacan a last willl and testament of Fr. Rodriguez.
BALANAY, JR VS. MARTINEZ 64 SCRA 452
FACTS: Leodegaria Julian, from Sta. Maria, Ilocos Sur died on February 12, 1973 in
On March 12, 1963, Petitioners Rodriguez filed before the CFI of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging that he died without a will.
Davao City at the age of 67. She was survived by her husband, Felix Bacanay Sr. and their 6 legitimate children: Felix Balanay Jr., Avelina, Beatriz, Carolina, Delia, and Emilia.
On March 12, 1963, Pangilinan and Jacalan filed a petition in CFI Bulacan for the probate of the will they delivered on March 4, 1963.
Felix Balanay Jr. filed in the lower court a petition for the probate of his mother’s notarial will, dated Sept 5, 1970, which is written in English. Therein, Leodegaria Julian declared that among others: After her husband’s death, her paraphernal lands and all conjugal lands (which she referred to as “hers”) should be divided and distributed in the manner set
Petitioner Rodriguez opposed the probate on the ground that CFI Bulacan did not have jurisdiction over the matter — relying on Rule 73, Sec. 1 which states that the
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forth in that part of her will. (she devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband’s # share of the conjugal assets Felix Balanay Sr and Avelina opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. They insist that Felix Balanay Jr. should collate certain properties which he had received f rom the testatrix. Felix Jr.’s reply to the opposition had an attachment of an affidavit of Felix Sr.’s withdrawal of his opposition to the probate. Felix Sr. signed “Conformation (sic) of Division and Renunciation of Hereditary Rights” wherein he renounced his hereditary rights in Leodegaria’s estate and favor of the 6 children. In the same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Avelina contended that the affidavit and “conformation” were void. Lower court denied the opposition and gave effect to the affidavit and conformity if Felix S r.
Lower court: Will is void. Dismissed the petition for the probate and converted the testate proceeding into an intestate proceeding. The creditors were notified.
ISSUE: Whether the probate court erred in passig upon the intrinsic validity of the will before ruling on its allowance or formal validity, and in declaring it void. RULING: PROBATE COURT ERRED IN DECLARED THAT THE WILL WAS VOID AND IN CONVERTING THE TESTATE PROCEEDING INTO AN INTESTATE PROCEEDING NOTWITHSTANDING THE FACT THAT IT GAVE EFFECT TO THE WIDOWER’S CONFORMITY TO THE WILL AND TO HIS WAIVER OF HIS HEREDITARY RIGHTS. Art. 792 provides that he invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. Where some of the provisions of the will are valid and other invalid, the valid parts will be upheld if they can be separated form the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries. - Two interpretations: (1) will is void because Leodagaria also disposed of properties which are not her own but are conjugal properties also owned by Balanay Sr. and thereby preteriring Balanay Sr. ; or (2) will is valid because Balanay Sr. wavied his share in the conjugal partnership
LOWER COURT ERRED IN NOT PROCEEDING WITH THE PROBATE WILL. 1. 2.
3.
The lower court did not cancel its order to proceed with the probate when it accepted the validity of the Conformity and affidavit of Felix Sr. General rule is that the probate of the will is mandatory. It is the probate court’s duty to pass upon the formal validity of the will only in cases where the will on its face is intrinsically void. As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby." Testacy is favored. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of a will (Arts. 788 and 791 of the CC) Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole est ate. Intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect.
Note: What are those provisions in the will which were alleged to be void? What is the problem with the provision when the testatrix disposed of all the conjugal lots and declared that these should be partitioned in the manner that is stated in the will? Why is testacy favored than intestacy? The provisions disposing of the conjugal lots is generally void because you cannot dispose of the properties which do not solely belong to you. There is another interpretation: since there was a waiver which was executed by the husband, the provisions were made valid by the court. The 2nd interpretation, which will render the will valid was adopted by the SC in this case. Such interpretation shall take preference over the interpretation that will nullify of a provision of a will.
Art. 780. Mixed succession is that effected partly by will and partly by operation of law. MIXED SUCCESSION — that effected partly by will and partly by operation of law In what instances can there be mixed succession? 1. When the will does not dispose of the entire estate. The rest will be disposed in accordance with law.
2. When there is a will but there are certain portions of the will which are not valid.
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like when the deceased left properties in favor of his lover or kabit; those provisions in the will are void and the properties will be distributed among the heirs in accordance with legal succession
UNIVERSAL SUCCESSION — this refers to the inheritance of heirs ; persons are designated to the universality of the estate or to an ideal share/spiritual share/ fractional of the estate (which should be the net of the properties rights and obligations) ; when that is the case, the person is an heir and his succession is universal succession I hereby give to A all my properties. A is an heir. I hereby give to A 1/4 of my properties. A is an heir. I hereby give to A 20% of my estate. A is an heir. Here it cannot be determined with particularity which will be given.
PARTICULAR SUCCESSION — refers to the succession of legatees and devisees who are given specific properties legatee — person to whom a particular personal /movable property has been given devisee — person to whom a specific immovable /real property has been given As to the part of the property transmitted:
COMPULSORY OR FORCED SUCCESSION — referring to the compulsory heirs who are entitled to receive legitimes
VOLUNTARY SUCCESSION — those who are instituted the free portion of the estate ; they are not compulsory heirs; they can be omitted in the will
CONTRACTUAL SUCCESSION — refers to the donation of future property between spouses by reason of marriage . Under the law, this shall be governed by the provisions of testamentary succession and the formalities of wills. As to LEGAL OR INTESTATE SUCCESSION , which is mentioned in Art. 778, there is no actual definition given by the law. Although in Art. 960, we may find the list which enumerates instances when legal or intestate succession takes place. Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity ; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator , or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding , except in cases provided in this Code. Basically, when you say legal or intestate succession , the distribution is by operation of law. There is no will which takes part in the distribution.
Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. HEIR IS ALSO ENTITLED TO THOSE WHICH HAVE ACCRUED TO THE PROPERTY INHERITED SINCE THE OPENING OF SUCCESSION. The inheritance consists of the properties rights and obligations which are transmissible.
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Under Art. 781, the law provides that not only the properties which exists at the time of his death (those which were inherited by an heir at the moment of death of the decedent) but also those which have accrued thereto since the opening of the succession (whatever is added or incorporated in the property inherited such as the fruits, the income after the death shall also go to the devisee or legatee.)
Illustration: A dies. In his will, he left B a building which was rented by C by virtue of a contract of lease which is to expire in 2011. A died in 2000. The will was probated and given effect in 2010. The ownership is deemed to have transmitted to B upon the death of A, thus B is entitled to aside from the building which was devised to him, the rent which accrued to the building, as well. If there are collectibles on the building, such as rentals this is covered by Art. 793. Again, just remember that prior the death of the testator/decedent, the heir only has an inchoate right or mere expectancy. He does not have any rights as to the rental or collection thereof.
anything from the deceased in the absence of a will. Unless they are also legal heirs as the law enumerates those who are legal heirs. So when you are asked:
Are all compulsory heirs legal heirs? YES. ( legitimate children and descendants,; in their absence, legitimate parents and ascendants; surviving spouse; illegitimate children) They all become legal heirs if there is no will.
Are all legal heirs compulsory heirs? NO. The list of legal heirs are longer as the ff. are also included: brothers and sisters, nephews and nieces, uncles and aunts. When it comes to the direct line in legal succession, one may inherit. There is no limitation — although must observe the rule on proximity which provides that the nearer relatives exclude those who are farther. As to the collateral line, those who are relatives within the 5th civil degree of consanguinity , they are legal heirs.
RELATION OF ACCESSION AND ART. 781. Remember in accession, (law on property) the owner of the principal is the owner of those which are added to or incorporated to the property. You can apply that principle here, because from the moment of death, the heir already becomes the owner. If there are accessions such as fruits, and additions to the property, the heir owns the same by being the owner.
ACCRETION AND ART. 781 Remember also that when a person owns a titled land, the land adjoins a river, because of the action of the water, gradually the land increased in size — so there’s accretion. The accretion is owned by the owners of the land adjoiniing to the river to which the accretion attached. Under land registration, since the accretion is not included in the titled land as it is merely an addition, it is not protected by the Torrens System thus making it susceptible to acquisitve prescription. Illustration: If the accretion happened during the life of the testator, and only the 10 hectares was stated as given, is this covered by Art. 781? No. Under Art. 793, it is not covered.
BUT, if testator dies and the accretion has not happened yet, who owns the accretion? Under Art. 781, it is the heir who owns the accretion . The law says: those which have accrued to the property since the opening of succession. Since the accretion happened after the death of the testator, it was already owned by the heir since ownership transmits upon the death.
Art. 782. An heir is a person called to the succession either by provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. DEFINITION OF HEIRS, DEVISEES A ND LEGATEES. heir — a person called to the succession either by will or by operation of law legatee — person to whom a particular personal /movable property has been given
devisee — person to whom a specific immovable /real property has been given We have already discussed universal succession as compared to particular succession. The 1st paragraph of Art. 782 talks about universal succession. The 2nd paragraph refers to particular succession. In testamentary succession, we have: 1. compulsory heirs (those entitled to receive legitimes.) 2. voluntary heirs (those are not entitled to receive legitimes but are nonetheless instituted in the will) The estate in testamentary succession is divided into 2: (1) legitime and (2) the free portion. legitime — reserved to the compulsory heirs free portion —
HEIRS
LEGATEES
DEVISEES
heirs succeed by general right or universal title to all or fraction of aliquot part
they succeed by special or particular title
the term heir exists both in testamentary and intestate succession
the term legatees and devisees exist only in testamentary succession
the heir if compulsory, succeeds to the inheritance regardless of the will of the decedent; the legitime which is preserved by law for compulsory heirs
legatees and devisees succeed only by reason of the testator's will
for heirs, the quantity of the inheritance cannot be determined until after the liquidation of the properties of the estate
the quantity can be easily determined
the heir represents the juridical personality of the deceased, acquiring his properties, rights and obligations (by the fact that they succeed to the estate, they step into the shoes of the decedent; they can now represent the testator or his estate in cases instituted on behalf of the estate)
legatees and devisees do not represent the juridical personality of the deceased/estate (as they only acquire certain properties or rights whereas heirs they succeed to the properties, rights and obligations ) legatees and devisees succeed to the determinate thing or the amount given
the heir succeeds to the remainder of the estate after the payment of all the debts, devises and legacies (an heir’s share is residual)
(as to voluntary heirs and legatees and devisees, there is preference to the shares of the latter for the estate is distributed as follows: (1) legitime; (2) legacies and devises; (3) those for voluntary heirs)
Why do we need to know the distinctions? Because there are two important consequences: (1) Under Art. 793, when you are legatee, you only get the property given which exists at the time of the execution of the will; properties acquired after the execution of the will, as a general rule is not included (2) In preterition under Art. 854, if you are a voluntary heir, and there is preterition, you are not entitled to receive anything. But if you are a legatee or devisee, even if there is preterition, such are still entitled to receive the devise or legacy as long as the same is not inofficious.
Can you institute a compulsory heir also as a voluntary heir? Yes. If the testator or the deceased does not have a will, the compulsory heirs may still be able to get from the deceased. Although, voluntary heirs are not allowed to get
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Chapter 2
TESTAMENTARY SUCCESSION
This is also the reason why juridical persons (i.e. corporations, partnerships) cannot execute wills. They cannot physical existence, sound mind and thus cannot have animus testandi.
Section 1. — Wills Subsection 1.
MONTINOLA VS. HERBOSA
Wills in General
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. DEFINITION OF A WILL Art. 783 gives us a definition of wills. A will is an act of the testator whereby he is permitted to control to a certain degree the disposition of his estate, and which will take effect after his death. Based on this definition, we can see the elemtents and characteristics of wills. Even if the law says that a will is an act, because under the new civil code, there are two kinds of wills both of which must be in writing a will can also be defined as an
instrument in which the dispositions of the person effective mortis causa are embodied.
COURT OF APPEALS CASE
FACTS: The subject here is the Mi Ultimo Adios poem of Jose Rizal. There is a part where he said “To you I give all of my parents, kindred and friends…” It was argued that such are provisions which constitutes a will.
ISSUE: Is Mi Ultimo Adios a holographic will? RULING: NO. 1. Rizal’s “Ultimo Adios” is a literary piece of work and it was intended to 2.
3.
ELEMENTS AND CHARACTERISTICS OF WILLS : PASSUCFRIDM (1) Personal Testamentary power cannot be delegated. Will making is a personal act of the testator. The provisions in the will must come from the testator. He cannot tell or ask another person to decide how his properties shall be distributed. It must be his own decision.
We have 2 kinds of wills: (1) notarial or ordinary wills — Even if the lawyer drafts the will, the contents should come from the testator; the lawyer will just arrange it in such a way that it is better understood; that the legalities are complied with and the form is observed. (mechanical act of drafting can be delegated) (2) holographic wills — Here, of course it should be written by the testator himself as well as it should mirror the testator’s last wishes as to the disposition of his properties. (everything must be in the handwriting of the testator) Wills are also confidential. For your eyes only. That is why under the NCC, there is a provision that the notary public before whom the will is acknowledged is not required to keep a copy of the will; and is also not required to submit a copy to the clerk of court — despite the fact that under notarial practice, lawyers are reqired to keep the original when they acknowledge a document for the purpose of certification of copies in the future.
In evidence under the Rules of Court , the different kinds of public documents are enumerated therein — one of which refers to those which are documents acknowledged before a notary public except wills. So the Rules of Court expressly exempts a will from the definition. Even if it is notarized or acknowledged, it does not become a public document. Why? Because wills are personal and confidential. Otherwise, it would be easy for anyone to go to the lawyer’s office or clerk of court or archives to get a copy which is dangerous.
(2) Animus Testandi When you say “animus testandi,” there must be intent to make a will. When a person drafts his last will and testament, he should do it with an understanding that this document will transfer all his properties mentioned to the persons designated, upon death. In short, he should understand the legal consequences of his act. This is the reason why under the NCC, one of the requirements of
testamentary capacity is that the testator should have a sound mind. No one can have animus testandi without a sound mind.
4.
be so. If it were intended to be a will, it would have been entitled “Ultima Voluntad” The third line of the 13th stanza of the poem, expressed a thought of parting and not bequeathing. Rizal at that time had no known properties to bequeath. The word “dejo” means “leave” and not “give” as was wrongly translated by Charles Derbyshire. There is no animus testandi. An instrument which merely expresses a last wish as a though or advice but does not contain a disposition of property and was not executed with animus testandi , cannot legally be considered a will. Such instrument like Rizal’s “Ultimo Adios” may be considered a in the grammatical sense, but not in the legal or juridical sense. Assuming arguendo that it was a holographic will, it is void for not complying the the provisions of the Spanish Code.
(3) Statutory The privilege to execute a will comes from statute — so it is not an inherent right, it is not a natural right in a sense that without the statute providing for succession by a will, dispositions by a will cannot happen. There are some countries whose citizens do not have the privilege to execute wills simply because they do not have laws providing for succession.
Because it is just a privilege, the law can actually control/limit testamentary power. (4) Solemn There are solemnities and formalities which must be observed in the execution of wills.
GR: failure to comply with these formalities would result to the disallowance of the will; thus making the will void
(5) Unilateral The testator cannot condition the making of the will upon the consent or act of another. Whether his will shall be valid should not depend on another person. The validity solely depends on the testator. Unlike contracts which are essentially bilateral, this would require the consent of at least 2 parties. In wills, it is only the consent of the testator that is required. The validity of such should be dependent upon another person. Consequently, there are provisions under the NCC prohibiting bilaterial dispositions. Like the concept of disposicion captatoria which will be taken when we go to legacies and devises. It provides that the testator cannot condition his grant to be dependent upon whether the other person also makes him a legacy or devise. A testator cannot give a property to a devisee or legatee on the condition that the latter also make him a devisee or a legatee. Such disposition is void because it makes the testamentary disposition bilateral. It converts the will into a contract. Wills should just be unilateral.
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VITUG VS. CA 183 SCRA 755
individual act of the testator. Here 2 persons mutually agreed as to the disposition of the joint savings account.
FACTS: This case involves the probate of the 2 wills of the late Dolores Luchango Vitug. Romarico (husband) filed a motion before the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate amounting to P667,731.66 plus interests which he claimed were personal funds withdrawn from the savings account in Bank of America. This was opposed by Rowena Corona (the executrix) on the ground that the same funds withdrawn from the Bank of America were conjugal partnership properties and part of the estate — thus there was no ground for reimbursement. Vitug insisted that the funds are his exclusive property having acquired them through a survivorship agreement executed with his late wife and the bank. It agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shal l be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of
the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors. We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal
ISSUE: Is the survivorship agreement valid? RULING: THE SURVIVORSHIP AGREEMENT IS NOT A CONVEYANCE MORTIS CAUSA WHICH SHOULD BE EMBODIED IN A WILL. A will has been defined as “a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death.” In other words, the bequest or device must pertain to the testator. Survivorship agreement does not deliver to one party’s separate properties in favor of another, but simply, that the account is jointly owned by them — it is their joint holdings. - There is no showing that the funds exclusively belonged to one party, and hence must be presumed to be conjugal
IT IS ALSO NOT A DONATION INTER VIVOS. It was to take effect after the death of the party.
IT IS NOT A DONATION BETWEEN THE SPOUSES. It involved no conveyance of a spouse’s own properties to the other. Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a moneymaking venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.
THE AGREEMENT IS AN OBLIGATION WITH A TERM. Term being death. Such agreements are permitted by the CC. It is an aleatory contract under Art. 2010 — where one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do. The fulfillment of an aleatory contract depends on either the happening of an event which is (1) uncertain or (2) which is to occur at an indeterminate time. A survivorship agreement falls under the event which is uncertain.
Note: What is the survivorship agreement all about? What is involved here is the joint savings account of the spouses — it is not not the separate of one spouse which is given to the other. So when you say will, it purports to deliver your own separate property. The survivorship agreement is therefore not a will and thus does not need to conform to the formalities of wills nor does it have to be probated. Another reason why the survivorship agreement is not a will is that both the husband and the wife signed it. There are 2 persons who participated in the execution of the document. It is a contract actually. A will is a unilateral and
(6) Capacity Before a person can execute a will he must have testamentary capacity.
2 REQUIREMENTS FOR TESTAMENTARY CAPACITY: 1) 18 years old 2) sound mind These should be present during the execution of the will. Without these requirements, the will is not valid.
(7) Freedom from Vitiated Consent The testator must voluntarily and freely execute his will. The presence of vices of consent: fraud, violence, undue influence, intimidation, will result to the disallowance of the will thus void. Unlike in contracts, the presence of any of the vices of consent only makes it voidable. In wills, it is void.
(8) Revocable The testator can revoke his will at any time for any reason of the absence of such. This is also why we call it ambulatory because the will is revocable. The testator’s right to revoke his will is almost absolute. Why almost absolute? There is just one limitation to the testator’s right: sound mind. Thus the testator cannot revoke his will when it is proven that he is not of sound mind. Revocation requires animus revocandi which cannot be attained if the testator does not have soundness of mind.
(9) Individual The will must only be the act of one person . In contracts, there are at least 2 parties or 1 if he represents different parties. That is the reason why joint wills are not allowed in the Philippines. Joint wills are jointly executed by 2 or more persons.
(10) Disposition of Property A document which contains dispositions of properties can be considered as a will. If a document does not dispose of property, it is not a will. Just like in the case of Montinola vs. Herbosa — Jose Rizal did not dispose his properties in Mi Ultimo Adios.
2 WAYS OF DISPOSING A PROPERTY: 1) direct disposition — where the testator designates certain persons to receive his properties
2) indirect disposition — a document which disinherits an heir is also considered a will. Is a document which contains only a disinheritance considered a will?
MERZA VS. PORRAS 93 Phil. 142, May 25, 1953
FACTS: What is involved in this case was the last will and testament and socalled Codicil , of the deceased, Pilar Motealegre. The testatrix was survived by the husband and collateral relatives, some of whom, along with the husband, were disinherited in the Codicil. Another contention is that the codicil is not executed on the same day as the last will and testament and thus was a mere affidavit which does not have the legal force of a will. Codicil in this case embodies the disinheritance of the husband and some children.
ISSUE #2: What is the nature of the Codicil? RULING:
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THE CODICIL PARTAKES OF THE NATURE OF A WILL. A will is defined in Art. 667 of the CC of Spain as “the act by which a person disposes of all his property or a portion of it,” and in Article 783 of the new CC as “an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.
may be overlooked or correct only in matters of form which do not affect the substance of the statement. Can the court cure alleged deficiencies by inferences, implications and internal circumstantial evidences?
CODICIL IS A LEGAL AND EFFECTIVE VEHICLE FOR EXCLUDING HEIRS FROM TESTATE OR INTESTATE SUCCESSION. Art. 849 of the CC of Spain does not
THE LAST PAR. OF THE WILL CANNOT CURE IN ANY WAY THE FATAL DEFECT OF THE ATTESTATION CLAUSE OF THE WITNESSES. It would be weird if the testator would
require that the disinheritance should be accomplished in the same instrument by which the maker provides the disposition of his or her property after his or her death. This article merely provides that "disinheritance can be affected only by a will (any will) in which the legal cause upon which it is based is expressly stated.”
make an attestation clause because it is the function of the witness. The important thing is that he attests or certifies his own signature, or to be accurate, his signature certifies irself — one cannot certify his own signature.
Note: This is a case which is reiterated in Seangio vs. CA. The SC said that the document is a will because it contains disposition of a property. This is what is called an indirect disposition of property. By designating who is excluded from his estate, the testator indirectly disposes his properties to the other legal heirs who are not mentioned. Being a will, that is valid only if it complies with the formalities of wills.
How about a document containing only an appointment of an executor or administrator? Legally, it is not a disposition of property. Even if that appointment is not in the form of a will, it is a valid one.
How about a document containing an acknowledgement of an illegitimate child? It is not a will as it does not contain any disposition of property. Thus even if it is not contained in a will, it is considered valid and can be used as a secondary evidence to prove filiation. (Art. 172)
(11) Mortis Causa The transfer of property must be effective upon the death of the decedent. If the transfer of ownership happens during the lifetime of the supposed testator, that is not a will but a deed of donation which should comply with the formalities of the latter kind for it to be valid.
So those are the essential elements of a will.
RABADILLA VS. CA June 29, 2000
While jurisprudence provides that the Court may cure alleged deficiencies, it is only true when the language is clear. Unlike the attestation clause in the present case, does not necessitate any correction. In the body of the will the testatrix stated that she signed in the presence of each and all of the three witnesses. This was considered as a corroboration, but it was unnecessary.
THE RIGHT TO DISPOSE PROPERTY BY WILL IS NOT NATURAL BUT STATUTORY, AND STATUTORY REQUIREMENTS SHOULD BE SATISFIED. The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon the compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will as presented, shows a compliance with the statute.
IN INTERPRETING THE LEGISLATURE’S THOUGHT, COURTS HAVE RIGIDLY OPPOSED ANY EXCEPTION TENDING TO WEAKEN THE BASIC PRINCIPLE THAT THE TESTATOR’S WISHES ARE OBSERVED. It is possible, in some or many cases, a decedent may have thought he had made a will, but the statute says he had not. The question is not one of his intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly expressing the intertions of the testator are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . . has taught of it best and has therefore determined, to run the risk of frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his estate. IT HAS ALWAYS BEEN THE POLICY OF THIS COURT TO SUSTAIN A WILL IF IT IS LEGALLY POSSIBLE TO DO SO, BUT WE CANNOT BREAK DOWN THE LEGISLATIVE BARRIERS PROTECTING A MAN'S PROPERTY AFTER DEATH, EVEN IF A SITUATION MAY BE PRESENTED APPARENTLY MERITORIOUS.
OTHER CASES: Will is statutory
SEANGIO VS. REYES
HERREROS VS. GIL 88 Phil. 260
GR 149753, November 27, 2006
FACTS: The will and testament of the deceased Carlos Gil was admitted to probate.
FACTS: On April 7, 1999, Petitioner Seangios filed a petition for the probate of the
Pilar Gil, appellant, contends that (1) the will was not executed in accordance with law, (2) and that the CFI erred in validating that will.
holographic will of Segundo. The will is stated as follows: Kasulatan sa pag-aalis ng mana
The parties agreed that the copy of the will is true and correct. The attestation clause in the will does not state that the alleged testator signed the will. It merely declares that it was signed by the witnesses.
ISSUE: Is the will valid? RULING: NO. The probate of the alleged will is denied. Court declared intestate the estate of the deceased Carlos Gil.
THE FAILURE TO STATE THAT THE TESTATOR SIGNED THE WILL IS A FATAL DEFECT. The precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the clause. Alleged errors
Tantunin ng sinuman Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.
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At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana. Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio (signed) Unang Saksi ikalawang saksi (signed) ikatlong saksi
Alfredo et al moved for the dismissal of the probate proceedings on the ground that the holographic will of Segundo does not contain a ny disposition of the estate of the deceased and thus does not meet the definition of a will under Art. 783 of the CC. The will only shows an act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else.
RTC: dismissed the petition for probate proceedings. ISSUE: Is the will which only contains a disinheritance of an heir, valid? RULING: Yes. Segundo’s document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless is an act of disposition in itself. I n other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo.
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. WILL IS STRICTLY A PERSONAL ACT This is one of the essential elements of a will. It is strictly a personal act. It is only the testator himself who should execute his will. It cannot be left in whole or in part to the discretion of a third person. Moreover, it cannot be accomplished through the instrumentality of an agent or attorney. The lawyer can still draft the will but the contents have to come from the testator. The mechanical act of drafting a will can be entrusted to another person or an attorney.
CASTAÑEDA VS. ALEMANY 3 Phil. 426
FACTS: Alemany filed this appeal contending that the court erred in holding that all legal formalities had been complied with in the execution of the will of Doña Juana Moreno, as the proof shows that it was not written in the presence of under the express direction of the testatrix as required by Section 618 of the Code of Civil Procedure. Castañeda maintains that the grounds upon which a will may be disallowed are limited to those in Section 634 of the Code of Civil Procedure.
ISSUE: #1: Is the will executed in accordance with law? RULING: YES. ***THE WILL WAS DULY SIGNED BY DOÑA JUANA IN THE PRESENCE OF 3 WITNESSES WHO IN TURN SIGNED IT AS WITNESSES IN THE PRESENCE OF THE TESTATRIX. There is nothing in the language of section 618 of the Code of Civil Procedure which supports the claim of the appellants that the will must be written by the testator himself or by someone else in his presence and under his express direction. Section 618 requires: (1) that the will be in writing and
(2)
either that the testator sign it himself or, if he does sign it, that it be signed by some one in his presence and by his express direction. Who does the mechanical work of writing the will is a matter of indifference. The fact, therefore, that in this case the will was typewritten in the office of the lawyer for the testratrix is of no consequence. The English text of section 618 is very plain. The mistakes in translation found in the first Spanish edition of the code have been corrected in the second.
Note: Take note that this ruling is only applicable to notarial wills. In holographic wills, the mechanical act of drafting cannot be delegated because the law requires that the holographic will should be entirely written, dated and signed in the hands of the testator.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. A will is personal.
What are the things that CANNOT be delegated by the testator? 1) the duration of the designation of heirs, devisees or legatees 2) the efficacy of the designation of heirs, devisees or legatees 3) determination of the portions which they are to take, when referred to by name
Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or clauses, and also the designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied. ALLOWABLE DELEGATION Art. 786. Testator may entrust to a third person: (a) the distribution of specific property or sums of money that he may leave in general to specified classes or clauses (b) the authority to designate persons, institutions or establishments to which such property or sums of money are to be given or applied Art. 785 (what cannot be delegated)
Art. 786 (allowable delegation)
This is not allowed
Allowed
the heirs, devisees or legatees are referred to by name in the will
there is no naming here of s pecific heirs, devisees or legatees
there is no class or clause specified
the testator specifies a class or a clause
what is prohibited is that the delegate cannot determine the portion which is left to named legatees, devisees or heirs
the delegate is allowed to determine the persons, institutions or establishments
Q: I hereby give my properties to the top 4 of 3rd year-Manresa batch 2017. Valid? A: Valid. Falls under Art. 786. There are no specified persons named but a general specified class. The person delegated therein can delegate to determine the persons, institutions or establishments to which are properties or sums are to be given or applied.
Q: I hereby give all my properties to Jennifer, Mel, Lilibeth and Rafael, the top 4 of 3rd year -Manresa and X will determine how much will be the share of each. Valid? A: Pursuant to Art. 785, this is not valid even if it mentions the class of top 4 of 3rd year Manresa because there is a specific mention of names. Top 4 here is just a description which may not be true at all. The names are more important here.
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Q: I hereby give such sums of money as X shall determine to support the top 4 of 3rd year Manresa batch 2017. Valid? A: There is an attempt to place this under Art. 786 but the law says specific property or sums of money. There must be specific sum of money. Here, there is no specific sum of money. It is not valid. It is not within the guidelines provided in Art. 786.
disposition is to be operative shall be preferred" and "(T)he words of a will are to receive an interpretation which will give to every expression some e ffect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva
such manner that another person has to determine whether or not it is to be operative.
vs. Juico for violation of these rules of interpretation as well as of Rule 123, section 59 of the old Rules of Court, the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed that "the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise."
This is another consequence of the characteristic that WILLS ARE PERSONAL TO THE TESTATOR.
The testator's wishes and intention constitute the first and principal law in the matter of testaments and when expressed clearly and precisely in his last will
Art. 787. The testator may not make a testamentary disposition in
One cannot delegate the determination of the validity of a testamentary disposition. I hereby give to X my land in Davao City, subject to the approval of A.
INTERPRETATION OF WILLS
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. There are 2 possible interpretations: (1) the will is not valid (2) the will is valid The interpretation which will make the disposition operative will be adopted pursuant to the principle that TESTACY IS FAVORED OVER INTESTACY. The will has to be liberally construed in favor of its validity.
amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted by these fundamental premises, the Court finds for the appellee.
ISSUE #2: Was there a valid partition in the will? RULING: YES. 1. The testatrix’s testamentary disposition was in the nature of a partition of her estate by will. Thus, , in the third paragraph of her will, after commanding that upon her death all her obligations as well as the expenses of her last illness and funeral and the expenses for probate of her last will and for the administration of her property in accordance with law, be paid, she expressly provided that " it is my wish and I command that my property be divided" in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the same. This was a valid partition of her estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator to partition his estate is subject only to the right of compulsory heirs to their legitime.
DIZON RIVERA VS. DIZON 33 SCRA 554
FACTS: Agripina Valdez, a widow, died in Angeles, Pampanga and was survived by 7 compulsory heirs: 6 legitimate children Estela, Tomas, Bernardita, Marina, Angeline and Josefina and a legitimate granddaughter named Lilia (who is the only heir of the late Ramon who is the son of Agripina). Marina was appointed executrix of the testatrix’s estate. The real and personal properties of the testatrix at the time of her death had a total appraised value of P1,811,695.60. In her will, the testatrix "commanded that her property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and eight grandchildren. However, some of them got more than the others. Marina got the most. Executrix Marina filed her project of partition adjudicating the est ate as follows: 1) to those who received less than P129,254.96 (which amounts to a 1/7 share) as legitime will be given cash and/or properties to complete the amount 2) such cash and/or properties will be taken from Marina and Tomas who received more than P129k each 3) adjudications made in favor of the grandchildren will be untouched The oppositors, other siblings submitted their own counter-project of partition where # of the estate will be disposed of in accordance with the testamentary disposition while the other # would be divided among them in 7 equal parts of P129,362.11 as their respective legitimes.
CFI: upheld the executrix Marina’s project of partition. If the oppositors’ proposition was upheld, the same would result in a distribution of intestacy which is counter to Art. 791 of the CC.
ISSUE #1: How should the will be interpreted? RULING: Articles 788 and 791 of the Civil Code provides that "(I)f a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the
2.
Executrix complied with Articles 906 and 907 of the CC which provides for the safeguard for the right of such compulsory heirs. The 5 oppositors were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrixappellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were favored by the testatrix and received in the partition by will more than their respective legitimes. ART 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. ART 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.
THE TESTATRIX’ TESTAMENTARY DISPOSITION WAS IN THE NATURE OF A PARTITION OF HER ESTATE BY WILL WHICH MUST BE GIVEN FULL VALIDITY AND EFFECT. Aside from Articles 906 and 907, other codal provisions support the executrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to onehalf and limit the same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him."
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***ISSUE: #3: Whether the contention of the oppositors that the testamentary dispositions in their favor are in the nature of devises of real property because of the repeated use of the phrase “I bequeath” RULING: NO. The adjudications and assignments in the testratrix’ will of specific properties to specific heirs cannot be considered all devises. It clearly appears from the whole context of the will and the disposition of the testatrix of her whole estate that her clear intention was to partition her whole estate through her will.
THE REPEATED USE OF THE WORDS "I BEQUEATH" IN HER TESTAMENTARY DISPOSITIONS ACQUIRE NO LEGAL SIGNIFICANCE, SUCH AS TO CONVERT THE SAME INTO DEVISES TO BE TAKEN SOLELY FROM THE FREE ONEHALF DISPOSABLE PORTION OF THE ESTATE. The testatrix' intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased.
THE TESTAMENTARY DISPOSITIONS OF THE TESTATRIX IN FAVOR OF COMPULSORY HEIRS DO NOT HAVE TO BE TAKEN ONLY FROM THE FREE PORTION OF THE ESTATE. Art. 842 of the CC provides that (O)ne who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' own theory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of the executrixappellee, who admittedly was favored by the testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate." Fundamentally, of course, the dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsory heirs.
OPPOSITORS CANNOT INVOKE ART. 1063. Here we have a case of a distribution and partition of the entire estate by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here determined and undisputed.
THE RIGHT OF OPPOSITORS WAS MERELY TO DEMAND COMPLETION OF THEIR LEGITIME UNDER ART. 906. This has been complied with. Thus they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee.
VDA DE VILLANUEVA VS. JUICO 4 SCRA 550
FACTS: Don Nicolas Villaflor, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Doña Fausta Nepomuceno # of all his real and personal properties and the other # to his brother Don Fausto Villaflor. Clause 6 (translated by google): By virtue of the powers conferred upon me by the laws, I institute for my sole and universal heirs all my rights and actions to my brother Fausto Villaflor and to my wife Da. Fausta Nepomuceno, in order that all my possessions belonging to me, in equal parts, may depart after my death, excepting the donations and legacies which, in my most spontaneous will, I do in the following manner: Clause 7: The goods, jewels and furniture will go to Fausta as proof of his my love and affection. Clause 8: These properties will be enjoyed by Dona Fausta, its use and possession as long as she lives and does not marry again, otherwise, the properties will become property of Leonor Villaflor (niece)
There was a clause in the will that in case Don Nicolas and Doña Fausta would die without any issue, that clauses 6 and 7 would be deemed annulled. Clause 6 provides that all the possessions of Don Nicolas will be divided between Fausto and Fausta. Clause 7 provides that Fausta will have the goods, jewels and furniture. Clause 8 provides that Doña Fausta will enjoy the use and possession of the properties as long as she is alive and does not remarry, otherwise, the properties of the late Nicolas will become the property of his niece, Leonor Villaflor. Don Nicolas Villaflor died without begetting any child with Doña Fausta. Dona Fausta instituted the settlement of her husband’s estate and was appointed as the judicial administatrix. Her project of partition was approved by the probate court wherein she received the use and possession of all the real and personal properties mentioned and referred to in clause 7 th of the will. The order approving the project of partition had the provision “without prejudice to the provisions of clause 8 of the will of Nicolas Villaflor.” Doña Fausta died without marrying again and without any children. Her estate is now being settled with Juico as the duly appointed judicial administrator.
Leonor Villaflor referred to in clause 8 of the will instituted the present action against Juico. She contends that upon the widow’s death, she became vested with the ownership of the real and personal properties bequeathed by Don Nicolas to clause 7 of his will pursuant to the 8 th clause.
Juico contends that the title to the properties became absolutely vested in the widow upon her death, on the account of the fact t hat she never remarried.
Note: What would be the relevance if they will be considered as devisees? Where would the shares of the legatees and devisees be taken? Free portion. When we say free portion is consists of 1/2 of the estate of the deceased. The other 1/2 being reserved for legitimes. Even if the phrase “I bequeath” (which usually refers to legacy) is used, it acquires no legal significance. It cannot be construed as a devise but an inheritance. It was clearly the intention of the testatrix that it should be as an inheritance and not merely as a devise or legacy whose properties can only be taken from the 1/2 free portion. Such intention was evidenced by the fourth paragraph of her will aforementioned. We also have discussed the case of Balanay Jr. vs. Martinez , where the testamentary disposition could be interpreted as void because a spouse cannot dispose of the conjugal properties. As one has to be the sole owner of the property before one can dispose of his or her property. On the other hand, it could also be given effect because the husband executed a waiver thereby waiving his share in the conjugal properties. Taking that into account, the partition made by the testatrix in the will could actually be given effect. In light of the 2 interpretations, and pursuant to Art. 788 (the rule that we should liberally construe the will in favor of its validity), we construe it in such a way that its dispositions can be effect.
ISSUE: Does Leonor Villaflor own the properties left by Don Nicolas? RULING: YES. It was Don Nicolas’s intention to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. Ownership did not vest in her even if she didn’t marry because of the use of the expressions: "uso y posesion mientras viva " (use and possession while alive) in which the first half of the phrase " uso y posesion" instead of "dominio" or " propiedad ") reinforces the second (" mientras viva"). The testator plainly did not give his
widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her lifetime . This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's brother (clause 6). Thus, the widow had no right to
retain or dispose of the properties left to her by Don Nicolas and her estate is accountable to the reversionary legatee (Leonnor) for their return. THE INTENTION AND W ISHES OF THE TESTATOR, WHEN CLEARLY EXPRESSED IN HIS WILL, CONSTITUTE THE FIXED LAW OF INTERPRETATION, AND ALL QUESTIONS RAISED AT THE TRIAL MUST BE SETTLED IN ACCORDANCE THEREWITH. The plain and literal meaning of the testator’s words must be followed, unless it clearly appears that his intention wasa otherwise. Speculation as to the motives of the testator in imposing the conditions in
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clause 7 of the will should not be allowed to obscure the clear and unambiguous meaning of his plain words, which are over the primary source in ascertaining his intent. It is well to note that if the testator had intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion mientras viva" would have been unnecessary, since the widow could only remarry during her own lifetime. The will of the testator, clearly, accurately and constantly expressed in ordering his last will, is a single, imperative and obligatory law that must be obeyed and executed by executors, legatees and heirs, today their successors, without that patent will, which has not Without any doubt, can be substituted, since it is not the least doubt, can be replaced by any other criterion of one of the interested parties, nor by the judicial one. (google translate) As already shown, the testament of Don Nicolas Villaflor clearly and
unmistakably provided that his widow should have the possession and use of the legacies while alive and did not remarry . It necessarily follows that by the express provisions of the 8th clause of his will, the legacies should pass to the testator's "sobrinanieta", appellant herein, upon the widow's death, even if the widow never remarried in her lifetime . Consequently, the widow had no right to
retain or dispose of the aforesaid properties, and her estate is accountable to the reversionary legatee for their return, unless they had been lost due to fortuitous event, or for their value should rights of innocent third parties have intervened.
DEL ROSARIO VS. DEL ROSARIO 2 Phil. 321
Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes, and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. AMBIGUITIES IN THE WILL This is another rule. This article refers to ambiguities in the will.
2 KINDS OF AMBIGUITIES IN THE WILL: 1. latent — instrinsic ambiguity That kind of ambiguity which does not appear in the face of the will. Upon reading the will, one cannot find anything wrong with it. However, when you start looking for the persons/properties mentioned, it becomes problematic. (a) imperfect description of the heir, legatee or devisee I hereby give my land in Calinan, Davao City to my beautiful friend, Jane. But Jane in real life is not beautiful. (b) imperfect description of the property I hereby give my favorite pen to John made in red Narra. But there’s no pen in red Narra. (c) when 2 or more persons meet the description I hereby give my house and lot in Jacinto St., Davao City to my bestfriend Juan Dela Cruz. But there 2 friends are named Juan Dela Cruz. 2. patent — extrinsic ambiguity An ambiguity that is apparent in the face of the will itself. Just by looking at the will, you will already know that there is something wrong with it. I hereby give my cash in Metrobank, Davao City to some of my nieces. Which nieces though? All of them? But the testator said only some.
KINDS OF EVIDENCES How can one resolve the ambiguities?
Aside from the rules which we already discussed before, we have Art. 789. Based on Art. 789, there are 2 KINDS OF EVIDENCE that may be used: (1) intrinsic evidence — evidence found within the 4 corners of the will itself (i.e. the will, provsions in the will, the attestation clause, acknowledgement portion) (2) extrinsic evidence — this is kind of evidence is not found in the will; something that exists beyond the will (i.e. letters made by the testator during his lifetime, oral evidence/testimonies)
ORAL DECLARATIONS DISQUALIFIED What is meant by “if oral evidences may be considered as an extrinsic evidence”? The testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. ! To cure the defect, or the instrinsic/extrinsic ambiguity, one can use either intrinsic evidence/extrinsic evidence ! Except oral declarations pertaining to the intention of the testator — referring to the supposed intent of the testator which was professed orally while he is alive. This is to prevent fraud, perjury and false testimony. ! A witness cannot say “Actually the Juan Dela Cruz referred to in the will is me. Why? Because he told me , that he will give me that property.” ! Not acceptable in court because the testator can no longer correct him or confirm or contest the witness’s declaration. ! Can testify about events or things that happened which cannot be corroborated. You can also relate this to Sec. 23 of Rule 130 Sec. 23. Disqualification by Reason of Death or Insanity of the Adverse Party. — Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a)
This is related to Art. 789 because it disqualifies oral evidence pertaining to transactions entered into by the testator during his lifetime. If you have a claim or demand against the testator based on oral evidence only the law will not allow that. Why? Because death has already sealed the lips of the deceased person. He can no longer contest whatever one may declare. If one has a promissory note, or a written document that can prove your claim or demand, then that is allowed.
PAROLE EVIDENCE RULE AND ART. 789 In Evidence, Rule 130, Sec. 9 or the Parole Evidence Rule Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, to explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
The term “agreement” includes wills. GR: ORAL EVIDENCE RULE: If an agreement has already been reduced into writing, the agreement should contain everything that has been agreed upon. It cannot present any more oral evidence to vary the tenor of the written agreement. If the price there stated is P250,000 the witness cannot testify otherwise or say that the price is P200,000 only. One cannot introduce oral evidence to change the tenor of the written agreement.
E: The 2nd paragraph of Rule 130, Sec.9. However, a party may present evidence to modify, to explain or add to the terms of written agreement if he puts in issue in his pleading:
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(a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
The will can actually be clarified by oral evidence by way of exception to the parole evidence rule. How can we cure using intrinsic evidence? I hereby give my parcel of land in Jacinto, St., Davao City to my friend Juan Dela Cruz. (But the testator has no friend named Juan Dela Cruz) In the will itself, there is a description of Juan Dela Cruz: his bestfriend, when they were still in lawschool, that Juan Dela Cruz would let him copy, they went on a vacation together. If that description which is found in the will itself corresponds to one of the friends, that is an example of intrinsic evidence. It turns out that the testator was referring to Joanne Dela Cruz all along. “Juan” was merely a typo in the will.
REMEDY OF REFORMATION IS NOT AVAILABLE IN WILLS (Art. 1366) In Obligations and Contracts, if the contract does not express the true intent of the parties, they can resort for the contract to undergo reformation. Can that be resorted to in wills to correct the ambiguity in the will or in cases where it does not express the true intent of the testator? No. Art. 1366 provides: Art. 1366. There shall be no reformation in the following cases: (1) Simple donations inter vivos wherein no condition is imposed; (2) Wills; (3) When the real agreement is void. Wills are not subject of an action for reformation.
ESTATE OF RIGOR V S RIGOR 89 SCRA 493
FACTS: The late Father Pascual Rigor, died on August 9, 1935 leaving a will executed on October 29, 1933 which was probated by the CFI of Tarlac. It named as devisees in the will his sisters: Florencia, belina and Nestora. He also gave a devise to his cousin, Fortunato. What was controversial about the will was the part where he left to a nearest male relative who shall take priesthood , 4 lots amounting to around 44 hectares of riceland — this was to be administered by the actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines or his successors. 13 years later after the approval of the project of the partition, the parish priest of Victoria filed a petition praying for the appointment of a new administrator, who should deliver to the church the said ricelands and that the possessors be ordered to render an accounting of the fruits. This was granted by the court. A new administrator was appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the ricelands to the church as trustee.
Legal heirs argue that the bequest is inoperative because no one among the testator’s nearest male relatives had studied for the priesthood and not because the trust was a private charitable trust. A ccording to the legal heirs, that factual finding is binding on this Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal .
THE WILL OF THE TESTATOR IS THE CARDINAL RULE IN THE CONSTRUCTION OF WILLS. It is the life and soul of a will it is “the first greatest rule, the sovereign guide, the polestar, in giving effect to a will.” One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be ascertained from the words of the will taking into consideration the circumstances under which it was made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the Philippines).
TESTATOR INTENDED TO DEVISE THE RICELANDS TO HIS NEAREST MALE RELATIVE WHO WOULD BECOME A PRIEST, who was of the ricelands would accumulate annually the products thereof, obtaining or getting from the annual produce five percent thereof for his administration and the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for each year, depositing the balance of the income of the devise in the bank in the name of his bequest. THE PARISH PRIEST OF VICTORIA WOULD ADMINISTER THE RICE LANDS IN 2 SITUATIONS: (1) while there is no nearest male relative of the testator was studying for priesthood and (2) in case the testator’s nephew became a priest and was excommunicated. How long after the testator’s death would it be determined that he had a nephew who would pursue an ecclesiastical vocation?
THE BEQUEST REFERS TO THE TESTATOR’S NEAREST MALE RELATIVE AT THE TIME OF HIS DEATH AND NOT TO ANY INDEFINITE TIME THEREAFTER. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" (Art. 1025, Civil Code). Testamentary provisions should be reasonably construed. If the determination was made anytime after Fr. Rigor’s death, it woudl render the provisions of the will difficult to apply and create uncertainty as to the disposition of his estate. If he intended to include indefinitely anyone of his nearest male relatives born after his death, he could have so specified in his will. Was it intended for Ramon Quiambao? He is the testator’s nephew and godchild, son of Fr. Rigor’s sister. Contended by Beatriz Gamalinda that he was the intended devisee. As his own son although studying in San Carlos Seminary, did not claim the devise because they kenw that the devise was intended for Ramon. — SC said that this was hearsay.
AS THE TESTATOR WAS NOT SURVIVED BY AY NEPHEW WHO BECAME A PRIEST, THE UNAVOIDABLE CONCLUSION IS THAT THE BEQUEST IS INEFFECTUAL AND INOPERATIVE. The administration of the ricelands by the parish priest of Victoria was likewise inoperative.
grandnephew named Edgardo Cunanan (grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in QC. The administrator was directed to deliver the ricelands to t he parish priest of Victoria as trustee.
But it is a public charitable trust… NO. A reading of the testamentary provisions regarding the disputed bequest not support the view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a priest. It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies did not arise, and could not have arisen in this case because no nephew of the testator manifested any intention to enter the seminary or ever became a priest.
CA: Reversed. It held that Father Rigor had created a testamentary trust for his
ART. 888 OF THE CC APPLIES. It provides that if “"the bequest for any reason should
The intestate heirs of Fr. Rigor countered with a petition praying that the bequest be made inoperative and that they be adjudged as the persons entitled to the said ricelands since no nearest male relative of Fr. Rigor has ever studied for the priesthood.
RTC: this was granted. This was later reversed in view that the testator had a
nearest male relative who would take the holy orders but that such trust could exist only for twenty years because to enforce it beyond that period would violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.
be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists”
ART. 960(2) ALSO APPLIES. It provides that legal succession takes place when the
ISSUE: Is the bequest inoperative? RULING:
will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.
Parish Priest contends that CA erred in not finding that the testator created a public charitable trust and in not liberally construing the testamentary provisions so as to render the trust operative and to prevent intestacy.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the
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testator's win is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
RABADILLA VS. CA
is only property to reconvey the title of lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. Maria Marlina must institute separate proceedings to reopen Aleja Belleza’s estate, secure the appointment of an administrator and distribute the subject lot to Aleja Belleza’s legal heirs.
June 29, 2000
ISSUE: as to Art. 776: Are the obligations of the person who has inherited property
FACTS: In the Codicil appended to the Last Will and Testament of testatrix Aleja
HELD: It is a general rule under the law on succession that successional rights are
Belleza, Dr. Rabadilla who is the predecessor in interest of Petitioner Johnny Rabadilla was made a devisee of a parcel of Lot 1392 of the Bacolod Cadastre (511,855 sqm.) The Codicil, was duly probated and admitted before the CFI. It provided that if Lot 1392 was encumbered, the buyer, lessee or mortgagee shall have also the obligation to respect and delivery yearly 100 piculs of sugar to Maria Marlina Coscolluela y Belleza on each month of December, 75 piculs of Export and 25 piculs of Domestic until Maria Marlina shall die. Otherwise, Maria Malina shall immediately seize this lor from the heir and latter’s heirs and turn the same over to Aleja’s near descendants. descendants. If the heirs and their heirs of Lot 1392 decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and Aleja’s sister.
transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.
Lot No. 1392 was transferred to Dr. Jorge Rabadilla and TCT was issued in his name. He was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida when Dr. Jorge died in 1983. In 1989, Maria Marlina brought a complaint against the heirs of Dr. Jorge Rabadilla to enforce the provisions of the Codicil. She claims that the heirs violated the conditions of the Codicil in that: 1. Lot 1392 1392 was was mortga mortgaged ged to to PNB PNB and Republ Republic ic Plan Planter terss Bank Bank in disregard of the testatrix’s specific instruction to sell, lease or mortgage only to the near descendants and sister of the testratrix 2. Heirs Heirs did did not deliv delivery ery 100 100 piculs piculs of sugar sugar (75 (75 export export and and 25 domest domestic ic sugar) to Maria Marlina from 1985 to the filing of the complaint despite repeated demands 3. The The ban banks ks fail failed ed to comp comply ly with with the the 6th par of the Codicil which provided that in case of the sale, lease or mortgage of the property, the buyer, lessee or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to Maria Marlina. She prays that the judgement be rendered ordering the heirs of Dr. Jorge Rabadilla to return the lot to the surviving heirs of the late Aleja Belleza, the cancellation of the TCT in the name of Jorge Rabadilla and the issuance of the new TCTs TCTs in the names of the surviving heirs of the late Aleja Belleza. Feb 1990, defendant heirs were declared in default but on March 28, 1990 the Order of Default was lifted wit h respect to Johnny Rabadilla. The parties in the pre-trial admitted that Maria Marlina and Alan Azurin (who is the son in law of Johnny Rabadilla and current lessee of the property and acting attorney in fact of the heirs) arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to delivery 100 piculs of sugar. 1. That for crop year 1988-1989, the annuity will be delivered not later than January 1989. 2. That the annuity for crop year 1985-86, 1986-87, and 1987-88 will be complied in cash equivalent of 100 piculs of sugar and taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of P105,000. 3. The P105, P105,000 000 will will be paid paid or delive delivered red on on a staggere staggeredd cash insta installm llment ent payable on or before the end of December of every sugar crop year = P26,250 payable on or before December of every crop year
RTC: Complaint dismissed. The action is prematurely filed. While the nonperformance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. Maria Marlina being the creditor of the left estate, she may initiate the intestate proceedings, to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.
CA: reversed RTC. The evidence establishes the right of Maria Marlina to the delivery 100 piculs of sugar out of the produce of Lot 1392. The failure to do so since 1985, it
extinguished when he dies?
UNDER ART. ART. 776 OF THE NC C, INHERITANCE INCLUDES ALL THE PROPERTY, PROPERTY, RIGHTS AND OBLIGATIONS OF A PERSON, NOT EXTINGUISHED BY HIS DEATH. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing t he complaint below.
Issue #2: Whether Art. 882 on modal institutions is applicable/ whether the testatrix intended a substitution (Rabadilla is to be substituted by testatrix’s near descendants should there be noncompliance)
Ruling: THERE IS NO SUBSTITUTION. The codicil contemplates neither of the two kinds of substitution. Substitution is the designation by the testator of a person/s to take the place of the heir or heirs of first instituted. In general, the testator may either: (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution , or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another, as in a fideicommissary substitution.
DR. RABADILLA UNDER THE CODICIL IS IN THE NATURE OF A MODAL INSTITUTION THUS ART. ART. 882 OF THE NCC APPLIES. Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or
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application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is similar to a resolutory condition.
THE TESTATRIX INTENDED THE SUBJECT PROPERTY TO BE INHERITED BY DR. JORGE RABADILLA. The inheritance and the effectivity of his institution as a devisee is not dependent on the performance of the obligation to delivery 100 piculs of sugar. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Testamentary dispositions are acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention. In case of doubt the institution should be
considered as modal and not conditional. THE NON-PERFORMANCE OF THE SAID OBLIGATION IS WITH THE SANCTION OF SEIZURE OF THE PROPERTY AND REVERSION THEREOF TO THE TESTATRIX’S NEAR DESCENDANTS. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. A Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.
Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. There are 2 kinds of terms that may be used in a will: (1) ordinary terms — those which are understood in their layman’s terms (2) technical terms — terms or words that have their own meaning as defined in the rules or laws of a certain subject, discipline, science and the like. (i.e. adoption)
What is the rule? Ordinary terms are to be given there ordinary meaning, technical terms are also to be understood in their technical sense. Except when there is a clear intention to give these words another meaning. For instance, adoption has a technical meaning but the testator intended to not use the word in its legal sense. I hereby give all my properties to my adopted child, A. However it turns out that A is not legally adopted. Will A get the properties? Since there is a clear intention and considering that the testator in this case only finished grade 1, he couldn’t have intended to use “adopted” in the legal sense. Thus, the disposition can still be given effect. Another meaning was thus adopted by the testator: that he took in A in his own home to care for, etc. I hereby give A my table. But the testator really meant, the bed. The testator can give it another meaning based on the intention of the testator.
But if the intention cannot be ascertained, the affected disposition shall be null and void.
Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. 1st part of Art. 791: the will must be interpreted as a whole 2nd part of Art. 791: testacy is favored over intestacy If there are words used in a will.. in order to determine their meaning, do not isolate the interpretation. That ambiguous provision has to be interpreted in relation to the other provisions in the will. The will has to be interpreted as a whole. One has to relate every provision to determine the intention of the testator.
YAMBAO VS. GONZALES 1 SCRA 115
FACTS: On August 10, 1942, Maria Gonzales executed a will bequeathing to Gonzaleses all of her properties in Sta. Rosa, Laguna. The will was probated in 1948. Yambao filed an action against Gonzales and Pablo praying that
1. he be appointed and empoyed as tenant during his tenant during his lifetime on the parcels of land bequeathed to and inherited by them to Gonzales
2. to deliver to him the value of the harvests belonging to him as tenant of said parcels of land Provisions of the will invoked by Yambao is as follows: Dapat in naman malaman ng dalawa kong tagapagmana na sila Maria Pablo at Angelina Gonzales na sila ay may dapat TUNGKULIN OR GANGPANAN GAYA GAYA ng mga sumusunod: xxxx (2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng bukid habang panahon, at and nasabing bukid ay isasailalim ng pamamahala ng Albasea samantalang ang bukid ay nasa usapin at may utang pa. Gonzales aver that the provisions of the will relied upon by Yambao is not mandatory. The determination of who should be the tenant of the land is vested in a special court; and the present action is not the proper remedy.
ISSUE: Is the provision of the will not mandatory? RULING: ***THE WILL CONTAINS A CLEAR DIRECTIVE TO EMPLOY YAMBAO. This is from the words before the word “pahihintulutan,” which say: “Dapat din naman malaman ng dalawa kong tagapagmana na sila Maria Pablo at Angelina Gonzales na sila ay may dapat tungkulin o gangpanan gaya ng mga sumusunod.” The words “dapat tungkulin o gangpanan” mean to do or to carry out as mandate or directive, and having reference to the word “pahihintulutan,” can convey no other meaning than to impose a duty upon Gonzaleses. To follow the interpretation given by the trial court would be
to devoid the wish of the testatrix of its real and true meaning. Note: The word “pahihintulutan” usually connnotes that it is not mandatory. However, since it was precedent by the phrase “dapat tungkulin o gangpanan” it should be construed as being mandatory. The will must be construed as a whole and not separately and defeat the intent of the testator.
DIZON RIVERA VS. DIZON 33 SCRA 554 The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her assignment or distribution of her real properties to the respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, the remainder of the estate after deducting the legitime of the compulsory heirs ... and all testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constituting the free portion.
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ISSUE:: Whether the contention of the oppositors that the testam entary dispositions in their favor are in the nature of devises of real property because of the repeated use of the phrase “I bequeath” RULING: NO. The adjudications and assignments in the testratrix’ will of specific properties to specific heirs cannot be considered all devises. It clearly appears from the whole context of the will and the disposition of the testatrix of her whole estate that her clear intention was to partition her whole estate through her will. The repeated use of the words "I bequeath" in her testamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the free one-half disposable portion of the estate. The testatrix' intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased.
THE RIGHT OF OPPOSITORS WAS MERELY TO DEMAND COMPLETION OF THEIR LEGITIME UNDER ART. 906. This has been complied with. Thus they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee. Anent the contention that the value of the peso has devalued since the testatrix’ death in January 1961…
THE VALUE OF THE PESO OR PROPERTY MUST BE RECKONED AS OF THE MOMENT OF THE DEATH OF THE TESTATRIX AS THE TRANSMISSION OF RIGHTS TO THE SUCCESSION ARE TRANSMITTED TO THE MOMENT OF DEATH. This is pursuant to Art. 777 of the CC. Otherwise, estates would never be settled if there were to be a reevaluation with every subsequent fluctuation in the values of the currency and properties of the estate.
ROMARICO VITUG VS. CA GR 82027, March 29, 1990
p. 18.
Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made.
existing at the time of death but also those which accrue thereto since the opening of succession.
Art. 793, speaks of properties which are acquired after the execution of the will up to the moment of the dea th of the testator. This provision even if it is silent, it actually only applies to legacies and
devices. ACCRETION AND ART. 793 The law says that the legacy and devise, is limited only to that property which exists as of the time of the execution of the will. Any other property acquired which might be added to or incorporated to the property devised or bequeathed will not be included in the legacy or devise. In a will made in 2000, testator gave his land in Digos City which comprises of 10 hectares. (devise) After the will was made, by the action of the river, the land increased in size of about 1 hectare. When the testator died in 2010, that land in Digos had already 11 hectares. How much can the devisee claim as his devise? 10 or 11 hectares? Applying the general rule under Art. 793, the devise is limited only to the property existing as of the time of the execution of the will. Properties acquired after or added to the property are not included. But, in Property, isn't the owner of t he property also the owner of the accession? Why is that the devisee is not the owner of the accretion? Actually, that principle still applies. The testator is still the owner of the principal and he is also the owner of the accretion. However, that accretion will not be owned by the devisee because the
devise is limited to that property existing as of the time of the execution of the will. Remember when the accretion occurred or accrued, the devisee was not yet the owner of the land, it was the testator. Being the owner of the principal, the testator owned the acretion. Upon the testator’s death, the accretion will go to his legal heirs if he had not disposed it to some other persons if he has not also expressly mentioned in the will that he is also giving that accretion to the devisee, the general rule applies. How do we distinguish this from Art. 781?
Art. 781
Art. 793
the devisee became the owner of the land from the time of death and the accretion happened after the time of death
the testator was still alive when the accretion happened
Rule on Accession applies to the devisee
Rule on Accession applies to the testator.
the accre accretio tionn is owned owned by the devise deviseee
the accret accretion ion is owned owned by the testato testatorr unless he specificallly mentions that the accretions and whatever is added to the property shall also be given to the devisee
If there are valid provisions and if there are invalid provisions, they can be separated. Just disregard the invalid ones to give effect to the valid ones. Unless it is clear that the testator intended them to be related that he would not have made the valid dispositions without the invalid dispositions.
BALANAY JR VS. MARTINEZ GR L-39247, June 27, 1975 The SC in this case said that assuming for the sake of argument that the provision relating to the disposition of the conjugal lot is void, it cannot affect the entirety of the will. If there are valid provisions which can be separated from the invalid provisions, then the valid provisions must be given effect. As much as possible, we have to give effect to the wishes of the testator.
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.
RULE ON AFTER-ACQUIRED PROPERTIES WILL NOT APPLY TO AN HEIR. Why does Art. 793 only apply to legacies and devices? Because if you are an heir, you succeed to the universality of the properties, rights and obligations. Your entitlement is as to the residual share . I hereby institute A to 1/4 of my estate. In year 2000, the value of the estate was P10M and then when he died, it became P40M. How much can A claim as part of his inheritance? 1/4 of P10M or 1/4 of P40M?
1/4 of P40M. An heir is not limited to a specific property but to the net estate or the net proprties and rights after the obligations. Necessarily, that would be determined after the liquidation of the estate at the time of death. Because we cannot liquidate during the lifetime of the testator. The rule of after-acquired after-acquired properties will not apply to an heir.
RULE ON AFTER-ACQUIRED PROPERTIES
That is another reason why it is important to distinguish and heir and a legatee or devisee. As what was illustrated in the case of Dizon.
This is another concept of after-acquired properties. We discussed the first concept in Art. 781. Remember Art. 781, the inheritance includes not only the properties
EXCEPTIONS TO ART. 793.
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1) when it expressly appears by the will that such was the intention (if (if the testator wanted to give the after acquired properties as well to the devisee 2) Art. 836, 836, 930 and 935 — when when it is republish republished ed in a codicil codicil
EXTRINSIC VALIDITY IN THE VIEWPOINT OF TIME Art. 795 refers to extrinsic validity in the viewpoint of time . Whether the will is valid extrinsically, depends if it complied with the forms prescribed by the laws in force at the time of execution of the will.
ENRIQUEZ VS. ABADIA
Art. 794. Every devisee or legacy shall convey all the interest which
95 Phil. 627
the testator could devise or bequeath in the property dispose of, unless it clearly appears from the will that he intended to convey a less interest.
FACTS: Fr. Abadia, parish priest of Talisay, Cebu, executed a holographic will in 1923 .
ART. ART. 794 ALSO APPLIES TO AN INHERITANCE Art. 794 mentions only devise or legacy. However by analogy, we can also apply this
He died on January 14, 1943, in the municipality of Aloguinsan, Cebu. On October 2, 1946, Andres Enriquez, one of the legatees filed a Petition for its probate. This was opposed by some of the cousins and nephew who would inherit the estate of the deceased if he left no will.
to an inheritance.
CFI: Will is a holographic will. The court admitted to probate the will of Fr Sancho
GR: WHAT THE DEVISEE OR LEGATEE GETS IS THE INTEREST WHICH THE TESTATOR TESTATOR HAS
although at the time of its execution and at the time of testator’s death, holographic wills were still not permitted by law, in light of the new Civil Code (which permitted holographic wills) that was effective at the time of the hearing. It applied a liberal interpretation of the law. [August 1952]
Art. 794 simply says that whatever interest the testator has over the property which is deviced or bequeathed or given as an inheritance, that will also be the interest that will be inherited or covered by the devise or legacy.
EXCEPTION: WHEN THE TESTOR INTENDED TO GIVE A LESS INTEREST Unless, the testator intended to convey a less interest. I hereby give to A my land in Cainan, Davao City. If he is the owner of the entire land, then the device is of the entire land. If he is just a usufruct or a lessee, then he cannot give the ownership of the land. But if he is a lessee, he can give his rights to the lease. Only to the extent of the interest of the testator over the property covered. He cannot give as a general rule more than what he possess in that property. Unles it clearly appears in that will that he intended to convey a less interest. For instance, A is the owner of the land but he merely gives the legatee or devisee a mere usufruct. Thereby giving a less interest.
The oppositors appealed.
ISSUE: Is the will valid? RULING: The will is denied probate. THE WILL IS VOID. 1. At the time time of the execution execution of the the will in 1923 1923 and at the time time of death of Fr. Fr. Sancho Abadia in 1943, holographic wills were not permitted. 2. Art. 795 of the the CC provides provides:: “The validit validityy of a will as to to its form form depends depends upon the observance of the law in force at the time it is made.” Thus a validity of a
AND WHEN TESTATOR INTENDS TO GIVE A GREATER INTEREST If the testator intended to give a greater interest, would it be possible? In the Calinan example, if he is the owner of the 1/2 of the land. If the testator gave the land to B and he is just 1/2 owner of the land, the device would only be limited to his share of 1/2. He could even give a lesser interest if that is his intention, or he could even give a greater interest.
3.
Are we saying that if the testator only owns 1/2 of the property in Calinan, he can actually give the entire land to the devisee? Is that possible? General Rule: No. But there is an exception under Art. 931 and 930 — if the testator knew that he only owned 1/2 portion but still in his will gave the entire property then that is valid. So how can the property be given? In that scenario there is an implied instruction to the
executor or administrator or to the estate that the remaining half shall be acquired from the owners so that it can be given as well to the devisee. What if the owners of the remaining half of the property refuse to sell to the estate or they agreed to sell but demanded an excessive price? What is the rule? When we go to device or legacy, the obligation now of the estate or executor/ adminsitrator is to give to the legatee or devisee the just value of the other half. That is in compliance of the will of the testator which gives the entire property to the devisee/legatee.
Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. SOLEMNITIES OF WILLS — EXTRINSIC VALIDITY This is an important provision. It refers to the extrinsic validity of the will. When you say extrinsic or formal validity: we are referring to the forms or solemnities which must be observed in the execution of wills.
How do we know what form to observe? Must follow the law at the time the will was made.
THERE ARE 2 VIEWPOINTS AS TO THE EXTRINSIC VALIDITY: (1) viewpoint of time — time it was made (2) viewpoint of place or country — Art. 16
4.
will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed. Although there is a view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that new statutes passed after the execution of the will and after the death of the testator should be applied to validate wills defectively executed according to thelaw in force at the time of the exection. We should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it become a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. The general rule is that the Legislature can not validate void wills . When one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession.
Note: When did the NCC take efect? August 30, 1950 The testator executed his will in 1923. It was admitted to probate in 1952. That time the NCC had taken effect. Is that will valid? No, Art. 795 provides that the validity of a will as to its form depends upon the observance of the law in force at the time it is
made. Obviously, when the will was made, the law did not recognize holographic wills. That will was void as of the date when it was made and it remains void althroughout notwithstanding the amendment of the law. So if the will is void at the time of its
execution, it remains void even if at the time of death of the testator, it was made valid or even when the probate was filed in court, such will is recognized by law.
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ABADA VS. ABAJA GR 147145, January 31, 2005
FACTS: Abada died in May 1940. His widow Paula Toray died sometime in Sept 1943. They don't have legitimate children. Sept 13, 1968 — Alipio Abaja filed with the CFI of Negros Occidental a peition for the probate of the last will and testament of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja and Rosario Cordova. Alipio is the son of Eulogio.
WE RULE TO APPLY THE LIBERAL CONSTRUCTION IN THE PROBATE OF ABADAS WILL. Abadas will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus: [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law . This
Opposition: - It was void for not having been acknowledged before the notary public Sept 13, 1968 — Alipio filed another petition before the RTC- Kabankalan for the probate of the last will and testament of Toray. - this was opposed by Caponong, Joel Abada et al and Levi Tronco, et al on the same grounds in the other case Sept 20, 1968 — Caponong filed a petition before the RTC-Kabankalan for the issuance in his name of administration of the intestate estate of Abada and Toray.
RTC-Kabankalan: admitted to probate the will of Toray. This order became final and executory. Belinda Caponong-Noble was designated as the Special Administratrix. Caponong-Noble’s motion for the dismissal of the probate was denied.
RTC: Ruled only on the issue by the oppositors in their motions to dismiss the petition for probate, whether the will of Abada has an attestation clause as required by law. There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
CA: affirmed the Resolution of the RTC-Kabankalan. ISSUE: Should the will of Abada be admitted to probate? RULING: YES. As to the applicable law:
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results. The phrase en presencia de nosotros or in our presence coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses. ***Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the tes tator and of each other. This Court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it. The last part of the attestation clause states en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador . In English, this means in its witness, every one of us also signed in our presence and of the testator. This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed t he will in the presence of one another and of the te stator.
Note: The testator made a notarial will in 1932. What was the opposition all about? It was not acknowledged before the notary public thus will is void. When did the testator die? 1940. What is the issue in this case? Whether the will is valid despite not being acknowledged by a notary public.
OLD CIVIL CODE SHOULD APPLY. Abada executed his will on June 4, 1932. SC: Will is valid.
SEC. 618 OF THE CODE OF CIVIL PRO, AS AMENDED BY ACT NO. 2645 WHICH GOVERNS THE FORM OF THE ATTESTATION CLAUSE OF AB ADA’S WILL PROVIDES: Section 618. Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.
REQUISITES OF A WILL UNDER THE CODE OF CIVIL PROCEDURE: 1. The will must be written in the language or dialect known by the testator; 2. The will must be signed by the testator, or by the testators name written by some other person in his presence, and by his express direction;
3. The will must be attested and subscribed by 3 or more credible witnesses in the
So if the will is valid, it remains to be so even if there are subsequent amendments to the law.
IN RE WILL OF RIOSA 39 Phil. 23
FACTS: Riosa made a will in January 1908 wherein he disposed of an estate valued more than P35,000. His will was executed in confomity to Sec. 618 of the Code of Civil Procedure. However when Riosa died on April 17, 1917, another law, Act. 2645 was effective with respect to wills to which his will did not conform to. In other words, the will was in writing, signed by the testator, and attested and subscribed by three credible witnesses in the presence of the testator and of each other; but was not signed by the testator and the witnesses on the left margin of each and every page, nor did the attestation state these facts. The new law, therefore, went into effect after the making of the will and before the death of the testator, without the testator having left a will that conforms to the new requirements.
ISSUE: Which law applies: the one in effect when the will was made or that which was in force at the time of death?
presence of the testator and of each other
4. The testator or the
RULING:
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3 views of the effect of a change in the statutes prescribing the formalities necessary to be observed in the execution of a will, when such change is made between the execution of a will and the death of the testator.
On January 17, 1948, Catalina, as guardian of her children, sold 1/2 of the land to Esperanza Po which portion belongs to the children of the Winstanley Spouses.
1. THE STATUTES IN FORCE AT THE TESTATOR’S DEATH ARE CONTROLLING, AND THAT A WILL NOT EXECUTED IN CONFORMITY WITH SUCH STATUTES IS INVALID, ALTHOUGH ITS EXECUTION WAS SUFFICIENT AT THE TIME IS WAS MADE. This is
Ibarie filed an action to annul a deed of sale in favor of Po, for P1,700, one undivided half of a parcel of land which was previously sold along with the other half to Ibarie.
because until the death of the testator the paper executed by him, expressing his wishes, is not a will, but a mere inchoate act which may or may not be a will, the law in force at the testator's death applies and controls the proof of the will. ! SC: The act of bequeathing or devising is something more than inchoate or ambulatory. In reality, it becomes a completed act when the will is executed and attested according to the law, although it does not take effect on the property until a future time.
Trial court upheld the sale to Esperanza Po.
2. THE VALIDITY OF THE EXECUTION OF A WILL MUST BE TESTED BY THE STATUTES
IN FORCE AT THE TIME OF ITS EXECUTION AND THAT STATUTES SUBSEQUENTLY ENACTED HAVE NO RETROSPECTIVE EF FECT. J. SHARSWOOD: RETROSPECTIVE LAWS GENERALLY IF NOT UNIVERSALLY WORK INJUSTICE, AND OUGHT TO BE SO CONSTRUED ONLY WHEN THE MANDATE OF THE LEGISLATURE IS IMPERATIVE. When a testator makes a will, formally executed according to the requirements of the law exsting at the time of its execution, it would unjustly disappoint his lawful right of disposition to apply to it a rule subsequently enacted, though before his death. While it is true that every one is presumed to know the law, the maxim in fact is inapplicable to such a case; for he would have an equal right to presume that no new law would affect his past act, and rest satisfied in security on that presumption. . . . It is true, that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the property of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes place when the will is executed, though to go into effect at a future time.
ISSUE: Is the sale valid? RULING: WAS THE SALE OF THE ENTIRE PROPERTY TO IBARIE VALID?
NO. 1/2 OF THE LAND BELONGED TO CATALINA’S CHILDREN. Art. 657 of the old CC provides: “The rights to the succession of a person are transmitted from the moment of his death.” This is incorporated in the NCC as article 777. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. (Manresa) No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share.
SALE MADE BY CATALINA IN FAVOR OF PO IS VALID. Considering that it was made by authority of the competent court (in the special proceedings of guardianship) The fact it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not be in favor of Ibarie because it was due to no other cause than his own opposition. Ibarie however and/or Canoy spouses can bring an action against Catalina for damages they may have incurred by reason of the voiding of the sale in their favor.
3. STATUTES RELATING TO THE EXECUTION OF WILLS, WHEN THEY INCREASE THE
NECESSARY FORMALITIES, SHOULD BE CONSTRUED SO AS TO NOT IMPAIR THE VALIDITY OF A WILL ALREADY MADE, AND WHEN THEY LESSEN THE FORMALITIES REQUIRED, SHOULD BE CONSTRUED SO AS TO AID WILLS DEFECTIVELY EXECUTED ACCORDING TO THE LAW IN FORCE AT THE TIME OF THEIR MAKING.
EXTRINSIC VALIDITY OF THE WILL FROM THE VIEWPOINT OF THE PLACE OR COUNTRY FROM THE VIEWPOINT OF COUNTRY, WHICH LAW SHOULD GOVERN THE FORMALITIES OF HIS WILL? Memorize Art. 17.
It is, of course, a general rule of statutory construction, as this court has said, that "all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the restrospective effect." Statute law, as found in the Civil Code, is corroborative; article 3 thereof provides that "laws shall not have a retroactive effect, unless therein otherwise prescribed." The language of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendency of the Supreme Court of the Philippine Islands on cases having special application to testamentary succession.
Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The strongest argument against our accepting the first two rules comes out of section 634 of the Code of Civil Procedure which, in negative terms, provides that a will shall be disallowed in either of five cases, the first being "if not executed and attested as in this Act provided." Act No. 2645 has, of course, become part and parcel of the Code of Civil Procedure. The will in question is admittedly not executed and attested as provided by the Code of Civil Procedure as amended. Nevertheless, it is proper to observe that the general principle in the law of wills inserts itself even within the provisions of said section 634. Our statute announces a positive rule for the transference of property which must be complied with as completed act at the time of the execution, so far as the act of the testator is concerned, as to all testaments made subsequent to the enactment of Act No. 2645, but is not effective as to testaments made antecedent to that date.
SECOND RULE WAS ADOPTED. The will of Riosa is valid.
IBARIE VS. PO February 27, 1953
FACTS: Spouses Leonard Winstanley and Catalina owned the subject parcel of land. When Leonard died, the entire land was sold by Catalina to Spouses Maria Canoy who, in turn sold it to Bienvenido Ibarie.
Based on the Art. 17, the forms and solemnities of contracts, wills, shall be governed by the laws of the country in which they are executed. Lex Loci Celebrationis --law of the place of celebration. Also consider that the Filipino is principally governed by the laws of the Philippines but he is allowed to follow the law of the place where he may be. Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by law of the country in which he may be. Such may be probated in the Philippines.* What about the foreigner? He has 4 choices Art. 816. The will of a alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. If an American Citizen executed his will in Japan and died in Germany. He may follow any of the aforementioned laws there. Such foreigner has 4 choices. What if the foreigner made his will in the Philippines? Art. 817 provides: Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by
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the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. If a Chinese citizen executes his will in the Philippines, he can observe his Chinese law insofar as the extrinsic validity of the will is concerned or again, going back to Art. 17, the law of the place of celebration -- Philippine law.
Citizenship of testator
Place where testator executed his will
Law which governs the formal validity of the will
Filipino
Philippines
Philippine law
Filipino
before the diplomatic or consular officials of the RP in a foreign country
Philippine law
Filipino
abroad
1) Philippine law -- principally 2) law of the place of execution (Art. 815)
Alien
abroad
1) law of the place of his residence/domicile 2) law of his country 3) law of the place of execution (Art. 17 which applies to all) 4) Philippine law (Art. 816)
the office of the diplomatic or consular officials is the extension of the Philippine territory
For example, under the Old Civil Code, illegitimate children were not recognized to have successional rights, but under the NCC, illegitimate have legitmes. In the NCC, if the illegitimate child is omitted in the will, there is preterition — in that case when a compulsory heir, in effect, the will becomes void. Testator made a will in 1940. In his will, he did not give anything to his illegitimate child. Is the will intrinsically valid? It depends on when he will die. Because the intrinsic validity depends upon the laws in force at the time of death. If he died before the effectivity of the NCC, then the will would be instrinsically valid. If he died during the effectivity of the NCC, then the will would be void.
Why the laws at the time of death? Because these are matters usually relates to the
Alien
Philippines
1) law of the country of which he is a citizen (Art. 817) 2) law of the place where the will was executed (Art. 17)
Another aspect of the validity of a will is the INTRINSIC VALIDITY.
When you say instrinsic validity, how do you distinguish it from extrinsic? When you
transmission of properties, rights and obligations. Whether an heir is disqualified to receive, or omitted to his legitime, or disinheritance, etc. And pursuant to Art. 776, and 777, death opens succession. So it is during death that there is transfer of properties, rights and obligations. We measure the intrinsic validity from the time of death.
INTRINSIC VALIDITY FROM THE VIEWPOINT OF PLACE OR COUNTRY
Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.
say intrinsic , you refer to the substance of the will — the legality of the provisions of the will. (i.e. If this heir is qualified to receive from the testator, is the partition valid, is there valid disinheritance, is this person even related to the testator)
GR: LEX SITUS. Real property as well as personal property is subject to the law of the
INTRINSIC VALIDITY — can be viewed from 2 points: (1) viewpoint of time - upon the law in force at the time of death of the
E: When it comes to intestate and testate succcession, the same is regulated by the
decedent
(2) viewpoint of place or country INTRINSIC VALIIDITY FROM THE VIEWPOINT OF TIME Whether or not the will is intrinsically valid, depends upon the law in force at t he time of death of the decedent.
Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. That is the transitory provision of the NCC. According to this provision, whether it is testate or intestate: 1) if the person died before the effectivity of the NCC — it shall be governed by the Civil Code of 1889 and other previous laws. 2) if the person died or will die with or without a will after the effectivity of the NCC — it shall be governed by the NCC. The provision refers to the losses and rights of inheritance, legitimes, betterments, legacies, etc. We are referring to the instrinsic validity of the will. The intrinsic
validity of the will shall be governed by the law in force at the time of death of the decedent.
country where they are situated.
national law of the decedent, both with respect to: (1) the order of succession (2) the amount of successional rights (3) intrinsic validity of testamentary provisions — regardless of the nature of the property and of the country wherein said property may be found. With respect to the intrinsic validity of wills, it depends upon the national law of the deceased. For instance, in the Philippines, we have the will of a Texas national. In his will, he did not provide for anything to his legitimate children. Is that will valid? Let’s discuss Bellis vs. Bellis
BELLIS VS. BELLIS June 8, 1967
Facts: Amos Bellis is a citizen of the State of Texas and of the US. He had 5 legitimate children with his first wife whom he divorced. He had 3 legitimate children with his 2nd wife. He also has 3 illegitimate children. Amos Bellis executed a will in t he Philippines in which he directed that after all taxes, obligations and expenses of adminitration are paid for, his distributable estate should be divided in trust in the following order: (1) $240,000 to his first wife (2) $120,000 to his 3 illegitimate chldren or P40,000 each (3) the remainder shall go to his 7 surviving children by his first and second wives.
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Amos Bellis died on July 8, 1958 in San Antonio, Texas. His will was admitted to probate in the CFI of Manila on Sept. 15, 1958, Maria Christina Bells (illegitimate) and Miriam Palma Bells (illegitimate) filed their respective oppositions to the project of paritition which followed the orders of the deceased. The oppositions were overruled. CFI approved the project of partition relying upon Art. 16 of the CC, it applied the national law of the decedent which is Texas law, which did not provide for legitimes. The Appellants Maria and Miriam argue that their case falls under the circumstances mentioned in the 3rd par o Art. 17 in relation to Art. 16 of the CC.
ISSUE: Which applies: the national law of the decedent or the law of where he is domiciled? RULING: Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that — ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. But appellants counter with the 3rd par. of art. 17 which states: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. They argue that as the e xception to Art. 16, par.2 of the CC as aforequoted.
Note: Testator here was a national of Texas and because his country does not provide for the system of legitimes so it was proper for him to exclude those children from his estate. Which is superior: Art 16 or 17? Art. 16. Whatever system we have with respect to legitimes, Congress did not intend to extend the same insofar as foreign nationals are concerned. Moreover, specific provisions must prevail over general ones. Art. 17 is a general provision over Art. 16 is specific. The latter must prevail over the 3rd par of Art. 17. Here, because the national law of the decedent did not provide for the system of legitimes, then the will is valid even if it excluded some of his children.
PCIB VS. ESCOLIN 56 SCRA 266 When it comes to the intrinsic validity of the will, it is the national law of the decedent which is the governing law. In a case of a foreigner, his law will govern the intrinsic validity of his will. However, as discussed in PCIB, do we know the foreign law? Do we take judicial notice of foreign laws? SC said: the question of what is the foreign law governing the issue is one of fact and not of law. Foreign laws may not be taken judicial notice of and has to be proven like any other fact disputed by the parties.
GR: COURTS DO NOT TAKE JUDICIAL NOTICE OF FOREIGN LAWS. They must be proven like any other fact disputed by the parties. Examples of proof: (1) authenticated copy of their civil code (2) jurisprudence (3) authorities, experts EXCEPTION: When the said laws are already within the actual knowledge of the court. Such as well and generally known or they have been actually been ruled upon in other cases before it and none of the parties concerned claim that there is another law governing the same.
CONTENTION IS NOT CORRECT. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.
WHATEVER PUBLIC POLICY OR GOOD CUSTOMS MAY BE INVOLVED IN OUR SYSTEM OF LEGITIMES, CONGRESS HAS NOT INTENDED TO EXTEND THE SAME TO THE SUCCESSION OF FOREIGN NATIONALS. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellents point out that the decedent executed 2 wills: one to govern his Texas estate and the other the Philippine estate— arguing that he intended Philippine law to govern his Philippine estate.
ASSUMING THAT THAT IS TRUE, IT WILL NOT ALTER HE LAW, FOR IT HAS BEEN HELD IN MICIANO VS. BRIMO , A PROVISION IN A FOREIGNER’S WILL TO THE EFFECT THAT HIS PROPERTIES SHALL BE DISTRIBUTED WITH PHIL. LAW AND NOT WITH HIS NATIONAL LAW, IS ILLEGAL AND VOID for his national law cannot be ignored in regard to those matters that Art. .10 — now Art. 16 — of the CC states said national law should govern. It is not disputed that Amos Bellis was a citizen of Texas, USA and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
MICIANO VS. BRIMO 50 Phil 867
Facts: The judicial administrator of the estate of Joseph G. Brimo filed a scheme of parition. This was opposed by Andre Brimo, one of the brothers of the deceased. The opposition was approved. The opposition was based on the fact that the parition in question puts into effect the provisions of Joseph Brimo’s will which are not in accordance with the laws of his Turkish nationality, for which reason they are void being in violation of Art. 10 (now Art. 16) of the CC which provides: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.
Issue #1: Was the approval of the project of parition proper? Ruling: YES. 1. Oppositor did not prove that said testamentary dispositions are not in accordance with Turkish laws
2. He did not present any evidence showing what Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. 3. The refusal to give the oppositor another opportunity to prove such laws is proper for it is discretionary on the part of the trial court. The oppositor was granted ample opportunity to introduce competent evidence. 4. There is no evidence in the record that the national law of the testator was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.
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Issue #2: Is the provision in the will which excludes the oppositor because of his act of opposing the will for being violative of Turkish law, valid? “Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.”
Ruling: NO. 1. The institution of legatees in this will is conditional and that condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality but in accordance with the laws of the Philippines. This condition is void being contrary to law under Art. 792 which provides that Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.
2. It expressly ignores the testator’s national law when according to Art. 10 of the CC, such national law of the testator is the one to govern his testamentary dispositions. Thus, the institution of legatees in said will is unconditional and consequently valid and effective even as to herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that
the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.
Richard’s will was also submitted for probate before the RTC with Atty. Quasha as ancillary administrator. In the project of partition concerning Richard’s estate, a project of partition was filed wherein: - 2/5 of Richard’s 3/4 undivided interest in the Makati property was allocated to Respondent - 3/5 of the Makati property were allocated to Richard’s 3 children
This was opposed by Candelaria on the ground that under the law of the State of Maryland, “a legacy passes to the legatee the entire interest of the testator in the property subject of the legacy. Since Richard left his entire estate to respondent, except for his rights and interests over the A/G Interiors, Inc, shares, then his entire $ undivided interest in the Makati property should be given to Candelaria.
RTC: disapproved the project of partition insofar as it affects the Makati property. It adjudicated Richard’s entire 3/4 undivided interest in the Makati property to Candelaria. Before the CA, Candelaria contended that petitioner willfully breached his fiduciary
duty when he disregarded the laws of the State of Maryland on the distribution of Audrey’s estate in accordance with her will. Respondent argued that since Audrey devised her entire estate to Richard, then the Makati property should be wholly adjudicated to him, and not merely $ thereof, and since Richard left his entire estate, except for his rights and interests over the A/G Int eriors, Inc., to respondent, then the entire Makati property should now pertain to respondent. Atty. Ancheta contended that it is to the best interests of the surviving children that Philippine law be applied as they would receive their just shares.
CA: Annulled RTC orders. The adjudication of the entire estate of Audrey in favor of the Richard and the cancellation of the TCT in favor of Richard over the Makati property was annulled
Issue: What law governs the instrinsic validity of the wills of Audrey and Richard? Ruling: THE LAWS OF MARYLAND SHOULD GOVERN THE WILLS OF AUDREY AND RICHARD.
Note: PROCESSUAL PRESUMPTION APPLIED Since the testator is a Turkish national, the instrinsic validity of his will is governed by his national law -- Turkish law. In the absence of evidence as to what was the Turkish law that was alleged, presumption is it is the same as Philippine law under the doctrine of PROCESSUAL PRESUMPTION.
This is an application of the doctrine of processual presumption. Although, Turkish laws apply which is his national law, since the oppositor was not able to prove such law, what was applied was Philippine law.
1. IT IS NOT DISPUTED that Audrey Guersey was an American citizen domiciled in Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625, it was shown,that at the time of Audrey’s death, she was residing in the Philippines but is domiciled in Maryland, U.S.A.; her Last Will and Testament dated August 18, 1972 was executed and probated before the Orphan’s Court in Baltimore, Maryland, U.S.A., which was duly authenticated and certified by the Register of Wills of Baltimore City and attested by the Chief Judge of said court; the will was admitted by the Orphan’s Court of Baltimore City on September 7, 1979; and the will was authenticated by the Secretary of State of Maryland and the Vice Consul of the Philippine Embassy. 2. BEING A FOREIGN NATIONAL, THE INTRINSIC VALIDITY OF AUDREY’S WILL,
ANCHETA VS. GUERSAY-DALAYGON GR 139868, June 8, 2006
Facts: Spouses Guersay were American citizens who have resided in the Philippines for 30 years. They adopted Kyle Guersey Hill. On July 29, 1979, Audrey (wife) died, leaving a will. She bequeathed her entire estate to Richard (husband) who was also designated as the executor. The will was admitted to probate in Maryland which named James Phillips as executor. The court also named Atty. Ancheta as ancillary administrator.
ESPECIALLY WITH REGARD AS TO WHO ARE HER HEIRS IS GOVERNED BY HER NATIONAL LAW: LAW OF THE STATE OF MARYLAND. 1. This is in congruence to Art. 16 of the CC. 2. Art. 1039 of the CC further provides that “capacity to succeed is governed by the law of the nation of the decedent. 3. Sec. 4, Rule 77 of the Rules of Court on the Allowance of Will Proved Outside the Philippines and Administration of Estate thereunder states: Sec. 4. Estate, how administered.—When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the
In 1981, Richard married Candelaria (respondent) with whom he has 2 children.
payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the
Oct 12, 1982 — Audrey's will was also admitted to probate by the CFI. Atty. Ancheta, as admin of Audrey’s estate, she field an inventory and appraisal of the ff: (1) Audrey’s conjugal share in real estate with improvements at 28 Pili Ave, Forbes Park, Makati, MM valued at P764,865 (2) current account in Audrey’s name with a cash balance of P12,417; and (3) 64,444 shares of stock in A/G interiors Inc. worth P 64,444
residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. (Emphasis supplied)
July 20, 1984 — Richard died, leaving a will wherein he bequeathed his entire estate to Candelaria, except for his rights and interests over the A/G Interiors which he left to Kyle. The will was also admitted to probate in Maryland and Phillips was also designated as the executor who designated Atty. Quasha as ancillary administrator.
3. WHILE FOREIGN LAWS DO NOT PROVE THEMSELVES IN OUR JURISDICTION AND
OUR COURTS ARE NOT AUTHORIZED TO TAKE JUDICIAL NOTICE OF THEM; HOWEVER, ANCHETA AS ANCILLARY ADMIN OF AUDREY’S ESTATE, WAS DUTYBOUND TO INTRODUCE IN EVIDENCE THE LAW OF THE STATE OF MARYLAND. Petitioner failed to introduce the Maryland laws before the trial court thus it was presumed that the former was the same as Philippine laws. Petitioner failed to to
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perform his fiduciary duties. Such failure, prejudiced Candelaria and deprived her of her full successional rights to the Makati Proeptry. Court applied ruling of the CA: In claiming good faith in the performance of his duties and responsibilities, defendant Alonzo H. Ancheta invokes the principle which presumes the law of the forum to be the same as the foreign law (Beam vs. Yatco, 82 Phil. 30, 38) in the absence of evidence adduced to prove the latter law (Slade Perkins vs. Perkins, 57 Phil. 205, 210). In defending his actions in the light of the foregoing principle, however, it appears that the defendant lost sight of the fact that his primary responsibility as ancillary administrator was to distribute the subject estate in accordance with the will of Audrey O’Neill Guersey. Considering the principle established under Article 16 of the Civil Code of the Philippines, as well as the citizenship and the avowed domicile of the decedent, it goes without saying that the defendant was also dutybound to prove the pertinent laws of Maryland on the matter. 4. LAW OF MARYLAND STATES (AS OBSERVED BY THE TRIAL COURT) "all property of a decedent shall be subject to the estate of decedents law, and upon his death shall pass directly to the personal representative, who shall hold the legal title for administration and distribution," while Section 4-408 expressly provides that "unless a contrary intent is expressly indicated in the will, a legacy passes to the legatee the entire interest of the testator in the property which is the subject of the legacy”. Applying that in the case, since Audrey devised her entire estate to Richard, and Richard bequeathed his entire estate to Candelaria, except for his rights and interests over the A/G Interiors, Inc. which he left to Kyle. When Richard died, the
entire Makati property should have then passed on to Candelaria. This assumes the proposition that the law of the State of Maryland which allows “a legacy to pass to the legatee the entire estate of the testator in the property which is the subject of the legacy," was sufficiently proven in Special Proceeding No. 9625. 5. THE COURT TOOK JUDICIAL NOTICE OF THE LAW OF MARYLAND. It applied the ruling in Bohanan vs. Bohanan wherein the law of Nevada was (1) presented as evidence before the trial court and was admitted as such; and (2) it was not disputed by the parties. Applying that in the case at bar, since the pertinent law of the state of Maryland (1) has been brought to record before the CA and the trial court and (2) the parties and other interested persons do not dispute the existence and the validity of the law, then Audrey's and Richard’s estate should be distributed accoring to their respective wills, and not according to the project of partition submitted by Atty. Ancheta. Thus. THE ENTIRE MAKATI PROPERTY BELONGS TO CANDELARIA . 6. ALL DOUBTS MUST BE RESOLVED IN FAVOR OF THE TESTATOR’S HAVING MEANT JUST WHAT HE SAID. Thus, Atty. Ancheta’s motive in equitably distributing Audrey's estate cannot prevail over Audrey’s and Richard’s wishes. Whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones (Bellis vs. Bellis) As to whether an American citizen can acquire the Makati property in view of the Constitutional prohibition.
THE TRANSFER OF THE LAND TO CANDELARIA HAS CURED THE FLAW OF THE OWNERSHIP OF THE GUERSEYS. Article XII, Sections 7 and 8 of the 1986 Constitution explicitly prohibits non-Filipinos from acquiring or holding title to private lands or to lands of the public domain, except only by way of legal succession or if the acquisition was made by a former natural-born citizen. Moreover, since the Makati property had already passed on to respondent who is a Filipino, then whatever flaw, if any, that attended the acquisition by the Guerseys of the Makati property is now inconsequential, as the objective of the constitutional provision to keep our lands in Filipino hands has been achieved.
Note: PROCESSUAL PRESUMPTION WAS NOT APPLIED. The SC did not accept the invocation of the doctrine of processual presumption. This was actually an administrative case filed against the lawyer/administrator. The action of Atty. Ancheta could not be considered in good faith. Because he was in a position to know which laws to apply in this particular case. Since he participated in the proceedings abroad, he cannot simply invoke this doctrine of processual presumption.
TESTATE ESTATE OF SUNTAY July 31, 1964
FACTS: May 14, 1934 – Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in Amoy, Fookien, Republic of China. The value of the estate left by the deceased is more than P50,000. He left real and personal properties in the Philippines and a house in Amoy, Fookien Province, China. He has children in his first marriage with the late Manuela Cruz: Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora and Emiliano. He has a child in his 2nd marriage with Natividad Lim Billian (still alive): Silvino. Intestate proceedings were instituted in the CFI of Bulacan. Letters of administration were issued to Apolonio Suntay. He was replaced by Federico Suntay when Apolonia died. October 15, 1934 – the surviving widow, Natividad filed a petition with the CFI of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on Nov. 1929 by the late Jose Suntay. This was denied because of the loss of the said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. Despite of the deposition of Go Toh who attested that he witnessed the making of the will, the probate court denied a motion for the continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. After WW2, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China , Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N) CFI of Bulacan disallowed the alleged will and testament executed in Manila in Novmber 1929 and the alleged last will and testament executed in Kulangsu, Amoy, China on January 4, 1932, by Jose Suntay.
ISSUE #1: Are Silvino and Natividad estopped to have the alleged will of Jose Suntay probated? RULING: NO. There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China.
ISSUE #2: Has the right of Silvino and Nativided to have the will probated, prescribed? RULING: The dismissal of the petition for probate of the will on February 7, 1938 was no bar to the filing of the petition on June 18, 1947, or before the expiration of 10 years.
ISSUE #3: Was there a will? RULING: AS TO THE LOST WILL, Sec. 6, Rule 77 provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
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Those who testified to the provisions to the lost will of Jose Suntay are: 1) 2)
3)
4)
Manuel Lopez (attesting witness) – was dead at the time of the hearing of the alternative petition Go Toh – he attests to the fact that he was one of the witnesses of the will which consists of 23 pages signed by Jose Suntay at the bottom of each in the presence of Alberto Barretto, Manuel Lopez and himself; he did not take part in the drafting; only that Jose told him that the contents thereof are the same as that one which was in the office of Alberto Barretto; Mrs Suntay had the draft of the will translated into Chinese and he read the translation; he did not read the will and compare it to the draft Ana Suntay -- Her father Jose Suntay left a will in the house of Apolonio Suntay that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. ; she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id .) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto Anastacio Teodoro – Go Toh left the will in Anastacio’s office. He attests to the fact that the will was the same as the draft.
rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened to or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China which states that the minutes of the interrogation of the parties who declare that there are no errors, after said minutes were loudly read and announced actually in the court…. Does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. Decision of the CFI is affirmed.
If the will was snatched, after the delivery of Go Toh to Anastacio sometime in January 1948, then the testimony of Ana Suntay that she heard her brother Apolinio Suntay read the will in September 1934 must not be true.
Note:
The legal requirement that the provisions of the lost will must be “clearly and distinctly proved by at least two credible witnesses” is not present. Credible
The will was allegedly already probated in China. Under our jurisdiction, do our courts automatically recognize such will? No. It is not automatic. It has to undergo another probate proceeding in the Philippines. That is what we call the re-probate proceeding. In the re-probate proceeding, what matters should be proven?
witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. The testimony of Alberto Barretto corroborates that of Go Toh to the effect that only one will was signed by Jose Suntay at his office in which Alberto barreto, Manuel Lopez and Go Toh took part as attesting witnesses. Go Toh testified that he did not leave the will in the hands of Anastacio Teodoro .
AS TO THE WILL CLAIMED TO HAVE BEEN EXECUTED on January 4, 1931 in Amoy, China, THE LAW WHICH A PPLIES ARE THE FF.: Rule 78, Sec. 1. Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper CFI in the Philippines. Sec.2. When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Sec. 3. If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and crossexamine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in
What do you call that probate proceeding in the Philippines? Re probate.
However these requisites were not met.
Did the SC apply the doctrine of processual presumption? No. In re-probate proceeding is governed Rule 78 Sec 2 and 3. It specifically lays down what should be proven in such proceeding. We are not talking about substantive laws here. We are talking about procedural laws. We do not have a presumption that the laws of China are the same as the Rules of Court of the Philippines. Absent proof of the matters specified by the Rules of Court, the probate shall be denied. Thus, we cannot apply the rule on or the doctrine processual presumption.
TESTATE ESTATE OF CHRISTENSEN V S. GARCIA January 31, 1963
Facts: This case involves the will of Edward Christensen who was a citizen of the US and of the State of California. His will was executed in Manila on March 5, 1951 and contains the following provisions: 3. I declare that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twentyeight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx 7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.. xxx 12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and
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wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: .... The executor in his final account and project of partition ratified the payment of P3600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen.
Helen Christensen Garcia filed an opposition to the approval of the project of partition on the ground that it deprives her of her legitime as an acknowledged natural child, she having been declared by US in a case an acknowledged natural child of the deceased. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth.
CFI: the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has a right to dispose of his proeprty in the way he desires, because the right of absolute dominion over his property is sacred and inviolable.
California in accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad. Appellees argue that the clause “if there is no law to the contrary in the place where the property is situated” in art. 946 of the California Civil Code refers to Ar t. 16 of the Civil Code of the philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern.
THE NATIONAL LAW MENTIONED IN ART. 16 OF THE CC IS THE LAW ON CONFLICT OF LAWS IN THE CALIFORNIA CIVIL CODE i.e. Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them.
WHAT LAW SHOULD GOVERN? We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California. Case remanded to the trial court for partition to be in accordance with P hilippine law.
Issue: Which law should apply? Ruling: DECEASED WAS A US CITIZEN AND IS DOMICILED IN CALIFORNIA. THE LAW THAT GOVERNS THE VALIDITY OF HIS TESTAMENTARY DISPOSITIONS IS DEFINED IN ART. 16 OF THE CC. The application of this article in the case at bar requires the determination of the meaning of the term “national law” is used therein. Since there is no single American law governing the validity of testamentary provision in the US, the “national law” indicated in Art. 16 above quoted can not, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California.
THE LAW OF CALIFORNIA PROVIDES: Art. 946 of the Civil Code of California. If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. It is argued that as the deceased is a US citizen, the internal law thereof, which is that given, should govern the determination of the validity of the testamentary provisions of Christensen’s will. Appellant insists that A rt. 946 should be applicable, and in accordance therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision in question should be referred back to the law of teh decedent’s domicild which is the Philippines.
ART. 946 OF THE CALIFORNIA CIVIL CODE IS ITS CONFLICTS OF LAWS RULE. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner. Appellees argue that what A rt. 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of California.
THE CALIFORNIA INTERNAL LAW IS ENFORCED UPON ITS CITIZENS RESIDING THEREIN AND THE CONFLICT OF LAWS RULES FOR THE CITIZENS DOMICILED ABROAD. As already explained, the laws of California have prescribed 2 sets of laws for its citizens, one for residents therein and another for those domiciled in toehr jurisdictions. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then we must enforce the law of
Note: What is the nature of the California Probate law? It is their internal law. Which law will apply here? We apply the conflicts of law rule . Where if the testator is a resident of another jurisidiction, then the law of his domicile will apply. But if we go back to the Philippine law, Art. 16 provides that it is the national law which will apply. So are we going back to California? No. After we refer to the California law, we apply that law. Thus, since it provides that it is the law of the domicile which will prevail (Art. 946), it is Philippine law which will govern. We do not go back to Art. 16 but we go ahead and apply our internal law -- the rules on legitime, succession, etc.. If we go back to Art. 16, it will be an endless football game. This is the renvoi doctrine.
CAYETANO VS. LEONIDAS May 30, 1984
FACTS: Adoracion Campos died. She was survived by her father, Hermogenes and sisters. Being the only compulsory heir, Hermogenes executed an Affidavit of ADjudication whereby he adjudicated unto himself the ownership of the entire estate of the deceased. 11 months later, Nenita (sister of deceased) filed a petition for the reprobate of the will of the deceased which was allegedly executed in the US. She alleged that Adoracion was a US citizen and at the time of her death, was a permanent resident in Pennsylvania and she died in Manila while residing with her sister, Leveriza. She made her will pursuant to the laws of Pennsylvania. - opposed by Hermogenes on the ground that the will is a forgery, that the intrinsic provisions of the will are null and void and if US laws on intrinsic provisions are invoked, they cannot be applied because it would be injurious to him - the opposition was withdrawn Cayetano (executrix of now deceased Hermogenes) that since Judge Leonidas allowed the reprobate of Adoracion’s will, Hermogenes was divested of his legitime which was reserved by the law for him.
ISSUE: Is the will of Adoracion valid? RULING: THE WILL IS VALID. ADORACION WAS A US CITIZEN AT THE TIME OF HER DEATH. THUS ACCORDING TO ART. 16 AND 1039 OF THE CC, IT IS HER NATIONAL LAW WHICH PREVAILS — LAW OF PENNSYLVANIA. With regard to the intrinsic validity of the provisions fo the will, it
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is the national law of the decedent which must apply. Thus in Bellis vs. Bellis the Court ruled: It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
Subsection 2. Testamentary Capacity and Intent
TESTAMENTARY CAPACITY How do we distinguish testamentary capacity from testamentary power? Technically speaking, when we say:
testamentary power — it refers to the power or the privilege granted by the State to its citizens or individuals to execute wills.
testamentary capacity — it refers to the qualification of the testator to execute wills.
3 THEORIES ON THE MEANING OF 18 YEARS OLD 1. Theory under the Spanish Law !
!
you are considered 18 years old if your 18th birthday has passed or commenced One can execute a will one his 18th bday. It doesn’t matter that 18 years ago, the time of his birth was 16:00PM. As long as the clock strikes OOAM one can execute wills.
2. Theory under the American Law ! It is sufficient that the date preceding one’s birthday has commenced ! A person may execute a will on the eve of his birthday 3. Theory under the Civil Code You are considered 18 years old 4 days prior the 18th bday. Because of the ! computation of time under the Civil Code. ! Since there are 365 days in a year, 365 x 18 = 6,570 days + 4 days (leap years). That’s why 4 days before your birthday, you are already considered 18 years of age. This is relevant in contracts/ RPC/ !
How about in wills, when do we consider someone to be 18 years old? We follow the theory of the Spanish Law . This is because the origins of our laws on succession is traceable to the Spanish law.
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.
Based on this distinction, can there be testamentary power without testamentary capacity? Yes. Like in the Philippines, we all have testamentary power because the NCC provides that we can execute wills. But if we do not the qualifications (i.e. 18 years old and above and sound mind) then if even if you have testamentary power, you do not have testamentary capacity. You are not qualified.
Are there also instances when there is testamentary capacity but no testamentary power? Yes. In cases where the State has withheld one's privilege to execute wills. So if we rely on the technical meanings of testamentary capacity and testamentary power, it does not mean that if one has testamentary capacity automatically means that he has testamentary power and vice versa. But, the NCC uses those 2 terms synonymously. When you say testamentary capacity, it also refers to testamentary power and vice versa. But if you are asked in the exam to distinguish, you should distinguish.
The other requisite is soundness of mind at the time of the execution of the will. How do we know if a person is of sound mind?
Can a person suffering under civil interdiction execute a last will and testament? Is he in the same category as a person of unsound mind? Revised Penal Code provides: Art. 34. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. He cannot dispose properties inter vivos. How about wills? Yes, because the latter is mortis causa. A person suffering from interdiction is still qualified to make a will.
Who else are not disqualified? TESTAMENTARY CAPACITY
TESTAMENTARY POWER
Qualification of a person to execute a will. (i.e. whether he is of sound mind and he is 18 years old)
Power granted by the state to a citizen to execute a will
Passive testamentary capacity (to receive) may be referred to as plain testamentary capacity
Active testamentary capacity (to make) is often referred to as testamentary power
Spendthrifts Prodigals as long as they are 18 years of age and of sound mind. How about if the testator, 2 days before the execution of the will was not of sound mind? How about 2 days after? Would that affect his will? It will not. This is discussed in the case of Dorotheo.
DOROTHEO VS. CA 320 SCRA 12 (1999)
Right to make a will provided certain conditions are complied with
Statutory right to dispose of property by acts effective mortis causa
Art. 796. All persons who not expressly prohibited by law may make a will. GR: All persons may make a will as long as he/she is not expressly prohibited by law. When we refer to persons, again we mean natural persons. Because a juridical person cannot have animus testandi.
2 QUALIIFICATIONS OF A TESTATOR: (1) at least 18 years old (2) sound mind
Art. 797. Persons of either sex under eighteen years of age cannot make a will.
Facts: Lourdes who claimed to have taken care of the deceased, Alejandro, filed a special proceeding for the probate of the latter’s will. This was admitted. However, Jose and Vicente (legitimate children of Alejandro) filed a motion to declare the will intrinsically void on the ground that the Alejandro was not of sound mind when he executed the will. This was granted. A writ of execution was issued by teh lower court. The decision dismissing the petition became final and executory.
Issue: Can a will already declared intrinsically void be given effect? Ruling: NO. The matters of due execution of the will and capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being once and forever closed. Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution.
MATTERS DISCUSSED DURING PROBATE: (1) whether the will is indeed the decedent’s last will and testament; (2) whether it complied with the prescribed formalities for the execution of wills; (3) the testamentary capacity of the testator; (4) and the due execution of the last will and testament.
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DUE EXECUTION includes the determination of whether the testator was of sound and disposing mind at the time of ties execution, that he had freely executed the will and was not acting under duress, fraud, menace and undue influence and that the will is genuine and not a forgery, that he was of proper testamentary age and that he is a person not expressly prohibited by law from making a will.
QUESTIONS REGARDING A WILL’S INTRINSIC VALIDITY MAY BE STILL RAISED AFTER THE WILL HAS BEEN AUTHENTICATED. Thus, it does not necessarily follow that a will which is extrinsically valid is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions cannot be given effect.
Note: As long as the testator was of sound mind at the time of the execution, the will is valid.
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning facilities, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. 1st paragraph:
- negative definition of testamentary capacity - remember: it is not necessary that the testator be in full possession of his reasoning faculties or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other causes - a person does not need a perfectly balanced mind to be considered of sound mind
2nd paragraph:
- positive definition - when asked whether the testator is of sound mind enumerate the essential requisites hereafter
- ESSENTIAL REQUISITES: (1) testator must know the nature of the estate to be disposed of !
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must have a sufficient recollection of his properties and comprehend their kind character and quality in general even if the testator is at times forgetful but in general he knows he has lands in Davao City, he has cash in bank (even if he does not know how much exactly his money is)
(2) testator must know the proper objects of his bounty he must be aware of such persons who would naturally have a claim ! upon him (i.e. children, wife) (3) testator must know the character of the testamentary act ! must understand that the document he is executing is the last will and testament and that the effect of such is that the properties stated therein will be inherited by the heirs/devises/legatees
To be considered unsound mind is not necessary that the person must be totally insane. As long as he is not able to comply with the all the requisites of the 2nd paragraph of Art. 799, he is of unsound mind. In that case where the testator had complete senile dementia — he forgot his children, spouse — he couldn’t not be possibly be aware of the proper objects of his bounty. So he is not qualified under that situation. Even if he is not insane but in a coma — how can he possibly execute a will in that situation?
Based on the cases:
NEYRA VS. NEYRA 76 Phil. 333
Facts: Trinidad filed a complaint against Encarnacion for the recovery of 1/2 portion of the property left by their father, Severo. Trinidad was able to get a favorable judgement but the court ordered her to pay Encarnacion P1000 for money spent.
Trinidad appealed to the decision. This was dismissed because of an agreement or compromise entered into by the sisters on Nov 3, 1942. 2 years later, Encarnacion died of Addison’s disease. Her heirs filed a motion for the reconsideration of the judgement saying that the compromise agreement entered into by the sisters could not have been understood by Encarnacion because she was already at the threshold of death. In fact she died the day after the execution of the agreement. If it had been signed at all by Encarnacion, her thumbmark must have been affixed by Trinidad’s attorney, against Encarnacion’s will. When the agreement was filed on Nov. 4, 1942, Encarnacion was already dead.
Issue: Is the compromise agreeement and will valid? Ruling: THE MENTAL FACULTIES OF PERSONS SUFFERING FROM ADDISON’S DISEASE REMAIN UNIMPAIRED. Because of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering f rom tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. The logical conclusion is that Encarnacion was of sound mind and possessed the necessary testamentary and menatl capacity at the time of the execution of the agreement and will dated Nov 3, 1942. - Encarnacion on Oct 31, 1942 had confession, mass in her house, reconciled with Trinidad - the sisters agreed to have the case dismissed on the condition that the property involved should be givene xclusively to Trinidad and that Trinidad should waive her share in the rents collected. - the sisters agreed to send for Atty. Panis to prepare the document which will embody their agreement - the agreement was read to Encarnacion in a slow and loud voice in the presence of Fr. Garcia, Dr. Abad and Dr. Aldecoa, Trinidad ad others - Encarnacion asked for the pad and the 2 docuemnts and with the help of the son of Trinidad, placed her thumbmark at the foot of each one of the 2 documents, in duplicate, on her bed in the sala, in the presence of the attesting witnesses
Note: What does Addision’s do the person? The kind of disease does not affect the mind in such a way that it will make it unable to execute a will. A person of addison’s disease or sleeping sickness is still considered of sound mind because what is important is that he is able to meet the 3 requisites: (1) testator must know the nature of the estate to be disposed of (2) testator must know the proper objects of his bounty (3) testator must know the character of the testamentary act
BAGTAS VS. PAGUIO 22 Phil. 227
Facts: The probate of the will of Pioquinto Paguio was opposed on the ground that it was not executed in accordance ot the formalities and requirments of the law and the testator was not in the full enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a valid will. Record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the time of his death suffered from a paralysis of the left side of his body; that a few years prior to his death his hearing became impaired and that he lost the power of speech. Owing to the paralysis of certain muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his right hand, however, and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family. Pioquinto, wrote out on pieces of paper notes and items relating to the disposition of his property and these notes were delivered to Señor Marco who transcribed them and put them in form. The witnesses testify that the pieces of paper upon which the notes were written are delivered to attorney by the testator; that the attorney read them to the testator asking if they were his testamentary dispositions; that the testator assented each time with an affirmative movement of his head; that after the will as a whole had been thus written by the attorney, it was read in a loud voice in the presence of the testator and the witnesses; that Señor Marco gave the document to the testator; that the latter, after looking over it, signed it in the presence of the four subscribing witnesses; and that they in turn signed it in the presence of the testator and each other.
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Issue: Was Pioquinto of sound mind at the time he executed his will? Ruling: YES THE PRESUMPTION IN FAVOR OF THE MENTAL CAPACITY OF THE TESTATOR WAS NOT OVERCOME. Since the testator here was never been adjudged insane by a court of competent jurisdiction, this presumption continues.It is therefore incumbent upon the opponents to overcome this legal presumption by proper evidence. This we think they have failed to do. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard, few indeed would be the number of wills that could meet such exacting requirements. The authorities, both medical and legal, are universal in statement that the question of mental capacity is one of degree, and that there are many gradations from the highest degree of mental soundness to the lowest conditions of diseased mentality which are denominated as insanity and idiocy. The statements of the witnesses to the execution of the will and statements of the conduct of the testator at that time all indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the time of the execution of the will it does not appear that his conduct was irrational in any particular. He seems to have comprehended clearly what the nature of the business was in which he was engaged. The evidence show that the writing and execution of the will occupied a period several hours and that the testator was present during all this time, taking an active part in all the proceedings. Again, the will in the case at bar is perfectly reasonable and its dispositions are those of a rational person.
SHE WAS AWARE OF THE NATURE OF HER ESTATE TO BE DISPOSED OF, THE PROPER OBJECTS OF HER BOUNTY AND THE CHARACTER OF THE TESTAMENTARY ACT. A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was not included therein as devisee.
Note: As long as the person is able to satisfy the 3 requisites of the 2nd paragraph of Art. 799, he is of sound mind. To be considered of unsound mind, it is not necessary that the person must be totally insane. As long as he is not able to comply with all the requisities he is of unsound mind. i.e. complete senile dementia, in a coma
SOUND MIND Torres vs. Lopez
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Note: How was he able to execute his will? Could he still speak? How did he communicate? He made signs he was able to indicate his wishes. Even if the testator suffered from paralysis (could not move a part of his body.) Insofar as soundness of mind is concerned he would still qualify under 799.
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BALTAZAR VS. LAXA GR 174489, April 11, 2012
Facts: Pacencia made her will when she was 78 years old. It was entitled Tauli Nang Bilin o Testamento Miss Pacencia Regala in the Pampango dialect on Sept 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament. She thereafter affixed her signature at the end of the said document on page 3 and then on the left margin of pages 1, 2, and 4.
Avelino vs. Dela Cruz
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Insomnia, in view of the positive and direct testimonies of the witnesses, the testator was mentally capacitated
Samson vs. Corrales Tan
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Bagtas vs. Paguio
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Issue: Was Pacencia of sound mind when she executed her will? Ruling: BALTAZAR FAILED TO OVERCOME THE PRESUMPTION IN FAVOR OF THE MENTAL CAPACITY OF THE TESTATOR. Forgetfulness does not mean that a person is not of sound mind. The burden of proof rests upon the person alleging that the testator is of unsound mind. There is no substantial evidence, medical or otherwise that would show that Pacencia was of unsound mind at the time of the execution of the will. The testimony of the subscribing witnesses to a will concerning the testator’s mental condition is entitled to great weight where they are truthful and intelligent. There was no showing that Pacencia was publicly known to be insane 1 month or less before making the will thus the presumption continues.
Blindness, because this is in fact recognized under
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Rosie testified that Pacencia was referred to as magulyan or forgetful because she would sometimes leave her wallet in the kitchen then start looking for it moments later. She was just based on her personal assessment. Antonio testified that Pacencia thought that the documents pertained to a lease of one of her rice lands and it was he who explained that the documents were actually a SPA to sell the fishpond and other properties upon her departure for the US. Then Pacencia said “WHy will I never return, why will I sell all my properties? Who is Lorenzo? Is he only [son] of God? I have other relatives [who should] benefit from my properties. Why should I die already?”
indicative of unsound mind Senile dementia usually called childishness has various forms and stages. To constitute complete senile dementia there must be such failure of the mind as to deprive the testator of intelligent action,. In the first stages of the diseases, a person may possess reason and have will power. (27 L. R. A., N. S . [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.) The mere fact that she was under guardianship is not conclusive as to the condition of the person Rule concering the nature and rationality of the will 1. Is the will simply or complicated? 2. Is it natural or unnatural? Art. 808 under the proper conditions No presumption of incapacity can arise from the mere fact that he was blind He must comply with Art. 808, though
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Caguioa vs. Calderon The will was admitted for probate. Antonio Baltazar filed an opposition averring that the properties subject of the Will belong to Nicomeda Ragala Mangalindan, his predecessor-in-interest, hence Pacencia had no right to bequeath them to Lorenzo. Later argued that Pacencia was mentally incapacble to make a will.
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Senile Dementia, when it is not complete is not
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Hernaez vs. Hernaez
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Even if the testator was alleged to be in a coma several days prior to the making of the will . This was because there were testimonies that there were times when the testator was awake and had lucid intervals Mere professional speculation cannot prevail over the positive statements of 5 credible witnesses whose testimonies are not unreasonable
Paralysis and loss of speech , because one can still comply with the requisites unde rArt. 799 Said requisites refer only to state of mind and not to physical infirmities Mere weakenss of mind and body, induced by age and disease do not render a person incapable of making a will
Old Age: that the testator is very old does not overcome the presumption in favor of the mental capacity of the testator
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SOUND MIND Neyra vs. Neyra
Alsua-Betts vs. CA
UNSOUND MIND !
Addison’s disease (sleeping sickness) because
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people who are afflicted with such do get a good sleep and the mind is well rested Even if the hand is guided in signing the will is not indicative that the testator was mentally incapacitated
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(1) Excessive drunkenness or drug addiction (2) Person in comatose (3) Undue Influence, unless (a) There has been initial lack of testamentary capacity (b) If from the day of execution of the will until the death of t he testator, his mental condition is such that he cannot judge the propriety of revoking the will; and (c) Where the alleged testator harbors the belief that he had not executed the will in question (Cuyugan vs. Baron) (4) Excitement or stress — if cannot recall intelligently the extent of his property, etc. (5) Partial Insanity; insane delusions; hallucinations; belief in things which do not exist (6) Idiocy — congenital intellectual deficiency
Mere weakness of mind or partial imbecility from disease of body or from age does not render a person incapable of making a will.
Sancho vs. Abella
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Deafness by itself does not overcome the presumption that the person is in the full enjoyment of his mental capacity
Carillo vs. Jaococo
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A judgement rendering a testator mentally
incapacitated after the execution of the will is not conclusive that the testator was incapacitated at the time he made the will
Yap Tua vs. Yap Ca Kuan
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“sick” — did not say the illness although the doctor's testimony pertained to the mental health of the testator 24 hours before the execution of the will, there were other testimonies which is to the effect that the testator was of sound mind and memory (i.e. asked for pen and ink
Epilepsy
as long as the will was not executed during an attack
Bugnao vs. Ubag
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Galvez vs. Galvez
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advanced stage of tuberculosis complicated with severe intermittent attacks of asthma all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity he was able to give the person who wrote the will clear and explicit instructions as to how his properties will be disposed cholera evidence show that the mental faculties of the testator were unimpaired, the contents of the will, and the desire manifested by the latter to rectify an error he incurred in the execution of his first will, show that the testator was of sound mind and perfectly aware of his duties with respect to the legal, inviolable rights of his daughter and sole heir.
As to whether a person can execute a will, may also depend upon his IQ IQ level
Idiots
25
Imbeciles
26-50
Moron
51-70
Can make a will? ! #$%$' ()$'
! #$%$' ()$'
* +,$ -.-+#/0)11%
They are congenitally and intellectualy deficient. They cannot take care of their bodily needs. They cannot be trained. They are mentally deficient due to disease and they can be trained to take care of their bodily needs and only to that extent. They can learn reading, writing, simple math. They can be self-supporting.
In the case of Torres vs. Lopez, the mere fact that a person is placed under guardianship, does not necessarily mean that he is not of sound mind. A person can be placed in guardianship for other reasons (i.e. he could be a spendthrift, prodigal, civil interdictee). In spite of being a spedthrift, prodigal, a civil interdictee, he is qualified to execute a will. Each case must be decided upon its own facts. It is a case to case basis.
Art. 800. The law presumes that every person is of sound mind, in the UNSOUND MIND Torres vs. Lopez
Complete Senile Dementia, because it is only when the three requirements are highly unlikely to have been complied with.
Albornoz vs. Albornoz
Lack of memory and understanding like in Jocson vs. Jocson, unless the failure of memory is total or extends to his immediate family or property
Neyra vs. Neyra
absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one mouth, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. Under Art. 800, the general rule is soundness of mind. Every person is of sound mind, in the absence of proof to the contrary.
Delirium when it beclouds the mind
The burden is on the person alleging that the testator was not of sound mind at the time when he made the will. Effect: During probate, the testator need not prove that he is of sound mind because it is presumed that he is. The burden is upon the oppositor to show that the testator was not of sound mind at the time of the execution of the will.
Proof Required to discharge the burden: CLEAR AND CONVINCING EVIDENCE
- high degree of proof (goes next to proof beyond reasonable doubt)
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There can be an instance that the presumption is on the reverse: that the testator was not of sound mind at the time that he made the will. 3 INSTANCES WHEN THE PRESUMPTION IS THAT THE TESTATOR WAS NOT OF SOUND MIND: (1) When the testator was publicly known to be insane one month or less before making his will (Art. 800(2)) (2) When the testator was judicially declared to be insane before making the will (In Spec Pro: hospitalization of insane persons; can file a petition for the hospitalization of that person) (3) Insanity of a general or permanent nature shown to have existed at one time is presumed to have continued (based on Rule 131, Sec. 3(ee), Rules of Court) Rule 131, Sec. (ee) — A thing once proved to exist continues as long as is usual with things of the nature;
ATTENDING PHYSICIAN — given highest regard
SAMSON VS. CORRALES TAN 44 Phil 573 The testimony of the physician here was not given much weight. Because it was merely his speculations. He was not the attending physician of the testator. As to the witnesses: ATTESTING WITNESSES OF THE WILL (notarial wills) — given great weight OTHER WITNESSES — if they were present during the execution of the will or at least reasonably before after the same day; they can also testify as to the mental condition of the testator
ex. A is born retarded. When he was 5 , 18 and 20 years old, he was still retarded. Then when he died, a petition for probate was filed for a document which is allegedly A’s last will and testament. What is the presumption with respect to the mental condition? It is presumed that his mental condition continued. Because it was already established to exist at some particular point in time. One cannot allege that all his time he was retarded then suddenly he made a will.
Effect: the proponents of the will have the burden of proof to show that the testator was of sound mind at the time of the execution of his will. Proof Required: Clear and Convincing Evidence.
witness
Ramirez vs. Ramirez
notary public
weight given to testimony not given much weight (E to the GR)
Evidence allowed by the Rules to prove soundness of mind:
given weight
39 SCRA 147 the ground of the lack of testamentary capacity. Therein she instituted her nephew, Lirio Pfannenschmidt. He is one of 4 children of the brother of Maria, Jose.
Torres vs. Lopez
3 doctors in the hospital where testator died
Jose testified that when Maria’s husband died, Maria went out looking for him — she had totally forgotten that he had passed away. He also said that she was easily susceptible to any suggestion from others, particularly those close to her and after doing what she was told, would promptly forget about it. 2 doctors gave their testimonies: Dr. de Arcos, family physician and Dr. Germain who had an impressive CV. Notary public also gave his testimony.
Issue: Was Maria of sound mind at the time she executed her will? Ruling: MARIA WAS COULD NOT BE OF SOUND MIND AT THE TIME SHE EXECUTED HER WILL. Trial court judge was based mainly on expert medical testimoony to the effect that her mental infirmity was observed by the family physician as far back as 1953 and confirmed in 1955 by a competent psychiatrist, who described the process of the mental degeneration as progressive and irreversible; on the written admissions and declarations of appellant herself, who would have no motive then to falsify the facts; and on the t estimony of the testatrix' brother-in-law, Jose Eugenio Ramirez. On the question of credibility, we find no ground to disregard such evidence in favor of the vague, inconclusive statements of the notary public who authenticated the will and of the two instrumental witnesses, nor even of the testimony of the rebuttal witnesses, the more categorical character of whose affirmations only serve to weaken their credibility, conflicting as they do not only with the evidence for appellee but also with that given by the other witnesses for appellant.
Note: When the notary public testifies before the court to prove the soundness of mind of the testator, as a general rule, it is entitled to great weight. However, what was the nature of his testimony in this particular case? Aside from the fact that he merely referred to the certification? The testimony was of the nature of being evasive and would tend to beg the very issue. He did not positively declare that the testator was of sound mind. Since the testimony was not categorial and direct, the SC did not give much weight to it.
Although generally, testimonies of notary publics are given great weight, the notary public in this case was very evasive and did not directly and categorically state that the testator was of sound mind. All 3 doctors examined Tomas Rodriguez before the will was executed. On the same day the will was executed, they signed a certificate stating that patient was sufferingfrom anemia, hernia, dyspepsia and senility; that the mental faculties were sound except that the memory is weak. The will was short. It could easily be understood by a person in physical distress. It was reasonable.
RAMIREZ VS. RAMIREZ Facts: This involves the will of Maria Garnier Garreau which was denied probate on
Why?
Junquera vs. Borromeo
3 subscribing witnesses
not given weight
The fact these witnesses had a hazy recollection of the execution of the will shows that the will was a forgery coupled with the fact that the testator was old and physically poor, his signatures were straight.
Samson vs. Corrales Tan
physician
not given much weight
Because he was not the attending physician. He merely made speculations and assumptions.
not given any weight
They said that Silvestra understood the will when none of them exchanged a single word of conversation with her. There was no evidence that Silvestra took any active part in the preparation thus the will was not admitted to probate.
Cuyugan vs. Baron & Baron
3 witnesses
Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. Just remember we need testamentary capacity, both age and soundness of mind, at the time of the execution of the will. As long as the testator is of sound mind at the time the will was made, even if he becomes insane after, such fact will not invalidate the will.
As to physicians:
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The execution of a will during a lucid interval is valid. Supervening capacity or supervening incapacity does not invalidate an effective will.
What happens if the testator did not understand the language used in the will but it was interpreted or explained to him? Is that sufficient? IT WILL NOT CURE THE DEFECT.
Art. 802. A married woman may make a will without the consent of her
From the phrase: “The will written in English and was explained and interpreted to the testator..” — we can say that the will is invalid as the testator did not understand the language used.
husband, and without the authority of the court.
Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. Even if a woman is married, she can execute a last will and testament without the consent of the husband. While in the Family Code, a spouse cannot dispose of a property belonging to the absolute/conjugal property without the written consent of the other, in succession, the spouse may validly dispose of his or her particular share in the conjugal/absolute property — without the consent of the other; more so when it comes to his/her separate property. Because that disposition will only take effect after the death of the spouse. Upon the death, there has to be a liquidation of the conjugal partnership of the absolute community. Family Code provides: Art. 97. Either spouse may dispose by will of his or her interest in the community property.
law presumes that the testator knew the language With respect to this requirement, the law presumes that the language used in the will is known to the testator. In fact, if there is a question as to whether the testator understood the language, extrinsic evidence may be presented — writings, witnesses who can testify that the testator.
EFFECT OF THE PRESUMPTION: 1. There is no statutory requirement that the will should state that it is in a language or dialect known to the testator. !
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in some cases, the will mentions that a particular will is written in a language known to the testator — such mentioning is allowed; but is not required even without that statement, the will is not automatically voided.
2. There is no need to state in the attestation clause that the will is written in a
language known to the testator. !
Under Art. 805, there are 4 statements which must be mentioned in the attestation clause, but this is not one of them
3. That the will is written in a language known to the testator may be proven by
extrinsic evidence !
That a married woman may dispose by will, is just reiterated here in the law of succession because before this was not recognized. To erase all doubts that the married woman can dispose of her share in the absolute community or separate property by will, we have this provision.
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when we go to the principle on substantial compliance, there are matters which cannot be proved by extrinsic evidence, you only have to limit yourself to the writings in the will, in the attestation clause or in the acknolwedgement insofar as the language is concerned, you can accept extrinsic evidence, i.e. witnesses, writings made by the testator while he was still alive, etc
ABANGAN VS. ABANGAN 40 Phil 476 Subsection 3.
Forms of Wills
Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. We have 2 kinds of wills which are recognized in the NCC: (1) notarial will (2) holographic will / ordinary wills These wills require different formalities. Art. 804 is a general requirement which is applicable in both holographic wills and notarial wills.
MUST BE IN WRITING As to what kind of writing, we have to make a distinction — in notarial wills: typewritten, computerized holographic wills: everything has to be in the handwriting of the testator The law does not require any kind of ink, pwede pencil, ballpen, pentel pen. The law does not require any kind of paper. You can even write it on your wall. Pero ang hirap nun i-probate. What is important here is oral wills are NOT allowed. Only written wills are allowed in our jurisdiction.
NUNCUPATIVE WILLS — wills orally made by the testator in contemplation of death and before competent witnesses. - this kind of will is not recognized; even if you have 1000 witnesses
MUST BE IN A LANGUAGE OR DIALECT K NOWN TO THE TESTATOR The testator must understand the language used in the will. He does not need to be proficient in the language as long as he can understand it.
FACTS: This involves the probate of the will of Ana Abangan. The will consists of 2 sheets written in Bisaya. 1st page contained all the disposition of the testatrix, duly signed at the bottom by Montalban in the name and under the direction of the testatrix and by 3 witnesses. The 2nd page contains only the attestation clause duly signed at the bottom by the 2 instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate. It was alleged that the records do not show that the testatrix knew the dialect in which the will was written.
ISSUE: Should the will be avoided because it does not state that Ana knew the dialect in which her will was written? RULING: NO. The circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.
Note: Why did the opposition even contend that the will was not in the language known to the testator? The will was written in Cebuano but the testator did not reside in Cebu or nearby localities. Based on the circumstances of the testatrix during her lifetime, one can say that there is a connection between the language used in the will and the language which she knew or understood during her lifetime. The court could safely presume that the neighboring localities knew the language spoken because of the proximity. Here the will was valid.
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Does the presumption apply in the case? No. The surrounding circumstances of the REYES VS. VIDAL 91 Phil 127
case prove that the language used in the place of residence and the language that he knew was not Spanish.
Note:
This involves the petition for the probate of the will of Maria Zeniga Vda. de Pando. Dolores Vda de Vidal opposed the petition on the ground that the will was written in Spanish which the testatrix did not understand.
Nothing in the cirucumstances of the testator would show that he knew the Spanish language. He lived in San Juan, Rizal and he was a Visayan. He cannot be presumed that a Visayan knows the Spanish language.
Note:
If you notice, where the SC allowed the probate of the will, at least there are certain circumstances which bear a CONNECTION between the testator and the language used in the will .
Even if nobody testified as to whether the testatrix knew the Spanish language, the evidence on record showed that the testatrix knew the language. - several letters written in spanish - she was a mestisa - she was married to a Spaniard - the legal presumption that she knew the language in which the will was written stands
In this case, the SC said that no such presumption can arise because there is nothing in the records which would show that the testator knew the Spanish language.
LOPEZ VS. LIBORO ABADA VS. ABAJA GR 147145, January 31, 2005 Opposition: nowhere in the will can one discern that Abada (testator) knew the Spanish language.
81 Phil. 429 This involves the last will and testament of Don Sixto Lopez. It was written in Spanish. Liboro impugns the will for its silence on the testator’s understanding of the language used in the testament.
Note: Was the will written in the language known to the testator? Yes. A witness testified that Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and his companions would talk in Spanish.
ISSUE: Is the will valid? RULING: YES. There is no statutory requirement that such knowledge be expressly
We have here extrinsic evidence — the testimony. It is to the effect that the testator, during his lifetime, used to gather Spanish-speaking people. This was sufficient to prove that he knew the language. Besides, you have this presumption that the testator knew the language which was used in the will. Presumption stands.
stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel , 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect.
ACOP VS. PIRASO
SUROZA VS. HONRADO
91 SCRA 127
110 SCRA 32
FACTS: This involves the will made by Marcelina Suroza, a veteran’s widow. The will
Testator: Piraso, lived in Baguio language used in the will: English
was in English and thumbmarked by her. She was illiterate. Therein, she bequeathed all her properties to granddaughter Marilyn.
The record show that the testator knew no other language other than Igorot and Ilocano.
Does the presumption that the will was w ritten in the language known to the testator stand? No. Even though there is no requirement that whether the language is known to the testator be written in the will, it was not only proven that the will was written in English but there is also positive proof that Piraso knew no other language than Igorot and Ilocano. The presumption did not arise because of the contrary evidence. Even if the presumption would arise, it can be fully contradicted and destroyed by evidence.
Note: Based on this case, you cannot see a connection between the language used in the will and the circumstances of the testator. The will was written in English, and the testator lived in Baguio. There was no evidence that he travelled to the US, or any place where English is spoken. He lived in Baguio and he only knew the Igorot and Ilocano dialect. Even if you have the presumption under the law that the will is written in a language known by the testator, it will not stand if it is fully contradicted and destroyed because of evidence which prove otherwise.
TESTATE ESTATE OF JAVELLANA V S. JAVELLANA
The petition for probate filed by the laundrymaid of Marcelina was granted by Judge Honrado. Nenita Suroza opposed the petition on the ground that the will was falsified. This was corroborated by Marcelina’s niece. Nenita, 10 months later, filed a complaint against Judge Honorado for having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)
ISSUE: Should disciplinary action be taken against respondent judge for having admitted to probate a will which on is face is void because it is written in English, a language not known to the illiterate testatrix?
RULING: In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
106 Phil 173 Language used in the will: Spanish Opposition: language was not understood by testator; he was a resident of Rizal where Spanish is not spoken; he spoke the Visayan language when he was alive.
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LEANO VS. LEANO
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credibel witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as foresaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or causd some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 805 gives us the requirements for notarial wills.
30 Phil 612
Facts: Testatrix, Cristina Valdes, placed a cross against her name attached by some other person to the instrument offered for probate which purports to be her last will and testament, in the presence of the three witnesses whose names are attached to the attesting clause, and that they attested and subscribed the instrument in her presence and in the presence of each other.
Issue: Is the will valid? Ruling: The placing of the cross opposite her name at the conclusion of the instrument was a sufficient compliance with the requirements of section 618 of the Code of Civil Procedure, which prescribes that except where wills are signed by some other person than the testator in the manner and form therein indicated, a valid will must be signed by the testator. The right of a testator to sign his will by mark, executed animo testandi, has been uniformly sustained by the courts of last resort of the United States in construing statutory provisions prescribing the mode of execution of wills in language identical with, or substantially similar to that found in section 618 of our code, which was taken from section 2349 of the Code of Vermont.
Note: There was evidence that Cristina Valdes intended the cross to be her signature. Here, the will was considered signed by the testator -- thus valid.
Even if the law says “every will,” it only refers to notarial wills. I don’t suggest that you memorize Art. 805 verbatim. But you have to master all the requirements mentioned. Let us summarize the formalities of notarial wills.
GARCIA VS. LACUESTA
1. Must be in writing (Art. 804) 2. Must be in a language or dialect known to the testator (Art. 804) 3. Must be subcribed at the end by the testator himself or the testator’s name written by some other person in his presence and by his express direction 4. Must be attested and subcribed by 3 or more credible witnesses in the presence of the testator and of one another 5. Must be signed on the left margin by the testator or the person requested by him to write his name and by the instrumental witnesses on each and every page thereof except the last 6. All the pages shall be numbered chronologically in letters , placed on the upper part of each page 7. There must be an attestation clause 8. The will must be acknowledged before a notary public (Art. 806)
Facts: The will is written in the Ilocano dialect and contains the following
What is the purpose why we have these requirements? The purpose is to close the door against fraud, bad faith, to avoid substitution and to guarantee the authenticity of the will. If you don’t have these formalities, there might be a chance that we are left with a last will and testament which is not really executed by the testator. It may be forged one. He may have made it but he was forced or intimidated to execute it.
SUBCRIPTION BY THE TESTATOR OR BY SOME OTHER PERSON IN THE PRESENCE AND UNDER THE EXPRESS DIRECTION OF THE TESTATOR The will must be subscribed by the testator himself. He must sign it.
Can he delegate the task to someone else? Yes. As long as the signing is done in the presence of the test ator and under the express direction of the testator.
What should the testator affix in his will? Ideally, it should be his full signature. What if he merely used his customary signature, “JD Cruz”? It is allowed. What if he merely signs his initials, JDC? Yes. What if thumbmark or a smiley face or a thumbmark or stamped? Yes. What do you have to remember in notarial wills?
As long as it is the customary signature of the testator or he intended it to be his signature, it will be a valid signature. That is in notarial wills.
90 Phil. 489 attestation clause: We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses. In testimony whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D. Sgd. Numeriano Evangelista Sgd. Rosenda Cortes Sgd Bibiana Illegible
The will was signed by Atty. Florentino Javier who wrote the name of Antero Mercado followed below by “A ruego del testator” and the name of Florentino Javier. Antero Mercado allegedly wrote a cross immediately after his name. CA said that the attestation clause failed to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof.
Issue: Is the will valid? Ruling: CA upheld. VOID. THE ATTESTATION CLAUSE IS FATALLY DEFECTIVE FOR FAILING TO STATE THAT ANTERO MERCADO CAUSED ATTY. JAVIER TO WRITE THE TESTATOR’S NAME UNDER HIS EXPRESS DIRECTION, AS REQUIRED BY SEC. 618 OF THE CODE OF CIVIL PROCEDURE. The herein petitioner Garcia argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.
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Note: Was it signed by him? SC ruled that there was no proof that the cross was intended by Antero Mercado to be his signature. The SC ruled that if one should have another person sign in their behalf, such fact must be stated in the attestation clause. Since it was not provided in the attestation clause, the will was rendered void. Again, it was voided because such fact was not mentioned in the attestation clause. Under the law, it is actually acceptable that a 3rd person to subscribe a will in the presence of the testator and under his express direction. However, there is an additional requirement: that it should be stated in the attestation clause. None was written in the attestation clause so the will was void. Take note that, it was not voided because the cross was not the customary signature of the testator because a 3rd person may sign on behalf of the testator. Again, the will was disallowed because the attestation did not contain that the signature was signed by someone else. That is the difference between Leaño vs. Leaño and Garcia vs. Lacuesta.
Can one of the attesting witnesses sign on the behalf of the testator? In the Barut vs. Cagacungan, it appears that anybody may sign for the testator. Even one of the subscribing witnesses. But in the much later case of In Re Will of Tan Duico, the SC implied that it is allowed that one of the subscribing witnesses to sign as long as there are more than 3 witnesses. Because in the case of Barut , there were actually 4 witnesses.
So, this is allowed as long as there are more than 3 witnesses or at least 4 witnesses. When the 3rd person signs on behalf of the testator, the law says that it must be in his presence and under his express direction.
witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.
WITH REGARD TO THE ATTESTATION, SEC. 618 DOES NOT SAY THAT THE WITNESSES MUST BE DIFFERENT FROM THOSE WHO SIGNED THE ATTESTATION CLAUSE. Because in the first part of said section, after speaking of the signature of the testator or the person signing in his place, it adds, "and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other ," from which it clearly follows that the same witnesses who signed on the left margin of
each page of the document presented by the testator to them as his will, must be the ones who should sign the attestation clause , inasmuch as they alone can certify the facts to be stated in said clause, for having taken a direct part therein, as they saw the testator sign the will, or the person requested by him to sign all the sheets of the will, that is, the document constituting his last will and testament, and affirm that it was signed under his express direction in the presence of said witnesses and that all the sheets thereof had also been signed by them in the presence of said testator and of each of them, as stated in the attestation clause of the will of the deceased Tan Diuco, with the other details appropriate in said clause. THE 3 WITNESSES WHO SIGNED THE ATTESTATION CLAUSE, ALSO SIGNED THE LEFT MARGIN AND BESIDE THE SIGNATURE OF THE TESTATOR OR OF SIMPLICIO SALA WHO SIGNED BY THE ORDER OF THE LATTER. It is evident that in the instant case, it is merely a matter of technicality devoid of any importance as to the probate of the will that said witnesses are called instrumental witnesses, as if they were different from those who have to sign the attestation clause, for all of them are but the same witnesses; and, as this court held in the case of Abangan vs. Abangan (40 Phil., 476), "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when a interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded;" which doctrine must be applied in this case, in view of the facts herein mentioned and what has been above demonstrated.
The document is admitted to probate.
Note: IN RE WILL OF TAN DUICO 45 Phil 807
Facts: Mamerta Base filed this petition for the probate of the will executed by the Chinaman Tan Duico. The latter died on December 8, 1920. The document was signed by Simplicio Sala by the order of the testator, whose name is before the said signature, by reason of the latter’s incapacity on account of his weakness and the trembling of his hand, the testator also stating that he directed Simplicio Sala to sign it in his name and in the presence of the 3 witnesses who also signed with him at the bottom of the document, and on the left margin of each of its 3 pages correlatvely numbered in the letters by Sala in the name of Tan Duico and by witnesses: Maturan, Fenomeno and Peñaredondo. to wit: We, the undersigned witnesses to the forgoing will, do hereby state that the testator signed this will and each of its sheets in the presence of all and each of us, and we and each of us likewise did sign this will and all of its sheets in the presence of the testator and each of us, witnesses. Tan Duico By Simplicio Sala Fenomeno Maturan Peñaredondo
“IN HIS PRESENCE” What do you mean by “in his presence”? There are 4 tests of presence: (1) Test of vision — testator must see the will being signed (2) Test of position — even if he did not see, but he was in a position to see the will being signed (3) Test of mental apprehension — did not see that the will was being signed by the person directed by him, but at the back of his mind, the testator knows that the will is being signed (4) Test of available senses — usually applied to blind testators A blind person can be a testator under Art. 808. The fact that he cannot see, does not mean that there was no signing that was done in his presence. The signing could be known with the use of the other available senses like touch, smell, or hear. It can be considered within his presence as long as it is within the range of the other available senses. This must be coupled with the fact that the signing must be under the direction of the testator. The subscriber must have been clearly authorized by the testator.
BY HIS EXPRESS DIRECTION The probate was denied by the CFI of Leyte it was not signed by three instrumental witnesses beside the signature of the testator and before the attestation clause.
ISSUE: Is the will valid? RULIGN: ACT 2645 PROVIDES THAT THE WILL MUST BE ATTESTED AND SIGNED BY 3 OR MORE CREDIBLE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF EACH OTHER. Sec. 618 provides: The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and that fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three
The testator, by word of mouth or action should clearly indicate to the proxy his desire to have his name signed on the instrument. Since the law says “express direction,” such direction by the testator cannot be implied. The testator’s silence does not mean that he gave his consent. There has to be an express direction from the testator.
WHAT IS THE PROXY SUPPOSED TO AFFIX IN THE WILL? The proxy must affix the name of the testator — since it is the testator’s will. He may also put “ for Juan Dela Cruz by Rafael Rivas”
What the third person spelt the testator’s name incorrectly? It does not matter. As long as what is affixed is intended to be the name of the testator.
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How about an e-signature under the Electronic Commerce Act — is that allowed in wills? An e-signature, according to the E-Commerce Act, is one attached to or logically associated with the e-data message or e-document or any methodology or procedures employed or adopted by a person with the intention of authenticating or approving an e-message or e-document. They are affixed pursuant to the transaction and contracts. The intention in the law, under the E-Commerce Act, is for the signatures to be attached pursuant to transactions and contracts. As we have already discussed before, wills are not contracts. They are unilateral acts of the testator. Therefore, you cannot affix an e-signature in a will. In notarial wills, even if we say that such signature is intended to be a signature, the law does not yet allow those e-signatures to be affixed in wills. More so in holographic wills since everything has to be in the handwriting of the testator. E-signatures are just for transactions and contracts.
LOCATION OF THE SIGNATURE: SIGNED AT THE END When you say “end,” it is the logical end . What do we mean by the “logical end”? Order of things in a will: (1) testamentary provisions (2) signature (3) attestation clause (4) signatures of the witnesses (5) acknowledgement (6) signature of the notary public Logical end — that portion after the testamentary dispositions but before the attestation clause.
It is not necessarily the physical end. Because in one case, there is a big space between the testamentary provisions and the attestation clause, it was alleged that the will is void because the signature does not appear to be at the end. In fact, it was physically in the middle of the document. That the attestation clause was added belatedly. The SC said that the will was signed at the end because it is found after the testamentary dispositions and before the attestation clause — although the attestation clause is on the second page. Even if there was still a big space after the signature, it is okay. The law does not say that the signature should be at the physical end. It is required that it be merely placed on the logical e nd.
What if the after the signature of the testator in the notarial will, he made some insertions? Testator forgot to include an heir. So he puts the disposition there and signs it again (before the attestation clause.) What is the effect of the insertion after the signature? When it comes to notarial wills, the presence of additional provisions after the signature of the testator will invalidate the entire will. Please remember that because the rule is different when it comes to holographic wills.
Why would it invalidate the entire will when it is the testator himself that inserted the disposition? The will is invalidated because it no longer complies with the formal requisites. The law says that the signature must be at the logical end. If you add some provisions after the signature, the signature would no longer be considered to be at the end. Although we may say that the reason is flimsy, the purpose for this is to protect the will against unauthorized insertions.
When the purpose is just for identification, you can identify it regardless of the location of the signature. Except the last page The marginal signatures are not required here because the last page usually contains all the signatures: testator’s signature, the witnesses’ signatures and the notary public’s signature. Just remember that each page contains all signatures. Illustration: In a will that has 3 pages. 1st and 2nd contain the testamentary dispositions and 3rd page has the attestation clause. The signatures in the 1st and 2nd page can be on the left, right, top or bottom. On the 3rd page, the testator signed after the testamentary provisions then the witnesses signed at the end of the attestation clause. Do they have to sign on the margin? No need because all signatures are already found in that page.
In a will that uses only 1 page, back to back — do you need marginal signatures for each page? In the front, yes. In the back, no need for the marginal signatures. In a will that only has 1 page — do you need marginal signatures? As discussed in Abangan vs. Abangan, there is no need for the marginal signatures because the signatures can already be found in therein after the testamentary dispositions (for the testator) and after the attestation clause (for the witnesses.) “The signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes the will. We hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.” In the case of Fernandez vs. De Dios, the last page contained only the attestation clause. Does that page require the signature of the testator ? Let’s say the 1st page was signed by the witnesses on the margin and by the testator after his testamentary dispositions. The 2nd page contained just the attestation clause signed by the witnesses. The will's validity was question on the ground that it was not signed by the testator on the margin. Is the will valid? The law says, the will must be signed on the margins on each and every page. The attestation clause is not the will of the testator — it is purely the act of the witnesses. So if there are no testamentary dispositions in that page, the SC said that the testator does not need to sign on the margin of the last page. Just remember that insofar as marginal signatures are concerned, each and every page of the will must be signed on the margins by the testator and the 3 instrumental witnesses.
What is the effect of one page not being signed at the margin? GR: it invalidates the entire will Let’s go to the case of Icasiano vs. Icasiano.
If you are executing a notarial will and would like to add to it, you may do so in another will or execute a codicil.
ICASIANO VS. ICASIANO 11 SCRA 422
Marginal Signatures The testator and the attesting witnesses must all sign in the margin — that’s what we call the marginal signatures.
Josefa Villacorte died on Sept 12, 1958. On June 2, 1956, she executed a last will and testament in duplicate at the house of her daughter Felisa, published before and attested by 3 instrumental witnesses: Attys Torres, Jr., Natividad, and Diy. The will was acknowledged by the testatrix and by the 3 instrumental witnesses before Atty Ong, the notary public. The will was prepared by Atty. Samson who was also present during the execution and signing of of the decedent’s last will and testament. The Gov. of Bulacan, Judge Icasiano and a little girl were also present at that t ime.
The law says “left margin,” but what if they signed on the right margin? It does not matter whether the margin is signed at the left, right, top or bottom. The purpose of
The Attys Torres and Natividad, Samson and the notary public testified as to the due execution of the will.
TESTATOR OR PERSON REQUESTED BY HIM TO SIGN AND THE CREDIBLE WITNESSES EACH AND EVERY PAGE OF THE WILL ON THE LEFT MARGIN EXCEPT THE LAST PAGE
the marginal signatures is just for identification. So, during the probate of the will, the witness can attest to the authenticity of the will by saying that he knows it is the same will since he signed it. That way, the witness can identify that the will being probated is the very same will that was attested to by the witnesses and subscribed by the testator.
Records show that the original of the will which was surrendered simultaneously with the filing of the petition consists of 5 pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty. Natividad on page 3. But the duplicate copy attached to the amended and
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supplemental petition is signed by the testatrix and the attesting witnesses in each and every page. A petition for the probate of the will of Josefa Villacorte and for the appointment of Celso Icasiano as executor was filed on October 2, 1958. Natividad, the daughter of the testatrix filed her opposition, she petitioned to have herself appointed as special administrator. Court issued an order appointing the Philippine Trust Company as special administrator. Enrique Icasano, the son of the testatrix adopted the opposition of his sister. Natividad and Enrique filed an opposition to the admission of the will as evidence. However, the court admitted the will and its duplicate to probate. Thus this appeal before the SC.
Issue: Is the will valid? Ruling: YES. 1. The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of 2 pages in the course of signing, is not per se sufficient to justify the denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause". 2. The failure of the witness, Natividad to sign page 3 was entirely through pure oversight shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time. 3. This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.
Note: That will wherein a page was not signed, was it the original? Yes. Were there other copies of the will? Yes. In this case, the SC said that the court should not penalize the testator for the negligence or inadvertence of one witness over whose actions the testator had no control. Especially that in this case, there were other copies of the will. The other copies contained all the signatures. Whatever omission was in the original copy, it was supplied by the other copies in the will. SC applied the principle of substantial compliance , thus allowing the will. It is not a fatal defect. I must emphasize that there are other copies of the will. The omission was supplied by the other copies of the will. It would be different if there are no copies or there is one and yet it still did not contain all the signatures.
In the case of Icasiano, that was an application of the principle of substantial compliance rule because even if one of the pages was not signed by the testator — it was found to be a mere inadvertence. Besides, there were other copies of the will where all of the signatures could be found.
ALL THE PAGES SHALL BE NUMBERED CORRELATIVELY IN LETTERS, PLACED IN THE UPPER PART OF EACH PAGE Each page must be numbered.
Purpose: (1) (2) (3) (4)
to guard against fraud to forestall any attempt to supress or substitute any of the pages to prevent any increase or decrease in the pages to afford means to detect the loss of any of the pages
The law says: numbered correlatively in letters If you are to follow the letter of the law: page one, page two etc. How about the paging is done by roman numerals, alphabet letters? There is no prohibition if the pages of the will are done like that. In Unson vs. Abella, the use of arabic numerals was allowed. In Aldaba vs. Roque, the letters a, b, c, was allowed. In Nayve vs. Mojal, the numbers 1, 2, 3 was allowed. Because you can still determine what is the 1st page, the 2nd page, and the 3rd page. How about if the numbering is partly in letters and partly in figures? That was accepted in the case of In Re Pilapil . 72 Phil 546 What if there is only 1 page, and it is not numbered? The SC said in Lopez vs. Liboro and Abangan vs. Abangan, if the will consists of only 1 page, and there is no numbering, it is understandable that it is the first page. You are guarded against the loss of tha pages because if page 1 is lost, everything is lost. That is not a fatal defect. In the case of Fernandez vs. Vergel De Dios, the document had 4 pages, however, only the 3 pages were numbered. The 4th page is not numbered. The attestation clause, however mentioned that the document/will consists of 3 pages excluding the page which had the attestation clause. With that statement in the attestation clause, it is evident that the last page was the 4th page. It was curable by reference to the attestation clause. You do not have to go outside the will to know how many pages really were contained in that will. In the same case, although the law says that the numbering should be found on the upper part, it can be written at the bottom or by indication — such as in the body itself, as long as it is indicated that it is the 1st page, the 2nd page, and so on. When the law says: letters, it is okay as long as they are consecutive.
THE WILL MUST BE ATTESTED AND SUBSCRIBED BY 3 OR MORE CREDIBLE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER Here, we have attestation and subscription. When the testator signs a will — that is subscription. The testator, aside from subscribing, witnesses the signing of the other witnesses.
What do the witnesses do? (1) They subscribe/sign in the attestation clause and in the margins (2) they attest the signing of the testator in the execution of the will as well as the signing of the other witnesses
Recap: The will must be signed on each and every page on the left margin. Although in many cases, the SC said that the location of the signature is not that material because the purpose of marginal signatures is only for identification. The will can still be identified even if the signatures appear on the left, right, top or bottom.
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Attestation
Subscription
it consists of witnessing the testator’s execution of the will in order to see and take note mentally that those things are done in accordance with the statutes on wills; and that the testator’s signature exists as a fact
it is the signing of the witnesses’ names upon the same paper for the sole purpose of identification of such paper of the will which was executed by the testator
it is a mental act; an act of the senses
it is a mechanical act; an act of the hand
all of them witness the act of each and every one of them
they sign on the will
Purpose: to render available proof of
Purpose : for identification; for the
the authenticity of the will and its due execution/ proof as to the facts which attended the execution of the will
witnesses to testify to the court that the will being presented for probate is the same will they signed
to attest the will is to know that it was published as such and to certify the facts required to constitue an actual or legal publication
to subcribe a paper published as a will, is only to write on the same paper the names of the witnesses for the sole purpose of identification
if you forget: attestation = you witness
subscription = when you write
The witnesses subscribe and witness. Take note that the act of subscription must be done in the presence of each and every one of them and of the testator.
importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally left the room. 2. The purpose of a statutory requirement that the witness sign in the presence of the testator is that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension. 3. In the matter of Bedell, it was held that it is sufficient if the witnesses are together for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which lay down the rule that the true test of vision
is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription. 4. The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the ground stated in the ruling appealed from.
Note:
When they attest, it should also be in the presence of the testator and of each and every one of them. They are also witnesses of each other.
What was the position of the witness? Did anyone see him sign?
Recall the Tests of Presence: (1) Test of vision — the witnesses saw the subscription and the attestation (2) Test of position — they did not see but they were in a position to see
The test used here was the test of position. They could have seen the act of signing had they just looked at the witness.
Let’s look at the case of Jaboneta vs. Gustilo
NERA VS. RIMANDO GR L-5971, Feb 27, 1911
JABONETA VS. GUSTILO GR 1641, January 19, 1906
Facts: CFI denied the probate of the last will and testament of Macario Jaboneta because one of the witnesses (Julio Javellana) did not attach his signature thereon in the presence of Isabelo Jena, another of the witnesses. Isabelo testified that he believed that Javellana signed because he held a pen in his hand although did not see him actually sign. The Court found that following facts: On December 26, 1901, Macario Jaboneta executed the will. Macario called Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses. They were all together in the room where Jaboneta was and were present when he signed the document. Isabelo signing as a witness, and in his presence and in the presence of the other 2 witnesses. Jalbuena signed as a witness in the presence of the testator, and in the presence of the other two persons who signed as witnesses. Isabelo being in a hurry to leave, took his hat and left the room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena.
Issue: Is the will valid? Ruling: THE WILL IS VALID. 1. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The
Facts: There was an opposition to the probate of the will on the ground that one of the subscribing witnesses was not in the small room where the will was executed but rather in the large room which was beside the small room. Between the two rooms hung a curtain which made it impossible for anyone to see what was happening inside the small room.
Issue: Whether the subscribing witness was present in the small room where the will was executed. Ruling: YES. 1. However, if the subscribing witness was in the other room, that would invalidate the will. The signatures would not comply with the requisite that the subscription be done in the presence of the witnesses. The curtain would definitely prevent the witnesses from seeing what the testator is doing 2. The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign , had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. 3. The position of the parties at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. 4. It is sufficient that at that moment of subscription that if they cast their eyes in the proper direction that they could see each other sign.
Note: If there is a curtain, it could not be in the range of vision. It could not pass the test of position because of the curtain. The will would not be valid if that is the case.
fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of NO
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What if it is a sliding door? If it is made out of glass, the will shall be valid. But if it is made out of wood, the effect would be like that of the curtain — they could not see.
MARAVILLA VS. MARAVILLA GR L-23225, Feb 27, 1971
Facts: The brother and sister of the testatrix, Digna Maravilla opposed the probate on the ground that the testatrix did not sign the will. The trial court did not allow the probate of the will after it found that instrumental witness (Aquilino Mansueto) did not actually see Digna sign it. Although he testified that Digna signed the will in the presence of the 3 witnesses and the lawyer. Mansueto also testified that he could not remember very well the other details because 14 years have elapsed and when he signed as a witness, he did not give it any importance (as at that time, he was worried that he’ll be arrested by the Japanese Kempetei). The trial court judge concluded that Mansueto did not actually see Digna sign the will based on the fact that while Mansueto positively identified his own signature ("I identify this as my signature") but not that of the testatrix, his five answers to the questions of counsel, in reference thereto, being "this must be the signature of Mrs. Digna Maravilla."
Issue: Did he witness the subscription by the testatrix as required by law? Ruling: THE TESTATRIX SIGNED THE WILL IN THE PRESENCE OF THE WITNESSES. 1. It was but natural that witness Mansueto should be positive about his own signature, since he was familiar with it. 2. He had to be less positive about Digna Maravilla’s signature since he could not be closely acquainted with the same. To demand that in identifying Digna’s signature Mansueto should display a positiveness equal to the certainty shown by him in recognizing his own, exceeds the bounds of the reasonable. 3. In Mansueto’s cross examination, he said: "I remember and (I) signed the will in the presence of all the witnesses and in the presence of attorney Villanueva". In the absence of an assurance that no one else was present, this assertion does not really contradict Mansueto’s testimony in chief that "I have read the entire document before I signed it in the presence of the other witnesses, Digna Maravilla and Attorney Villanueva". A will may be allowed even if some witnesses not remember
having attested it, if other evidence satisfactorily show due execution, and that failure of witness to identify his signature does not bar probate. 4. Mansueto, Hernaez, Bunaflor, and the testatrix, and lawyer, sat next to one another around one table when the will was signed is clearly established by the testimony of the lawyer and Mr. Maravilla. Such detail
proves beyond doubt that each one of the parties concerned did sign in the presence of all the others. It should be remembered, that the test is not whether a witness did see the signing of the will but whether he was in a position to see if he chose to do so.
The blind person is disqualified to become a witness because the testator can choose between many more qualified person, why choose the blind man? (3) Test of mental apprehension — (4) Test of available senses — only applicable to the testator and not the witnesses What if the witnesses signed ahead the testator? In Gabriel vs. Mateo, the question there is whether it should be the testator who should sign the will ahead of the witnesses. What happens if the other signed before the testator? The SC said that it does not matter that the witnesses signed ahead of the testator or after the testator for as long as the signing is sufficiently contemporaneous and made on one occasion and a part of a single transaction.
As long as all of you are there and in a position to see each other, it does not matter whether the witnesses signed ahead of the testator. What about the signing before the notary public? Should it be done on the same day the will was executed? No. With respect to the acknowledgement before the notary public, it is not even required that the notary public be there. What is important is they appeared before
the notary public — on the next day, or another day. It is not required that they all appear together, but it is required that they appear before the notary public. It is not required that the will be acknowledged in the presence of each and every one of them.
ATTESTATION CLAUSE To attest means to witness. It is a mental act of the senses. To attest is to declare that the witnesses actually saw the testator signed the will and that all the witnesses signed the will and also attested to the execution of the will. Even if they did not actually see but are in a position to see the signing, that is sufficient. Aside from the act of attesting, there should be an attestation clause itself. Attestation clause — is the written statement in the will as to what actually transpired during the execution of the will. It is that clause of an ordinary or notarial will wherein the witnesses certify that the instrument has been executed before them and the manner of the execution of the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. - not enough that the will was attested - aside from the fact of attestation, there should be an attestation clause which is written as part of the will
That is the attestation clause — it preserves in a permanent form the facts attendant during the execution of the will.
Purpose of the attestation clause: In the case of death, absence or failure of the Note: The test of position was complied with. The fact that they were seated in a round table, establishes the fact that they would be able to see each other sign.
What was the other test mentioned here? Test of available senses. How about the witnesses, can you apply the test of available senses? No. This kind of test is only applicable /allowed if it is the testator who is blind. So even if the testator did not see that the witnesses subscribed the will or attested to it, as long as that was done within the range of her other available senses. This test cannot be applied to the witnesses because a blind person is disqualified to become a wit ness. A blind person cannot be disqualified to be a testator. One cannot deprive a blind man’s privilege to make a will. The testator can neither delegate the making of his will or his testamentary power.
memory of the subscribing witnesses or other casualty the due execution will still be proved. - the death of the testator remains uncertain from the execution of the will; if he dies 50 years from now, the attestation clause serves as proof as to what transpired during the execution - this is just in case the witnesses forget what actually happened and just in case they die before the testator Strictly speaking, the attestation clause is not part of the will. That is why the marginal signature of the testator, is not needed in that page which solely contains the attestation clause. The law merely requires that the will must be signed on each and every page. Again, the attestation clause is not part of the will.
What do the subscribing witnesses attest in the the attestation clause? (1) They attest as to the genuineness of the signature of the testator (2) They attest to the due execution of the will as embodied in the attestation clause
What happens if there is no attestation clause?
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The absence of an attestation clause in a notarial will, makes such will void. It cannot be cured by the testimony of witnesses.
Statements which must be found in the attestation clause: (1) The number of pages used upon which the will is written !
! !
ex. “This will consists of 10 pages, including this page where the attestation clause is written.” that is aside from the fact that each and every page must be numbered Isn’t it a surplusage? No. This is to prevent the increase and decrease in the pages of the will.
AZUELA VS. CA GR 122880, April 12, 2006
Facts: Felix Azuela filed a petition for the probate of the notarial will of Eugenio Igsolo which was notarized on June 10, 1981. The will had 2 pages and was writen in Filipino. The attestation clause in the will is as follows: PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
Petitioner Azuela thus argues that under Art. 805 of the CC that the number of pages used in a notarial will be stated in the attestation clause is merely directory, rather than mandatory, and therefore susceptible to substantial compliance.
Issue: Is the will valid? Ruling: THE WILL IS INVALID. 1. THE ATTESTATION CLAUSE FAILS TO STATE THE NUMBER OF PAGES OF THE WILL. There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the testation clause. Yet, the blank was never filled in. Purpose of the numbering: The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages . If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty. Petitioner cites Singson vs. Florentino and Taboada vs. Hon. Rosal where the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. THE CASES CITED ARE NOT APPLICABLE TO THIS CASE. In Singson vs. Florentino, while the attestation clause does not state the number of sheets or pages upon which the will is written, the last part of the body of the will contains a statement that it is composed of 8 pages, which circumstance takes the case out of the rigid rule of construction and places it within the realm of similar cases where a broad and liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations. In Tabaoda vs. Rosal , it was discernible from the entire will that it is really composed of only 2 pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as Pagina dos comprises the attestation clause and the acknowledgment. The acknowledgment itself states that this Last Will and Testament consists of two pages including this page . In this case, the number of pages used in the will is not stated in any part of the Will.
SUBSTANTIAL COMPLIANCE RULE UNDER ART. 809 HAS A MORE LIBERAL CONSTRUCTION WITH REGARD TO THE INTERPRETATION OF THE LEGAL FORMALITIES REQUIRED IN THE EXECUTION OF THE ATTESTATION CLAUSE IN WILLS. JBL Reyes says: The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself : whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. Thus, the Court has ruled in Caneda ( wherein the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other, to wit: It must be stated that the rule, as it now stands, is those omissions which can be supplied by an examination of the will itself, without the need of restorting to extrinsic evidence, will not be fatal and correspondingly, would not obstruct the allowance to the probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one anothers presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.
THE FAILURE OF THE ATTESTATION CLAUSE TO STATE THE NUMBER OF PAGES ON WHICH THE WILL WAS WRITTEN REMAINS A FATAL FLAW, DESPITE ART. 809. 1. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in
this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. 2. Art. 809 should not deviate from the need to comply with the formal requirements as enumerated under Art. 805. Note: What was the contention with respect to the blank which should have contained the number of pages? That the will is void because of the failure of the attestation clause to state the number of pages in the will.
What was the defense of the proponents of the will? That the number is directory because it can be susceptible to the substantial compliance rule. If the omission is supplied by the will itself, then the will is valid pursuant to the substantial compliance rule. Because also, by placing the blank, there was an intention to fill it up.
What is the purpose of the need to state the number of the pages? To safeguard the will against possible interpolation or omission of one or some of its pages. To prevent any increase or decrease in the pages.
This cannot be cured under the principle of substantial compliance because the principle of substantial compliance applies only if the defect is curable by intrinsic evidence . There is nothing in the will which supplies as to the total number of pages. Thus, this still remains to be a fatal defect. How about in the case of Matter of Petition for the Probate of the will of Lopez?
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MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE LOPEZ VS. RICHARD LOPEZ GR 189984, November 12, 2012
Facts: Enrique Lopez died on June 21, 1999, leaving his wife (Wendy Lopez) and their 4 legitimate children (Petitioner Richard, and respondenents Diana Lopez, Marybeath de Leon and Victoria Tuazon) as compulsory heirs. Before Enrique’s death, he executed a Last Will and Testament on August 10, 1996 and constituted Richard as his executor and administrator.
omission in the attestation clause. Even if there was no statement in the attestation clause as to the total number of pages, the acknowledgement portion stated such fact. It is curable, under the principle of substantial compliance. This is different from the case of Lopez because in Lopez the acknowledgement portion still stated the wrong number of pages. The discrepancy was not cured.
TABOADA VS. ROSAL
Richard filed a petition for the probate of his father's last will. This was opposed by Marybeth and Victoria.
GR L-36033, November 5, 1982
Facts: The petition of probate of Dorotea Peres was filed before the CFI of RTC: disallowed the probate of the will for failure to comply with Art. 805 which requires a statement in the attestation clause of the number of pages used upon which the will was written. While Art. 809 of the CC requires mere substantial compliance of the form laid down in Art. 805, the rule only applies if the number of pages is reflected somewhere else in the will with no evidence aliunde or extrinsic evidence required. The acknolwedgement portionof the will states that the will consists of 7 pages, when the will consists of 8 pages.
Southern Leyte by Apolonio. The alleged last will was written in CebuanoVisayan dialect, and constists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the pages by the etstratrix alone and at the left hand margin by the 3 instrumental witnesses. The second page which contains the attestation clause and the acknowledgement is signed at the end of the attestation clause byt eh 3 attesting witnesses and at the left hand margin by the testa trix.
CA: The failure to state the number of pages of wthe wil in the attestation
CFI: denied the probate of the will of Dorotea Perez for want of a formality in
clause was fatal. It noted that while Article 809 of the Civil Code sanctions mere substantial compliance with the formal requirements set forth in Article 805 thereof, there was a total omission of such fact in the attestation clause. Moreover, while the acknowledgment of the will made mention of “7 pages including the page on which the ratification and acknowledgment are written,” the will had actually 8 pages including the acknowledgment portion thus, necessitating the presentation of evidence aliunde to explain the discrepancy.
its execution.
Issue: Is the will valid? Ruling: THE LAW IS CLEAR THAT THE ATTESTATION MUST STATE THE NUMBER OF PAGES USED UPON WHICH THE WILL IS WRITTEN. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages.
RICHARD FAILED TO SUBSTANTIALLY COMPLY WITH THE FORMAL REQUISITES. The statement in the Acknowledgement portion fo the subject last will and testament that it "consists of 7 pages including the page on which the ratification and acknowledgement are written" cannot be deemed substantial compliance. The will actually consists of 8 pages including its acknowledgement which discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde . JBL Reyes says: The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and evergy page; whether the subscribing witnesses are 3 or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.
According to Judge Rosal, for a notarial will to be valid, not only the testatrix, but also the subscribing witnesses must sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. Taboada maintains that Art. 805 does not make it a requirement that the signatures of the subscribing witnesses should be located at the end of the wig after the signature of the testatrix.
Issue: For the validity of a formal notarial will, does Art. 805 of the CC require that the testatrix and all the 3 instrumental attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Ruling: NO. ART. 805 PROVIDES THAT THE WILL MUST BE SUBSCRIBED OR SIGNED AT ITS END BY THE TESTATOR HIMSELF OR BY THE TESTATOR’S NAME WRITTEN BY ANOTHER PERSON IN HIS PRESENCE, AND BY HIS EXPRESS DIRECTION, AND ATTESTED AND SUBSCRIBED BY 3 OR MORE WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER. It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator.
THE WILL WAS SUBSCRIBED IN A MANNER WHICH FULLY SATISFIES THE PURPOSE OF THE IDENTIFICATION. 1.
2.
3.
Note: In this case, the attestation clause stated that the will consisted of 7 pages including that which embodied the ratification and acknowledgement. However, the will actually had 8 pages. The principle of substantial compliance cannot be applied because extrinsic evidence is needed to cure the defect. Nowhere in the will does it state that the total number of pages is 8. In the case of Taboada vs. Rosal , just in the case of Lopez, there was no statement in the attestation clause as to the total number of pages. That would have been a fatal defect because it does not comply with Art. 805.
However, in the acknowledgement portion, which stated that the will consisted of 2 pages including that page which contained the acknowledgement portion. That statement is sufficient to supply the
4.
5.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" Judge Pamatian even said that were it not for the defect in the place of the signatures of the witnesses, the testimony is sufficient to establish the validity of the will. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.
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***THE ATTESTATION CLAUSE WHICH FAILED TO STATE THE NUMBER OF
PAGES USED IN WRITING THE WILL IS NOT A FATAL DEFECT BECAUSE IT IS IS DISCERNIBLE FROM THE ENTIRE WIF THAT IT IS REALLY AND ACTUALLY COMPOSED OF ONLY 2 PAGES DULY SIGNED BY THE TESTATRIX AND HER INSTRUMENTAL WITNESSES. The first page contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page”. Ruling in Singson vs. Florentino and Icasiano vs. Icasiano was applied. (2) The fact that the testator signed the will and every page thereof or caused
some other person to write his name under his express direction !
!
! !
take note that while the signing of by another person in behalf of the testator and under his express direction, must be stated the law merely requires that it state that the will was signed under express direction and if it was omitted that it was done within his presence, it is acceptable so even if the fact that the proxy signed the will in the presence of the testator and such was not stated in the attestation clause, it is acceptable (of course kailangan under his express direction)
Going back to the case of Garcia vs. Lacuesta, where the testator Antelo Mercado’s name was written by the lawyer and Antelo affixed a cross beside his name. There was no evidence that he intended to be bound by the mark or whether that was his customary signature. That being the case, the cross was just disregarded. It is as if Antelo Mercado did not sign his will. Instead, the will was deemed to be signed by his lawyer under his express direction and in his presence — Such act is valid. However, this fact was not expressed in the attestation clause. Consequently, the failure to state that the signature was affixed by a third person under the express direction of the testator is a defect which is fatal. The will was disallowed for probate. (3) The signing of the testator or by the person requested by him was in the
presence of the instrumental witnesses. (4) That the instrumental witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. ! !
the omission that it was signed/witnessed …. is a fatal defect it must be stated that the witnessess witnessed and signed the will…
In the case of Abada vs. Abaja, it is not necessary that you really have to copy verbatim the letter of the law. In that case, the attestation clause said “Subscribed and professed by the testator Alipio Abada as his last will and testatment. In our presence, the testator having also signed it in our presence on the left margin of each and every one of t he pages of the same.” With respect to the witnesses it stated: “In his witness, everyone of us also signed in our presence and of the testator.” The SC said: precision of language in the drafting in an attestation clause is desirable. However it is not imperative that a parrot like copy of the words of the statute be made. It is sufficient if from the language employed it can be reasonable be deduced that the attestation clause fulfills what the law expects of it. Since it could be gathered that the testator signed in the presence of the witnesses and the witnesses also witnessed and signed in the presence of the testator and each and every one of them, it was valid. Although I suggest that if you draft a will, you just copy Art. 805. Kung magkamali ka, it’s very fatal. Kawawa yung mga voluntary heirs. In the case of Azuela vs. CA, as to the issue regarding the attestation clause:
AZUELA VS. CA GR 122880, April 12, 2006 The will was opposed on the ground that the 3 named witnesses affixed their signature on the left-hand margin of both pages of the will but not at the bottom of the attestation clause and the decedent’s signature did not appear on the 2nd page of the will and that it was not properly acknowledged. Is the will valid? No.
THE ATTESTATION CLAUSE WAS NOT SIGNED BY THE INSTRUMENTAL WITNESSES. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro vs. Cagro is the prevailing rule where the signatures of the witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. While 3 Justices considered the signature requirement substantially complied with, a majority of 6 ruled that the attestation clase had not been duly signed, rendering the will fatally defective. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The signatures on the left -hand margin is not substantial compliance — only in compliance with the rule that the will should be signed on the left- hand margin of all its pages, not with the attestation rule. Art. 805 segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be attested and subscribed by [the instrumental witnesses]. The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. Would be different if the witnesses signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.
The witnesses failed to sign both pages of the will on the left margin, her only signature appearing at the so-called logical end of the will on its first page.
Note: Was the principle of substantial compliance a pplied? No. Why do the signatures have to be at the bottom of the attestation clause? (1) The signatures at the bottom of the attestation clause signified that the witnesses avow and own the statements made above their signatures. (2) To foreclose the possibility of inserting an attestation clause on a subsequent occasion when in the first place, there was none.
If you do not put your signatures at the bottom of the attestation clause and merely just on the margins, it would be easy to append a belated attestation clause when there was really none in the beginning. The will here is not valid.
What is the purpose of the signatures in the margins? For identification. That purpose cannot serve the same purpose of the signatures being placed below the attestation clause.
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What if the attestation clause is signed at the bottom but there are no more signatures in the margins? The signatures in the margins are merely for identification — the location of which does not matter since the purpose would be served as long as the signatures are there. However, the witnesses’ signatures pertaining to the attestation clause should be located at the bottom. This is to avow the statements made in the attestation clause. Those signatures at the bottom can serve the purpose of identification. The presence of the signatures at the bottom could be used to identify the will. Thus it is better if the signatures are placed under the attestation clause than anywhere else. Signatures placed at the bottom can satisfy both
purposes for establishing that the witnesses are referring to the statements contained in the attestation clause itself as well as the purposes of identification — will would still be valid even if there are no more signatures in the margins. This is a reiteration of the case of Cagro vs. Cagro.
Language used in the Attestation Clause When it comes to the testator, he should know the language used in the will. It cannot just be explained or interpreted to him. The testator does not have to know the language used in the attestation clause. Strictly speaking, the attestation clause is not a part of the will -- rather, it is an act of the witnesses. With respect to the witnesses themselves, it is preferrable that they know the language used in the attestation clause. But an interpretation or an explanation of the contents of the attestation clause to the witnesses could be sufficient.
testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.
BALONAN VS. ABELLANA 109 Phil. 359
FACTS: The will of Anacleta Abellana is sought to be probated. The will was written in Spanish language and consists of 2 typewritten pages. The fist page was signed by Juan Bello and under his name appears typewritten “for Anacleta Abellana.” On the 2nd page, appears the signatures of the 3 instrumental witnesses, at the bottom of which appears the signature of the notary public. The witnesses also signed the 1st page on the margins. 2nd page contained the signature of Juan Bello under whose name “for Anacleta Abellana”
ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana..., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed? RULING: YES. It is unimportant whether the person who writes the name of the testatrix signs his own or not. As long as it clearly appears that the name of the testatrix was sined at her express direction. (Barut vs. Cabacungan, Caluya vs. Domingo, Garcia vs. Lacuesta)
ABAYA VS. ZALAMERO 10 Phil. 357
Let’s now go to Art. 806
ABANGAN VS. ABANGAN 40 Phil 476 This involves the probate of the will of Ana Abangan. The will consists of 2 sheets. 1st page contained all the disposition of the testatrix, duly signed at the bottom by Montalban in the name and under the direction of the testatrix and by 3 witnesses. The 2nd page contains only the attestation clause duly signed at the bottom by the 3 instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.
Issue: Is the will valid? Ruling: PURPOSE OF REQUIRING EVERY SHEET OF THE WILL BE SIGNED AT THE MARGIN BY TESTATOR AND 3 WITNESSES IN THE PRESENCE OF EACH OTHER: To avoid substitution of any of the sheets, thereby changing the testator’s dispositions.
THE SIGNATURE OF THE TESTATOR AND THE WITNESSES AT THE BOTTOM OF THE 1ST PAGE IS SUFFICIENT. By doing so, the subscription has already satisfied the purpose of the marginal signatures which isfor identification. To require the witnesses and the testator to sign again in the margins would be useless. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security. As for the 2nd page, the testator and the witnesses need not sign at the margins because the page containing the attestation clause is not part of the will. The testator is not required to sign. The signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will. Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the
FACTS: This involves the probat eof the will of Juan Zalamero. The will was written in Tagalog. The opposition alleged that the will had not been executed and signed in accordance with law. The petition for probate It was denied. It is shown by evidence and by the will itself that the testator requested one of the witnesses to the will to write the surname of Juan Zalamero, and that he put a cross between them and a note stating that what had been written before the name and the surname of Juan Zalamero, with the cross placed at the foot thereof was his testament and directed by him — in the presence of the 3 witnesses.
ISSUE: Is the will valid? RULING: YES. The will clearly stated (1) the reason why it was not signed by the testator himself (2) the request he made to the witness Zaguirre — a repetition thereof was not necessary. The fact need not be stated again: that this same witness, upon being requested, wrote with his own hand the name and surname of the testator, who afterwards placed the cross between them, all of which was written immediately after the said name and surname of the testator and the cross made by him, and the same was subscribed by the three witnesses in the manner provided by law. The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with, namely, that three witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that they heard his statement that the said instrument, written and drawn up under his direction, contained his last will; that they saw and witnessed when, at the express request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote at the foot of the will the name and surname of Juan Zalamero, and when the latter put the cross between his written name and surname, each of the witnesses subscribing it at the time and in the presence of each other.
GABRIEL VS. MATEO 51 Phil. 216
FACTS: This involves the probate of Florencia Mateo. The will was composed of 2 sheets. It was signed by the testatrix and 3 witnesses on the left margin of each of the sheets, by the testatrix alone at the bottom, and by the 3 witnesses after the attesttation clause. The testatrix from girlhood knew how to sign her name and did so with her right hand; but as the right side of her body later became paralyzed, she learned to sign with her left hand and for many years thereafter, up to the time of her death, she used to sign with that hand. Opponents allege that Florencia Mateo did not sign this will. (1) the direction of the signature of testator was upwards to avoid writing on the signature of Felicisimo Gabriel
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(2) it was alleged that witnesses signed before the testatrix (3) different kinds of ink was used by the testatrix in her signature
IT IS NOT STRANGE THAT THE 2 WITNESSES DID NOT SEE THE TESTATRIX. In order
ISSUE: Is the will valid? RULING: YES. At all events, even admitting that there is a certain question as to
to be able to see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room where the will was prepared by Attorney Almario, but they did not do so.
whether the attesting witnesses signed before or after the testatrix, or whether or not they signed with the same pen and ink, these are details of such trivial importance, considering that this will was signed two years before the date on which these witnesses gave their testimony, that it is not proper to set aside the will for this reason alone.
THE TESTIMONY OF THE WITNESSES ARE NOT SUFFICIENT TO OVERTHROW OR DISCREDIT THE TESTIMONY OF THE PETITIONER-APPELLANT OR THAT OF ATTY. ALMARIO AND THE 3 INSTRUMENTAL WITNESSS. The physician of the deceased and accountant Ventura Loreto who are 2 disinterested witnesses , testified to the effect
PAYAD VS. TOLENTINO GR 42258, September 5, 1936
Facts: Leoncia Tolentino’s will was prepared by Atty. Almario on Sept 7, 1933. Therein she bequeathed her property to Payad as compensation for his diligent and faithful services rendered to her. The will was written by Atty. Almario in his own handwriting, and was written in Spanish because he had been instructed to do so by the testatrix. It was read to her in the presence of Pedro Cruz, Jose Cruz and Perfecto Ona and other persons who were then pesent. Leoncio approved all the contents of the document and requested Atty. Almario to write her name where she had to sign by means of her thumbmark (because she did not have enough strength to hold a pen.) Atty. Almario wrote Leoncia’s name on 3 pages composing the will and Leoncia placed her thumbmark between her name and surname. Atty. Almario signed the three pages of the will in the presence of the testatrix and also of Pedro Cruz, Jose Cruz and Perfecto Ona who signed it. Aquilina Tolentino contends that the probate of the will of Leoncia Tolentino should be allowed on the ff. grounds: 1) testatrix did not personally place her thumbmark on her alleged will; 2) testatrix did not request Atty. Almario to write her name and surname on the spaces of the will where she should place her thumbmarks; 3) the will was not signed by testatrix on the date indicated 4) testatrix never made the qill 5) on the date the will was excuted, the testatrix was no longer in a physical or mental condition to make it. Rodriguez and Quisonia testified that they had not seen Atty. Almario in the morning of Sept 7, 1933 in the house of Leoncia. The first time they saw him was on Sept 8 when Leoncia was already dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the house. Both also testified that on the 7th, the testatrixx was already so weak that she could not move and that she could hardly be understoof because she could no longer enunciate. Thus making it absolutely impossible for her to make any will. De Leon , another witness testified that Leoncia could not even open her eyes or make herself understood.
that 3 or 4 days before the death of Leoncia, they visited her in her home and found her not so ill as to be unable to move or hold a conversation. They stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that she could still move in spite of her weakness. Aquilina filed a motion for new trial because (1) before the deceased died, she left a letter signed by herself, placed in a stamped envelope addressed to Yangco with instructions not to open it until she dies; (2) therein the deceased transfer all her property to Yangco. Thus the deceased could not have made the will in question. Tht she did not hae to inform the court of the newly discovered evidence because the judgement of the lower court was favorable to her.
MOTION FOR NEW TRIAL IS DENIED. 1. The new evidence is not of the nature that would warrant a new trial. 1. The affidavit of Atty. Cortes is neither material nor important — it is simply hearsay or at most corroborative evidence
2. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the letter in question before it, and no attempt was ever made to present a copy thereof. 3. The affidavit of Atty. Viola or testimoney he may give pursuant thereto is not more competent that Atty. Cortes, becaue granting that he was called by Victorio Payad to help Leoncia to make her will on Sept 5, the deceased was almost unconcscious, unintelligible and could not speak, does not necessarily mean that on teh day she made her will, 7th, she had not recovered consciousness 4. if the oppositor decided not to call Atty. Viola to testify as a witness in her favor, it might have been because she considered his testimony unimportant and unnecessary. 2. At the present stage of the proceedings, it is already too late to clim that what Atty. viola may not testify is a newly discovered evidence.
CAGRO VS. CAGRO GR L-5826, April 29, 1953
Facts: Pelagio Cagro, appellant insists that the will of Vicente Cagro is fatally defective because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
Issue: Is the will valid? Ruling: THE WILL IS VOID. The position of the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.
Issue: Is the will valid? Ruling:
THE SIGNATURES OF THE 3 WITNESSES ON THE LEFT-HAND MARGIN DOES NOT CONFORM SUBSTANTIALLY TO THE LAW. The signatures in the left-hand margin are
Motion for Reconsideration denied.
in compliance with the legal mandate that the will be signed on the left hand margin of all its pages. If an attestation clause not signed by the 3 witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
LEONCIA TOLENTINO, NOTWITHSTANDING HER ADVANCED AGE OF 92, WAS IN GOOD HEALTH UNTIL SEPT 1, 1933. She only slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her still suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.
NAYVE VS. MOJAL 47 Phil 152
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IN RE ESTATE OF SAGUINSIN 41 Phil. 875
AVERA VS. GARCIA 42 Phil. 145
ESTATE OF TAMPOY VS. ALBERASTINE February 25, 1960
notarized, whether a jurat or acknowledgement, become public documents — So, they can be secured by anyone who knows about the doc number, page number — they can go to the Clerk of Court and se cure a copy. However, wills are personal to the testator. Wills are confidential. Even under the Rules of Court, wills are an exception to the rule that all documents acknowledged before a notary public are public documents. Wills, even acknowledged before a notary public do not become public documents. That is why notary publics are not required (although they can) to retain a copy of a will or to file it with the clerk of court.
What is an acknowledgement? That is discussed in the case of Azuela. ALDABA VS. ROQUE
AZUELA VS. CA
43 Phil. 378
TENAFRANCIA VS. ABAJA 87 Phil 139
LEYNEZ VS. LEYNEZ 68 Phil. 745
JALLORES VS. INTERINO GR L-42463
UY COQUE VS. SIOCA <>
SAÑO VS. QUINTANA <>
GUMBAN VS. GORECHO 50 Phil 30
QUINTO VS. MO RATA <>
GR 122880, April 12, 2006
Ruling: A NOTARIAL WILL THAT IS NOT ACKNOWLEDGED BEFORE A NOTARY PUBLIC BY THE TESTATOR AND THE WITNESSES IS FATALLY DEFECTIVE, EV EN IF IT IS SUBSCRIBED AND SWORN TO BEFORE A NOTARY PUBLIC. 1. The importance of the rule under Art. 806 is emphasized as it is segregated from the other requirements under Art. 805.
2. Here, the notary public, Bautista wrote Nilagdaan ko at ninotario ko ngayong ika-10 ng Hunyo, 1980 dito sa Lungsod ng Maynila. This is cannot be construed as an acknowledgement. An acknowledgement is the act of one who has executed a deed in acknowledging before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her free act and deed. 3. The sentence affixed of the notary public could be a jurat 1, however, even if it was such, the will would still remain invalid, as the express requirement of Art. 806 is that the will be acknowledged, and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed . Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/ she had designated in the will.
Note: CANEDA VS. CA 222 SCRA 781
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.
ACKNOWLEDGEMENT BEFORE A NOTARY PUBLIC This is another requirement. Although the law says every will, this only pertains to notarial wills. Holographic wills do not need an acknowledgement. Under the Notarial Law, if you notarize a document. It is required that you retain 2 copies. One copy for your file and another will be submitted to the clerk of court. The clerk of court will keep your document for a certain number of years, and eventually he will have to forward these documents to the archives office. The purpose here is to make these documents, public documents. Documents
The tenor of the acknowledegment should be something like this: "Before me, 11th day of August 2017, in the City of Davao, personally appeared Juan dela Cruz who executed to me his driver's license required to secure a goverment ID a notary public. Known to be and known to be the same person who appear and he acknowledged to me that the document was his own free and voluntarily act and will.” So the notary public really coerces them into admitting that this was done by them voluntarily. It is enough that is under oath, it has to be acknowledged. In this case, there was nothing which states anything about the witnesses and the testator having executed the document freely and voluntarily.
Can a notary public be an attesting witness? As we discussed before in the case of Azuela, the purpose of the acknowledgement is to be sure that the document was executed voluntarily by the testator with respect to the will and the witnesses with respect to the attestation clause.
What if one of the witnesses is also the notary public before whom the will is acknowledged? We have the case of Cruz vs. Villasor. The only question here is whether the will was valid. The SC said that the notary public before whom the will was acknowledged cannot be one of the attesting witnesses. Why? (1) Because it would be a physical impossibility
1 Jurat is that part of an affidavit where the notary certifies that before him/her the document was subscribed and sworn to by the executor.
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when you acknowledge a document before the notary public, you avow that the document was voluntarily executed by the testator - a notary public cannot possibly avow a document before himself and force himself that he voluntarily made the document — it is absurd (2) Because of conflict of interest - The function of the notary public is to guard against any illegal or immoral arrangements and this function will be defeated if he was one of the attesting witnesses. - If the notary public was be one of the attesting witnesses, he would be interested in sustaining the validity of the will — because it directly involves himself and the validity of his own act. - Another function of the notary public is to ensure that there was no coercion and that the will was regularly and validly executed. -
What is the consequence if one of the witnesses is the notary public? If there are only 3 witnesses, and one of them is the notary public = WILL IS VOID - since the notary public is disqualified, there are only 2 witnesses left which is short of t he requisite number of witnesses. (3 is required) If there are 4 witnesses, and one of them is the notary public = WILL IS VALID. - even if we exclude the presence of the notary public as a witness, there would still be 3 witnesses - here we just disregard the notary public as one of the witnesses, but he can still validly acknowledge it
Remember: The fact that the notary public before whom the will was acknowledged is also one of the attesting witnesses only affects his qualification as a witness. It does not affect his qualification as a notary public.
Is the notary public, before whom the will was acknowledged, required to know the contents of the will? GR: There is no such requirement. As long as he ensures that the testator voluntarily executed the will and the witnesses also voluntarily executed the attestation clause. It is not required that he should read the will or know its contents. E: In case of blind testators which we will discuss in Art. 808. Under the LGC, it is required that documents acknowledged before notary publics should bear a documentary stamp.
Will the failure to affix a documentary stamp in the acknowledgement of the will render it void? The SC ruled in Gabucan vs. Judge Manta, such failure will not affect the validity of the will.
GABUCAN VS. JUDGE MANTA 21 SCRA 1056, January 28, 1980
Facts: The petition for the probate of the notarial will of Rogaciano Gabucan was dismissed by the CFI on the groung that it did not bear the 30-centavo documentary stamp thus not admissible in evidence. It cited Sec. 238 of the Tax Code, now Section 250 of the 1977 Tax Code, to wit: Sec. 238. Effect of failure to stamp taxable document . — An instrument, document, or paper which is required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed t hereto and cancelled. According to it, the the notarial acknowledgement of the said will is subject to the 30centavo documentary stamp tax fixed in Sec. 225 of the Tax Code, now section 237 of the 1977 Tax Code. Judge Manta did not reconsider even if there was a documentary stamp attached to the original of the will.
Issue: Is the will valid if it had no documentary stamp affixed to it? Ruling: YES. CFI ERRED IN DISMISSING THE CASE . it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del
Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)
In the case of Enchavez vs. Dozen,
ECHAVEZ VS. DOZEN CONSTRUCTION AND DEVT CORP AND THE ROD OF CEBU CITY GR 192916, Oct 11, 2010
Facts: Vicente Enchavez donated Lot No. 1956-A and Lot No. 1959 to Manuel Enchavez through a Deed of Donation Mortis Causa. The donation was accepted by Manuel. However, in March 1986, Vicente executed a Contract to Sell over the same lots in favor fo Dozen Construction and Decelopment Corporation. In October 1986, they executed two Deeds of Absolute Sale over the same properties. November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s nephew filed a petition for the settlement of Vicente's intestate estate. On the other hand, Manuel filed a petition to approve Vicente's donation mortis causa in his favor and an action to annul the contracts of sale.
RTC: dismissed the petition. The execution of a Contract to Sell in favor of Dozen Corp, after Vicente donated the lots to Manuel was an equivocal act that revoked the donation. CA: affirmed. Deed of donation in favor of Manuel being one in mortis causa, must have complied with the formalities for the validity of wills. Hence, since it did not contain an attestation clause, it was void. Manuel claims that CA should have applied the rule on substantial compliance in the construction of a will to Vicente's donation mortis causa. The strict construction of a will was not warranted in the absence of any indication of bad faith, fraud, or substitution in the execution of the Deed of Donation mortis causa. The CA ignored the Acknowledgement portion of the deed of odonation which contains the import and purpose of the attestation clause required in the execution of wills. BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who executed the foregoing instrument of Deed of Donartion Mortis Causa before the Notary Public and in the presence of the foregoing three (3) witnesses who signed this instrument before and in the presence of each other and of the Notary Public and all of them acknowledge to me that the same is their voluntary act and deed
Issue: Is the Deed of Donation void? Ruling: CA ruling affirmed. Void. A DONATION MORTIS CAUSA MUST COMPLY WITH THE FORMALITIES PRESCRIBED BY LAW FOR THE VALIDITY OF WILLS, OTHERWISE THE DONTATION IS VOID AND WOULD PRODUCE NO EFFECT. Articles 805 (which refers to the attestation clause) AND 806 (refers to the acknowledgement) must have been applied. T he purported attestation clause embodied in the Acknowledgement portion does not contain the number of pages on which the deed was written. The exception in Singson vs. Florentino and Taboada vs. Hon Rosal , cannot be applied to this case. In those cases, the Court found that although the attestation clause failed to state the number of pages upon which the will was written, the number of pages was stated in one portion of the will. This is not the factual situation in the present case.
EVEN IF THE ACKNOWLEDGED CLAUSE EMBODIED WH AT THE ATTESTATION CLAUSE REQUIRES, AN ATTESTATION CLAUSE AND AN ACKNOWLEDGEMENT CANNOT BE MERGED IN ONE STATEMENT. Since the requirements of attestation and cknowledgement are embodied in 2 separate provisions of the CC (Art. 805 which refers to the attestation and 806 which refers to the acknowledgement clause) indicates that the law contemplates 2 distinct acts that serve different purposes. An acknowledgement is made by one executing a deed, declaring beofre a competent offier or court that the deed or act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution. Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before the notary public, this is not the avowal the law requires from the
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instrumental witnesses to the execution of a decedents will. An attestation must state all the details the third paragraph of Article 805 requires. In the absence of the required avowal by the witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement of the Deed of Donation Mortis Causa.
Note: Obviously there was no attestation but there was an acknowlegement.
What was their allegation with respect to what was contained in that acknowledgement? That even if there was no attestation clause, it was included already in the acknowledgement portion. SC said that you cannot merge the attestation clause and the acknowledgement portion. They are intended to be distinct requirements thus embodied in separate provisions. Art. 805 refers to the attestation, Art. 806 refers to the acknowledgement. Even if we assume that they can be merged — there was actually no statement at all in the acknowledgement portion which can be considered as sufficient compliance to the statements required by law. (i.e. it should state the total number of pages in which the will is written, t hat the testator signed the will in the presence of the witnesses, that the witnesses signed the will and attested the will in the presence of the testator and each and every one of them.) But still, SC said that you cannot merge the attestation clause and the acknowledgement portion. As we already discussed before, if is it intended to be a disposition mortis causa, it has to be in the form of a will — it cannot just be in a form of a deed of donation.
GARCIA VS. GATCHALIAN GR L-20357, November 25, 1967
Facts: This involves the probate of the will of Pedro Reyes Garcia. He died at age 71, leaving no forced heirs. Petitioner Garcia filed a petition for probate wherein he was instituted as the sole heir. This was opposed by Gatchalian, Camins, Cosca, Tubog, Talanays on the ground that the will was procured by fraud and that the deceased did not intend the instrument signed by him to be as his will; and that deceased was physically and mentally incapable of making a will at the time of the execution. It was denied by the CFI of Rizal on the ground that the attesting witnesses did not acknowledge the will before the notary public. An examination of the document shows that the same was acknowledged before the notary public by the testator but not by the instrumental witnesses.
Issue: Whether the will is void because the witnesses did not acknowledge it before a notary public. Ruling: THE WILL IS VOID. We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated .
JAVELLANA VS. LEDESMA GR L-7179, June 30,1955
Facts: This for the probate of the will and codicil of Apolinaria Ledesma which was written in the Visayan dialect, witnessed by Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap and executed on March 30, 1950 and May 20, 1952. It was opposed on the following grounds: that the testatrix did not have testamentary capacity and that the dispositions were procured through undue influence. Nevertheless, the CFI admitted for probate the documents. Now, Matea Ledesma who is the sister, appealed before the SC, insisting that thedocuments were not exeucted n conformity with law. She argues that the CFI erred in refusing credence to her witnesses Pagerogao and Allado, Cook and driver,
respectively of the deceased. Both testified that on March 30, 1950, they saw and heard Vicente Yap informing the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers.
Issue: Is the will valid? Ruling: YES. THE WILL IS EXECUTED IN FRONT OF THE WITNESSES. 1. The Court did not give credence to the testimony of the yaya and the driver because it was contradictory to the testimony of the instrumental witnesses, Yap, Tabiana and Montinola who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent at General Hudges St., Iloilo City, On March 30, 1950. It is highly unlikely and contrary to usage that the witnesses would insist that Apolinaria should leave her house to execute a will, when all 3 witnesses could have easily went to the testatrix's house. 2. There are fatal flaws in the yaya and driver's testimonies: (a) the crossexamination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (b) the yaya was positive that Yap brought the will and the deceased alone signed it precisely on March 30, 1950 but she could remember no other date (c) Allado claimed to have heard what allegedly transpired between Yap and Apolinaria from the kithcen of the house, that was later proved to have been separated from the deceased's quarters and standing on a much lower level, so that the conversations in the main building could not be distinctly heard from the kithcen. — this was sought to be cured by saying that he was upstairs but this such correction is unavailing, since it was plainly induced by 2 highly leading questions from the counsel.
THE DISCREPANCIES IN THE TESTIMONIES OF THE INSTRUMENTAL WITNESSES CONCERNING THE PRESENCE OR ABSENCE OF AURELIO MONTINOLA AT THE SIGNING OF THE TESTAMENT AND THE CODICIL ARE NOT MATERIAL AND ARE LARGELY IMAGINARY. Since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.
WHETHER OR NOT THE NOTARY SIGNED THE CERTIFICATION OF ACKNOLWEDGEMENT IN THE PRESENCE OF THE TESTATRIX AND THE WITNESSES DOES NOT AFFECT THE VALIDITY OF THE CODICIL. Unlike the Code of 1889 (Art. 699,) the new CC does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. T he subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.
Note: The acknowledgement could be done on another day.
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CRUZ VS. VILLASOR
CONEJOS VS. YVES
GR L-32213 November 26, 1973
11 C.A. Rep. 945
Facts: Manuel Lugay filed a petition for the probate of the will of the deceased, Valente Cruz. This was opposed by the Agapita Cruz, the surviving spouse of the deceased. She alleged that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.
Issue: Whether the will is valid. Ruling: THE WILL IS NOT VALID. 1. THE NOTARY PUBLIC BEFORE WHOM THE WILL WAS ACKNOWLEDGED CANNOT BE CONSIDERED AS THE THIRD INSTRUMENTAL WITNESS SINCE HE CANNOT ACKNOWLEDGE BEFORE HIMSELF HIS HAVING SIGNED THE WILL. To acknowledge means to avow; to own as genuine, to assent, to admit and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.
2. THE FUNCTION OF A NOTARY PUBLIC WOULD BE DEFEATED IF THE NOTARY PUBLIC WERE ONE OF THE ATTESTING INSTRUMENTAL WITNESSES. His function as a notary public is, among others, to guard against any illegal or immoral arrangement. For them he would be interested sustaining the validity of the will as it directly inolves him and the validity of his own act. It would place him in an inconsitent position and the very purpose of the acknowledgement, which is to minimize fraud would be thwarted. (there is a conflict of interest)
EFFECT: TO ALLOW THE NOTARY PUBLIC TO ACT AS 3RD WITNESS OR ONE OF THE ATTESTING AND ACKNOWLEDGING WITNESSES, WOULD HAVE THE EFFECT OF HAVING ONLY 2 WITNESSES TO THE WILL WHICH WOULD BE IN CONTRAVENTION OF THE PROVIONS OF ART. 805 AND 806 WHICH REQUIRES THAT THE TESTATOR and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.
GONZALES VS. CA May 25, 1979
Facts: Private Respondent Lutgarda Santiago (nieces) filed a petition for the probate of the will of Isabel Gabriel who designated Petitioner Rizalina Gabrial Gonzales as a the principal beneficiary and executrix. The testatrix died as a widow and without issue, at the age of 85. The will was typewritten in Tagalog, which appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found on page four, reads as follows: PATUNAY NG MGA SAKSI Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito. At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page. The will provides that all expenses of the burial will be paid from her estate (wanted to be buried in the Catholic Cemetery of Navotas); all of her obligations be paid; legacies in specified amounts be given to her sister (Praxides) brother (Santiago) and her nephews and nieces (Benjamin, Slaud, Rizalina, Victoria, Ester, Andres, and Evangeline, Rudrardo, Andrea, Marcial, Numancia, Verena. To Lutgarda Santiago, , Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned.
IF THERE ARE 3 WITNESSES AND ONE OF THEM IS THE NOTARY PUBLIC, THE WILL IS VOID = SHORT OF THE REQUIISTE NUMBER WHICH IS 3.
It was opposed by Rizalina on the following gounds: (1) not genuine (2) not executed and attested as required by law (3) at the time of the alleged execution of the purported will the decedent lacked testimentary capacity due to old age and sickness (4) the will was procured through undue and improper pressure and influence by Lutgarda.
If there are 4 witnesses and one of them is the notary public, we should just disregard the notary public. Thus, the will is valid.
CFI: That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law;
VOID:
VALID:
That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961.
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CA: It allowed the probated. The will was signed and executed by the deceased Isabel Gabrial on APril 15, 1961 in the presence of 3 attesting witnesses: Orobia, Celso Gimpaya, Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law. Rizalina opposes the probte on the groudn that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other. She contends that he will is void because there is no proof that the 3 instumental witnesses were credible witnesses. That the requirement in Art. 806 that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of witnesses.
Issue: Whether the will was executed and attested as required by law. Ruling: ART. 820 PROVIDES THE QUALIFICATONS OF A WITNESS TO THE EXECUTION OF WILLS WHILE ART. 821 SETS FORTH THE DISQUALIFICATION FROM BEING A WITNESSES TO A WILL. There is no mandatory requirement that the witnesses testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the
record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. THE MEANING OF ‘CREDIBLE’ IS NOT THE SAME AS THE ONE USED IN THE NATURALIZATION LAW. In the latter, it is mandatory that the petition for naturalization must be supported by 2 character witnesses who must prove their good standing in the community, reputation for trustworthiness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended). In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testatment and affirm the formalities attendant to the execution. Court found each of the 3 instumental witnesses to be competent and credible — supported by the evidence found by the CA which the SC is bound to accept. Lutgarda also has not alleged that the instrumental witnesses are disqualifie, much less that it is shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805. She says that competency is different from credibility. That there is no evidence to show that the instrumental witnesses are credible in themselves.
It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and employee much less the
humble or financial position of a person do not disqualify him to be a competent testamentary witness. As to the contention that the qualifications of the 3 or more credible witnesses mentioned in Art. 805 are those mentioned in Art. 820. Thus in Suntay vs. Suntay the Court held that “granting that a will was duly executed and that it was in existence at the time of, and not revoked before the death of the testator, still the provisions of the lost will must be clearly and distinctly proved by at least 2 credible witnesses. Credible witnesses mean competent witnesses and not those who testify to facts from or upon hearsay.
THE COMPETENCY OF A PERSON TO BE AN INSTRUMENTAL WITNESS TO A WILL IS DETERMINED BY THE STATUTE, THAT IS ART. 820 AND 821. HIS CREDIBILITY DEPEDNS ON THE APPRECIATION OF HIS TESTIMONY THAT ARISES FROM THE BELIEF AND CONCLUSION OF THE COURT THAT THE SAID WITNESS IT TELLING THE TRUTH. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, IT IS NOT MANDATORY THAT EVIDENCE
BE FIRST ESTABLISHED ON RECORD THAT THE WITNESSES HAVE A GOOD STANDING IN THE COMMUNITY OR THAT THEY ARE HONEST AND UPRIGHT OR REPUTED TO BE TRUSTWORTHY AND RELIABLE, FOR A PERSON IS PRESUMED TO BE SUCH UNLESS THE CONTRARY IS ESTABLISHED OTHERWISE. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore,
reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good standing in the community and reputed to be trustworthy and reliable.
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. Here is another requirement if the testator is deaf, or deaf-mute. There is a reading required, if he can read. If he cannot read, then he must designate 2 persons to read the contents of the will to him. The law says : the testator shall designate 2 persons. Although it can be recommended to him as long as the testator admits that these 2 persons read the contents of the will to him. There is also no requirement that these 2 persons should also be the attesting witnesses. There is no requirement that such be stated in the attestation clause. This can be proved by extrinsic evidence.
Art. 808. If the testator is blind, the will shall be read to him twice; one, by one of the subscribing witnesses and again, by the notary public before whom the will is acknowledged. Art. 808 talks of the situation where the testator is blind. We already discussed before that a person who is blind can be a testator. We can still comply with the test of presence if the signing was made in the range of the available senses.
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But a blind person cannot be a witness. They are disqualified under Art. 821.
What do we mean by a blind person under Art. 808? Should the person be in total darkness/ cannot see at all? What is blindness contemplated by law?
SC was convinced that Art. 808 was not complied with. If you are disposing of your properties through a will, you should make it at least presentable. That is your last will and testatment.
GARCIA VS. VASQUEZ
ALVARADO VS. GAVIOLA
32 SCRA 490
226 SCRA 317, September 14, 1993
Testatrix: del Rosario At the time of her death: 90 years old. Contention of the oppositors: The requirement under Art. 808 was not complied with. At the time of the tesatrix’s death, her eyesight was so poor and defective. She could not have read her own will. Her opthalmologist testified that the testatrix was farsighted and that she can only see objects from a distance.
Facts: On November 5, 1977, the 79-year old Brigido Alvarado executed a notarial will
Is she blind? THE RECORD IS CONVINCING THAT THE TESTATRIX COULD NOT HAVE PHYSICALLY READ OR UNDERSTOOD THE ALLEGED TESTAMENT. IT SHOULD NOT BE ADMITTED TO PROBATE. SHE IS A BLIND TESTATOR AND HER WILL SHOULD HAVE BEEN EXECUTED IN ACCORDANCE WITH ART. 808. 1. The testimony of Doña Gliceria’s opthalmologist, who treated the deceased, therefore have first hand knowledge of the actual condition of her eyestight, f ully establish the fact that notwithstanding the operation and removal of the
cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. (a) the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument “silently". 2. The will was made without regard for her defective eyesight (a) the attestation clause and acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever (b) the word "and" had to be written by the symbol" &", apparently to save on space 3. The will was made with haste. (a) typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, ! It is difficult to understand that so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so.
ART. 808 PROVIDES THAT THE WILL SHALL BE READ TO HIM TWICE: ONCE BY THE SUBSCRIBING WITNESSES AND AGAIN, BY THE NOTARY PUBLIC BEFORE WHOM THE WILL WAS ACKNOWLEDGED. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. - There is nothing in the records which show that the requirements have been complied with.
Note: What other evidence were considered by the SC in saying that the reading requirement was not complied with? (Please see #2 and #3 in the digest) How many pages were there in the will? 1 page with everything crammed in there. In this case, even if the testator was still able to see, she was considered as a blind testator for the reason that she could not read. Thus, Article 808 was applied.
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. December 9, 1977 — Brigido's holographic will was admitted to probate on December 9, 1977. December 29, 1977 — a codicil entitled “Kasulatan ng Pagabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nob 5, 1977 ni Brigido Alvarado” was executed changing some dispostitions in the will to generate cash for the testator’s eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was
Gaviola who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. January 3, 1979 — a petition for probate of the notarial will and codicil was filed upon testator’s death by Gaviola as executor
It is not disputed that the vision of Brigido on both eyes was only of “counting fingers at 3 feet” by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on December 14, 1977. CONTENTION OF THE OPPOSITION: at the time of the execution of the “Huling Habilin” and the codicil, Brigido was already “blind” within the meaning of Art. 808. The non-compliance therewith, made the will invalid.
CFI: Probate was granted. Alvarado contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation.
CA: Despite the medical testimony, it held that the testator could still read on that day and the codicil were executed but chose not to do so because of “poor eyesight.” Since the the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.
Issue: Does Brigido qualify as a “blind” testator under Art. 808? Ruling: YES. ART. 808 IS APPLICABLE TO BRIGIDO. 1. ALTHOUGH BRIGIDO WAS ABLE TO READ AT THE TIME HIS WILL AND CODICIL WERE PREAPRED, THE FACT REMAINS THAT BRIGIDO DID NOT DO SO BECAUSE OF HIS “POOR” “DEFECTIVE” OR “BLURRED” VISION MAKING IT NECESSARY FOR GAVIOLA TO READ IT FOR HIM. What is the rational behind the requirement of reading the will to the testator if he is blind or illiterate? The purpose is to make the provisions thereof known
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to him, so that he may be able to object if they are not in accordance with his wishes. 2. ART. 808 APPLIES NOT ONLY TO BLIND TESTATORS BUT ALSO TO THOSE FOR ONE REASON OR ANOTHER ARE INCAPABLE OF READING THEIR WILLS. Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.
ART. 808 REQUIRES: If the testator is blind or is incapable of reading the will by himself, 1) the will shall be read twice: (a) once by one of the instrumental witnesses and (b) again by the notary public before whom the will was acknowledged
ART. 808 WAS NOT STRICTLY FOLLOWED. It was the lawyer (Gaviola) who drafted the 8-paged will and the 5 paged codicil who read the same to Brigido, and read them only once, not twice.
PROBATE IS ALLOWED. THERE WAS SUBSTANTIAL COMPLIANCE. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, and when taken into account, may only defeat the testator’s will. 1. Galviado read the testator’s will and codicil aloud in the presence of the testator, his 3 instrumental witnesses and the notary public 2. Only after the testator affirmed that the contends corresponded with his instructions did the testator and the instrumental witnesses signed the documents 3. there is no evidence that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 4. It was not only Atty. Gaviola who read the documents on Nov 5 and Dec 29. The notary public and the three instrumental witnesses also read the will and codicil, albeit silently. The notary public (Atty. de la Peña) and Dr. Evidente (one of the 3 instrumental witnesses and testator’s physician) asked the testator whether the contents of the document were of his own free will. Brigido said yes. With four
persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. Note: Was Art. 808 compled with? Was the spirit of the law served? Although the will was executed in accordance with the letter of Art. 808, it was not even the notary public who read the will — it was the lawyer. The others just read silently with their own copies. Still, the SC said that although there should be strict compliance, formal imperfections should be brushed aside when they do not affect its purpose and when taken into account, may only defeat the testator’s will.
SUBSTANTIAL COMPLIANCE RULE
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. Art. 809 is the rule on substantial compliance or liberal interpretation.
What defects are excused? 1) Defects and imperfections in the form of attestation 2) Defects and imperfections in the language used in the attestation
For Art. 809 to apply, we have the following requisites: (1) The defects and imperfections refer to the form of the attestation clause or in the language used therein (2) There is no bad faith, forgery or fraud or undue or improper pressure and influence (3) The will was executed and attested in substantial compliance with all the requirements (4) The fact of such execution and attestation is proved
If you read the letter of Art. 809, can you determine when to apply the principle of substantial compliance and when not to apply? It is difficult if you just read Art. 809. We have discussed cases before where SC applied this principle and in those cases, they have always cited Justice JBL Reyes: If the rule is so broad, that no matter how imperfect the attestation clause happens to be, the same could be cured by evidence aliunde or extrinsic evidence, the attestation could be of no value in protecting against fraud or defective execution. Hence the rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. Meaning: Not just any defect can be cured under the principle of substantial compliance. What can be cured are only those defects which can be cured by intrinsic evidence — or that which is found in the will itself (or even in the attestation clause or the acknowledgement portion). If you would still allow extrinsic evidence or evidence aliunde to cure a defect, then almost any defect can be cured. There would be no sense in prescribing the formalities since you can just cure it with the use of extrinsic evidence. So, only those defects which can be cured by intrinsic evidence can be allowed under the principle of substantial compliance. Like in the case of Abada vs. Abaja, it was mentioned that there was a defect in the attestation clause because the number of witnesses were not mentioned. The SC applied the substantial compliance rule because just by counting the number of signatures in the will, you will know that there are 3 witnesses. That defect can be cured by intrinsic evidence. In Taboada vs. Rosal , the attestation clause did not state the number of pages used in the will. But reference to the acknowledgement would show that the will actually consisted of 3 pages. It was mentioned therein that the document constisted of 2 pages including that page which contained the acknowledgement. That omission in the attestation clause, is supplied by a statement in the acknowledgement portion. We do not go out of the will.
If the defect would already require extrinsic evidence, then the defect can no longer be cured. Example: Attestation clause failed to state that the witnesses attested and signed the will in the presence of the testator Attestation clause says: “The witnesses and the testator signed the will and each and every page thereof.”
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There is nothing which states that in the presence of the testator and of each and everyone of them. Although the attesting witnesses can testify that it was really and signed in their presence, but this is not allowed — that would be introducing extrinsic evidence. This defect cannot be cured under the substantial compliance rule. Just take note of the other cases we discussed.
ALVARADO VS. GAVIOLA 226 SCRA 317, September 14, 1993 As to the contention that there is substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have be en disallowed.
THE PROBATE IS ALLOWED. THE SPIRIT BEHIND THE LAW WAS SERVED THOUGH THE LETTER WAS NOT. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which ,when taken into account, may only defeat the testator’s will. 1. Galviado read the testator’s will and codicil aloud in the presence of the testator, his 3 instrumental witnesses and the notary public 2. Only after the testator affirmed that the contents corresponded with his instructions did the testator and the instrumental witnesses signed the documents 3. there is no evidnce that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 4. It was not only Atty. Gaviola who read the documents on Nov 5 and Dec 29. The notary public and the three instrumental witnesses also read the will and codicil, albeit silently. The notary public (Atty. de la Peña) and Dr. Evidente (one of the 3 instrumental witnesses and testator’s physician) asked the testator whether the contents of the document were of his own free will. Brigido said yes. With four
persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. THUS THE COURT SAID IN ABANGAN VS. ABANGAN. The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will . So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied).
BRIGIDO ALVARADO HAD EXPRESSED HIS LAST WISHES IN CLEAR AND UNMISTAKABLE TERMS IN HIS “HULING HABILIN” AND THE CODICIL ATTACHED THERETO. We are unwilling to cast these aside from the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i .e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.
CANEDA VS. CA 222 SCRA 781
Facts: December 5, 1978 — Mateo Caballero, a widower, without any children and already in the twilight years of his life, executed a will and testament at his residence in Talisay, Cebu before 3 attesting witnesses: Labuca, Cabando and Toregosa. The testator was assisted by his lawyer: Atty. Lumontad and a notary public, Atty. Manigos in the preparation of the last will. It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. A petition for probate was field by Mateo himself before the CFI. He died on May 29, 1980 even before his probate hearing was done by reason of many postponements. Benoni Cabrera, one of the legatees in the will, sought his appointment as special administrator of the testator’s estate, the estimated value of which was P24,000, and he was appointed. Petitioners herein, claimed to be the nephews and nieces of Mateo Caballero. They filed a second petition entitled “in the Matter of the Intestate Estate of Mateo Caballero”. The intestate proceedings and the petition for probate were consolidated by the court. Caneda opposed to the petition for probate on the ground that on the alleged date of its execution, the testator was already in the poor state of health and couldn’t have possibly executed the same. Labuca, one of the attesting witness and the notary public, Atty. Filoteo Manigos testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then.
CFI: the will in question was the last will and testament of Mateo Caballero. Caneda asserted that the will is null and void because its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence and of one another.
CA: Attestation clause substantially complies with Art. 805. What appears in the attestation clause which the oppositors claim to be defective is : ”we do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us That is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by the witnesses in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805, the phrase as formulated is in substantial compliance with the requirement of the law.”
Issue: Whether the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Art. 805 in relation to Art. 809 of the Civil Code. Ruling:
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NOTARIAL WILL
HOLOGRAPHIC WILL CAGRO VS. CAGRO
Art. 805
Art. 810
must be acknowledged before a notary public by a testator and the attesting witness
one that is entirely written, dated and signed by the testator himself; requires no attestation by witnesses
226 SCRA 317
Facts: Pelagio Cagro, appellant insists that the will of Vicente Cagro is fatally
both should be in writing and must have been executed in a language or dialect known to the testator where the testator is deaf or mute, Art. 807 requires that he must personally read the will, if able to do so. Otherwise must designate 2 persons who would read the will and communicate its contents to him in a practicable manner If the testator is blind, the will should be read to him twice: once by anyone of the witnesses thereto, and again before the notary public.
ATTESTATION CLAUSE NEED NOT BE WRITTEN IN A LA NGUAGE OR DIALECT KNOWN TO THE TESTATOR SINCE IT DOES NOT FORM PART OF THE TESTAMENTARY DISPOSITION. The language use in the attestation clause likewise does not need to be known to the attesting witnesses. Art. 805 merely requires that in such a case, the attestation clause shall be interpreted to the witnesses.
ATTESTATION CLAUSE refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.
defective because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. Issue: Is the will valid? Ruling: THE WILL IS VOID. The position of the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.
THE SIGNATURES OF THE 3 WITNESSES ON THE LEFT-HAND MARGIN DOES NOT CONFORM SUBSTANTIALLY TO THE LAW. The signatures in the left-hand margin are in compliance with the legal mandate that the will be signed on the left hand margin of all its pages. If an attestation clause not signed by the 3 witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
Note: Cagro vs. Cagro is the prevailing rule — where the signatures of the witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. While 3 Justices considered the signature requirement substantially complied with, a majority of 6 ruled that the attestation clase had not been duly signed, rendering the will fatally defective. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negates their participation. The signatures on the left -hand margin is not substantial compliance — only in compliance with the rule that the will should be signed on the left- hand margin of all its pages, not with the attestation rule.
WHAT SHOULD THE ATTESTATION CLAUSE CONTAIN: (1) the number of pages used
TABOADA VS. ROSAL
upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of t he testator and of one another. Purpose: safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages, whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses.
November 5, 1983
RULE OF SUBSTANTIAL COMPLIANCE WAS NOT APPLIED IN THIS CASE. The will
The petition of probate of Dorotea Peres was filed before the CFI of Southern Leyte by Apolonio. The alleged last will was written in Debuano-Visayan dialect, and constists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the pages by the testratrix alone and at the left hand margin by the 3 instrumental witnesses. The second page which contains the attestation clause and the acknowledgement is signed at the end of the attestation clause by the 3 attesting witnesses and at the left hand margin by the testatrix.
CFI: denied the probate of the will of Dorotea Perez for want of a formality in its execution.
totally omitted the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. There is no implication that the attesting witness actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another. Since the proof of the acts required to have been performed by the attesting witnesses can be supplied only be extrinsic evidence, the rule on substantial compliance cannot be applied.
According to Judge Rosal, for a notarial will to be valid, not only the testatrix, but also the subscribing witnesses must sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.
SUBSTANTIAL COMPLIANCE RULE: Omissions that can be supplied by an
Issue: Is the will valid? Ruling: YES ART. 805 PROVIDES THAT THE WILL MUST BE SUBSCRIBED OR SIGNED AT ITS END BY THE TESTATOR HIMSELF or by the testator’s name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
examination of the will itself, without the need of resorting to extrinsic evidence will not be fatal. Those omission which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately of the will itself.
Taboada maintains that Art. 805 does not make it a requirement that the signatures of the subscribing witnesses should be located at the end of the will after the signature of the testatrix.
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WILL MUST BE LIBERALLY CONSTRUED.
WHILE PERFECTION IN THE DRAFTING OF A WILL MAY BE DESIRABLE, UNSUBSTANTIAL DEPARTURE FROM THE USUAL FORMS SHOULD BE IGNORED, ESPECIALLY WHERE THE AUTHENTICITY OF THE WILL IS NOT ASSAILED. 1. The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103). 2. Judge Pamatian stated in his questioned order that were not for t he defect in the place of signatures of the witnesss, he would have found the testimony sufficient to establish the validity of the will 3. the objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be t he same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.
ATTESTATION CLAUSE FAILED TO STATE THE NUMBER OF PAGES. BUT HERE THE WILL IS ONLY COMPOSED OF ONLY 2 PAGES. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page”. CASES WHERE THE WILL WAS LIBERA LLY CONSTRUED: SINGSON VS. FLORENTINO — The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied by a consideration or examination of the will itself. But here the situation is different . While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations. ICASIANO VS. ICASIANO — Impossibility of substitution of this page is assured not
only of the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
VILLAFLOR VS. TOBIAS 53 Phil 714
Facts: This case involves the probate of the will of Gregoria Villaflor which was filed by Jose Villaflor, one of the testamentary heirs of the deceased. This was opposed by Pilar Villaflor, Deogracias Tobias, and several others whose names do not appear in the record, upon the ff. grounds: (1) That it was not signed by the alleged testatrix personally though she was able to do so at the time of the execution of the document; (2) that said testatrix did not authorize any one to sign the alleged will in her name; (3) that both before and after the execution of the document, Gregoria Villaflor signed various documents by thumb marks; (4) that although it is true that the testatrix requested that the will be prepared, she nevertheless refused to sign it because it was contrary to her desires and instructions; (5) that subsequent to the date upon which the alleged will was
executed, Gregoria Villaflor on several occasions stated that it was not her testament; (6) that the alleged will was not executed or signed in conformity of the law. The probate was disallowed by the trial court on the ff. grounds: (1) sufficiently proved the Lazo, the person who is alleged to have signed the name of the testatrix in her behalf, and by her express direction, subscribed the name and surname of testatrix was done without one of the attesting witnesses (2) When Soliven (attesting witness) signed the same, the other attesting witness, Tacderas was not present (3) The will which was typewritten on 8 sheets, one separated from the others; that the attestation clause was written on a separate sheet, marked page 9, when said clause could not have been written totally or partially on page 8, since one-half
of this latter page is blank. (4) Villaflor did not sign nor subscribed to the alleged will — on the day of its execution, the testatrix was, in good and sound health, although she could not walk on her own feet inasmuch as she was then suffering from rheumatism or partial paralysis of the lower extremities, and that on July 27, and May 25, 1923, the testatrix Gregoria Villaflor used to mark with her thumb, if she did not sign, the document she executed, as it was proven during the trials by Exhibit 1 and 2 of the opponents, the doubt and suspicion which this court entertains in regard to the authenticity of the will in question, becomes a certainty that said testament is false.
Issue: Is there substantial compliance? Ruling: YES. Will is admitted to probate. THE WILL WAS EXECUTED IN STRICT COMPLIANCE WITH THE PROVISIONS OF THE EXECUTION OF WILLS. 1. The testatrix's name was signed by one Claro Lazo, a clerk in the office of municipal treasurer of Santo Domingo, and the attesting witnesses were Vicente Tacderas, municipal president, Rufino D. Soliven, chief of police, and Mariano Pizarro, municipal treasurer, all of the town of Santo Domingo. The finding of the court below that the witness Soliven was not present when Claro Lazo signed the name of testatrix and when Vicente Tacderas signed as witness, is based on the fact that, in testifying in this case, Claro Lazo upon being asked to enumerate the names of the persons present at the time of signing of the document, omitted the name of Soliven. But it appears from the transcript of the testimony that he
afterwards corrected his original statement and testified that Soliven, as well as the other witnesses to the will, was present while all of the signatures were fixed. This is in harmony with the testimony of all of the instrumental witnesses and is undoubtfully true; there is, indeed, nothing st range or unusual in a mistake such as that made by Lazo. It may be noted that it is not disputed that the lawyer Gallardo was present during the whole proceeding and as he appears to have possessed full knowledge of the formal requirements for the execution of the will, it is highly improbable that he would have allowed the will in question to be signed without the presence of a testatrix and of all the witnesses. 2. THAT THE ATTESTATION CLAUSE OF THE WILL IS WRITTEN ON A SEPARATE PAGE AND NOT ON THE LAST PAGE IS NOT OF IMPORTANCE. It was explained that if the clause had been written on the eight page of the will in direction continuation of the body thereof, there would have been sufficient space on that page for the signatures of the witnesses to the clause. It is also to be observed that all of the pages, including that upon which the attestation clause is written, bear the signatures of all the witnesses and that there is no question whatever as to the genuineness of said signatures. 3. THAT THE NAME OF THE TESTATRIX WAS WRITTEN BY ANOTHER PERSON, AND
THAT SHE DID NOT SIGN BY THUMB MARK IS BECAUSE OF THE ATTEMPT OF THE LAWYER, GALLARDO, TO COMPLY STRICTLY WITH THE FF. CLAUSE IN THE SPANISH TEXT OF SEC. 618 OF THE CODE OF CIVIL PROCEDURE. “Excepto en el caso a que se refiere el articulo anterior, no sera valido para la transmision de bienes muebles e inmuebles, ni los gravara y afectara, ningun testamento a menos que este escrito y que haya sido firmado por el testador, o que lleve el nombre de este, escrito por otra persona en su presencia y bajo su direccion expresa, . . . ." The making of a finger mark is not "escribir" and it may be noted that Gallardo apparently is a good Spanish scholar, that it does not appear that he knows the English language;. and that he therefore probably used the Spanish text of the Code. 4. THE TESTIMONIES TO THE EFFECT THAT THE EXECUTION OF THE WILL WAS
NOT MADE IN CONFORMITY WITH HER INSTRUCTIONS AND IT WAS NOT HER WILL IS NOT GIVEN ANY WEIGHT/ GIVEN LITTLE IMPORTANCE. The testatrix was an old woman and might have well made the statements by way of justification in conversation with persons who considered themselves wronged by the provisions of her will, but expressions of that kind cannot, of course, work the revocation of the document. The testatrix lived for over two years after the will
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was made and had ample opportunity to make another will if she was dissatisfied with the first.
CANEDA VS. CA 222 SCRA 784
Ruling: It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit: Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.
HOLOGRAPHIC WILLS
Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Art. 810 talks about holographic wills. This is the other kind of will which is recognized in the Philippines. Art. 804 also applies to a holographic will: (1) must be in writing; (2) it must be in a language or dialect known to the test ator. Moreover,
REQUISITES: 1. MUST BE ENTIRELY HANDWRITTEN BY THE HANDS OF THE TESTATOR 2. MUST BE ENTIRELY DATED BY THE HANDS OF THE TESTATOR 3. MUST BE SIGNED BY THE HANDS OF THE TESTATOR
It does not require attestation clause, acknowledgement, witnesses. Right now you can execute your holographic wills, as long as you comply with these requirements.
ADVANTAGES OF HOLOGRAPHIC WILLS: (1) easier to make (2) easier to revise — can make insertions, alterations unlike in notarial wills (3) easier to keep secret — it is only the testator who knows the contents of his will and that he made a will
DISADVANTAGES OF H OLOGRAPHIC WILLS: (1) it is easier to forge (2) it is easier to misunderstand -- because the testator may be faulty in expressing his last wishes (3) there is no guarantee that no fraud, force , intimidation, mistake or undue influence attended the execution of the will (4) there is no guarantee as to the soundness of mind of the testator when he made the will — no one can testify
There was a point in time that holographic wills were not allowed. If you relate this to Art. 795, when you say holographic will, it is a matter of form. It refers to the extrinsic validity of the will. Under Art. 795, the extrinsic validity shall be governed by the law in force at the time of the execution of the will. What if you made a holographic will at the time when the law did not recognize it? Even if the testator died at the time where holographic wills were already allowed, still it is not valid.
1) SPANISH CIVIL CODE 2) CODE OF CIVIL PROCEDURE / ACT NO. 190 — August 7, 1901 !
only notarial wills were recognized thereby repealing holographic wills
3) NEW CIVIL CODE — August 30, 1950 !
holographic wills were revived.
From August 7, 1901 until August 29, 1950, holographic wills were not recgonized. If there appears to be a holographic will executed within that period, it is not valid.
REQUIREMENTS OF HOLOGRAPHIC WILLS 1. MUST BE ENTIRELY HANDWRITTEN BY THE HANDS OF THE TESTATOR ! ! !
!
!
EVERYTHING has to be written by the test ator purpose : to guarantee against all falsifications or alterations in the will it would be perhaps be easier to forge the signature of the testator; but it would be more difficult to forge the entire handwriting of the testator cannot delegate the mechanical act of drafting the will to a third person (unlike in the notarial wills, one can delegate the drafting of the will) if partly handwritten and typewritten = void If the attestation clause is typewritten while the entire will was handwritten. Is the will valid? If the handwritten portion complies with all the requisites of a holographic will, the attestation clause is merely a surplusage. An attestation clause is not required in holographic wills. The atte station can be disregarded.
2. MUST BE DATED BY THE HANDS OF THE TESTATOR - the date must be written in the hands of the testator - The date is very important in holographic wills. This is unlike in notarial wills, it is not because the date can be proved by the presentation of extrinsic evidence. - Reasons for the importance of the date in holographic wills: (1) to provide against contingencies as that of 2 competing wills executed on the same day or different dates For example you have 2 wills: 1st instituted A to the entire estate of the testator. 2nd instituted B to the entire estate of the testator. Since you cannot reconcile the 2 wills, reference must be made to the date. Under the law on revocation, the later will is deemed to have revoked the earlier one. The later will is the latest expression of the testator’s wishes. In holographic wills, only the testator knows about when he made the will. That's why the date is very important. (2) to determine the mental condition of the testator at the time he made the will In the case of an insane person who has lucid intervals. If the will is made during a lucid interval, it is valid. The only way to know whether it was made during a lucid interval, is by looking at the date. (3) to determine whether the will is extrinsically valid Again, there is a time when holographic wills are not allowed. From August 7, 1901 to August 29, 1950 - How should a date be written? Ideally it should state the month, day, and the year: August 14, 2017. It can also be made by implication: Christmas of 2013, Valentines Day of 2014,
In the case of Roxas vs. De Jesus, the date here was written as February 19, 1961. Is this date valid? Yes. It was allowed. If you examine the facts of the case, the contingencies which are guarded against by requiring the date, are not present. Here, there is only one will. There is no question of revocation. The mental condition of the testator was not questioned. This will was made during the effectivity of the NCC because it was already in 1961. The SC allowed the probate of the will.
HISTORY OF HOLOGRAPHIC WILLS
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ROXAS VS. DE JESUS, JR. January 28, 1985
Facts: After the death of Spouses Andres and Bibiana Roxas de Jesus, a special proceeding was filed by Petitioner Simeon Roxas, the brother of the deceased Bibiana entitled “In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus. He was appointed as the administraror. After he was issued letters of administration, he delivered a document purporting to be the holographic will of Bibiana. The Judge set the hearing for the probate. Simeon testitfied that he found a notebook belonging to Bibiana and that on pages
21, 22, 23 and 24, hereof, a letter-will addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my will which I want to be respected although it is not written by a lawyer. … - corroborated by the testimonies of Pedro de Jesus and Manuel who also said that the letter dated “FEB/61” is the holographic Will of their deceased mother, Bibiana; both recognized the handwriting of their mother and positively identified her signature; they also testified that their mother understood English, which was used in the holographic will. Respondent Henson, another compulsory heir filed a opposition to probate, on the ground that it was not executed in accordance with law (b) it was executed through force, intimidation, and /or under duress, undue influence, and improper pressure and (c) the alleged testatrix acted by mistkae and /or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.
PURPOSE OF THE SOLEMNITIES: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. (Abangan vs. Abangan)
THERE IS NO EVIDENCE OF BAD FAITH AND FRAUD IN ITS EXECUTION NOR WAS THERE ANY SUBSTITUTION OF WILLS AND TESTAMENTS. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.
AS A GENERAL RULE, THE “DATE” IN A HOLOGRAPHIC WILL SHOULD INCLUDE THE DAY, MONTH AND YEAR OF ITS EXECUTION. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.
The probate of the will was allowed. Then disallowed the probate of the holographic will on the ground that the word “dated’ has generally been held to include the month, day and year.
Contention of Simeon Roxas: While Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Will the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail.
Contension of Respondent Henson: submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.
Issue: Whether the date “FEB./61” appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with Art. 810. Ruling: Probate must be allowed. THE PREVAILING POLICY IS TO REQUIRE THE SATISFACTION OF THE LEGAL REQUIREMENTS IN ORDER TO GUARD AGAINST FRAUD AND BAD FAITH BUT WITHOUT UNNECESSARY CURTAILMENT OF TESTAMENTARY PRIVILEGE (Icasiano vs. Icasiano.) If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,.. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745)
IF THE TESTATOR ATTEMPTS TO COMPLY WITH ALL THE REQUISITES ALTHOUGH COMPLIANCE IS NOT LITERAL, IT IS SUFFICIENT IF THE OBJECTIVE OR PURPOSE SOUGHT TO BE ACCOMPLISHED BY SUCH REQUISITE IS ACTUALLY ATTAINED BY THE FORM FOLLOWED BY THE TESTATOR.
LABRADOR VS. CA 180 SCRA 120
Facts: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will. Sagrado Labrador (now substituted by his heirs Enrica and Cristobal) filed a petition for the probate of the alleged holographic will of Melecio Labrador. This was opposed by Gaudencio Labrador on the ground that the will has been extinguished or revoked by implication of the law. Because on September 30, 1971, before Melecio’s death, he executed a Deed of Absolute Sale, in favor of Jesus and Gaudencio (oppositors) for P5000, where the subject property (fish pond) is also covered by the holographic will. Sagrado filed a petition for the annulment of the Deed of Sale.
RTC: allowed the probate of the holographic will and declared null and void the Deed of Absolute Sale. The holographic will written in Ilocano translated into English provides in the Second Page: And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father.
Issue: Whether the holographic will of Labrador is dated. Ruling: THE WILL IS DATED IN THE HAND OF THE TESTATOR HIMSELF IN PERFECT COMPLIANCE WITH ART. 810. It is worthy to note the first paragraph of the second page of the holographic will contains the date: March 17, 1968 which was the date when the holographic will was made.
- The law does not specify a particular location where the date should be placed in the will - The only requirements are that the date be in the will itself and executed in the hand of the t estator. These requirements are present in the subject will.
Respondent Gaudencio and Jose claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other
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compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.”
to no other form, and may be made in or out of the Philippines, and need not be witnessed.
THE INTENTION TO SHOW MARCH 17, 1968 AS THE DATE OF EXECUTION OF THE WILL IS PLAIN FROM THE TENOR OF THE SUCCEEDING WORDS OF THE PARAGRAPH. The will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will . The act of partitioning and
1. 2.
the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate. As to the redemption of the fish pond: When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000.
Will is allowed for probate.
Note: As to the location of the date, it can be at the top, bottom, in the body of the will or even in the signature. There is no particular location required.
3. MUST BE SIGNED BY THE HANDS OF THE TESTATOR ! must be the full signature of the testator ! If his name is Juan de la Cruz, then his signature must say Juan de la Cruz -- that’s the ideal signature, the full signature ! What if the testator signs “J.D. Cruz”? As long as it is his full customary signature, that will still be allowed. ! What if the testator customarily uses his initials? No, even if it is his customary signature. It is very easy to forge the initials. In holographic wills, we are very cautious when it comes to forgery. ! Full signature should be affixed. By way of exception, you can affix not the entire name, as long as it is the customary signature. Initials are really not allowed. ! How about a smiling face? It is not allowed. ! Thumbmark? Not allowed because it is not his handwriting. ! What if the testator has no hands? Can he execute a holographic will? What if he uses his mouth/feet? As long as it is the writing of the testator, it is allowed. ! Time of signing: can be done after the execution of the holographic will ! Location of the signature: when we go to Art. 812, it is appears that it should be located at the end of the will.
In Seangio vs. Reyes, the testator actually executed a document disinheriting one of his compulsory heirs. We already discussed before that a will which contains only the disinheritance of an heir is valid because it is a kind of disposition — indirect way of disposing the property. The principle here with respect to holographic wills is that because holographic wills are usually prepared by one who is not learned in the law, these wills should be construed more liberally than those drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. Even if captioned as Kasulatan ng Pag-Aalis ng Mana , it was intended by Segundo to be his last testamentary act. As long as it was executed by him in accordance with law in the form of a holographic will. It could be given effect, it could be probated.
Segundo’s document conforms to the formalities of a holographic will prescribed by law. it is written dated, signed by the hand of Segundo himself there is an intent to dispose mortis causa — while it does not make an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless is an act of disposition in itself. The disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo.
IT IS A FUNDAMENTAL PRINCIPLE THAT THE INTENT OR THE WILL OF THE TESTATOR, EXPRESSED IN THE FORM AND WITHIN THE LIMITS PRESCRIBED BY LAW, MUST BE RECOGNIZED AS THE SUPREME LAW IN SUCCESSION. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effedct.
HOLOGRAPHIC WILLS SHOULD BE CONSTRUED MORE LIBERALLY THAN THE ONES DRAWN BY AN EXPERT, TAKING INTO ACCOUNT THE CIRCUMSTANCES SURROUNDING THE EXECUTION OF THE INSTRUMENT AND THE INTENTION OF THE TESTATOR. n this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, the disinheritance cannot be given effect.
THE COMPULSORY HEIRS IN THE DIRECT LINE WERE NOT PRETERITED IN THE WILL. It was Segundo’s last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo.
Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. Under Art. 811, there is a discussion on the probate of holographic wills. What is probate? It is a special proceeding intended to determine the genuineness and due execution of the will. If a person leaves a will, whether notarial or holographic, it is not automatic that the properties of the testator would be transferred pursuant to that will. Not like in sales that the agreement or transfer is immediately effective upon delivery/registration in the RoD. In wills — it does not follow that once the testator signs the will and has it notarized, that the heirs can cause the transfer. It will have to pass through probate proceeding.
MATTERS DETERMINED DURING PROBATE: a) b) c) d)
whether the testator voluntarily executed his will, whether it is the very same will executed by the testator, whether he was of sound mind when he made the will and whether was of legal age and had testamentary capacity.
In the probate of holographic wills, it is required that:
IF THE WILL IS NOT CONTESTED SEANGIO VS. REYES GR 140371-72, Nov 27, 2006
ISSUE: Is the will which only contains a disinheritance of an heir, valid? RULING: Yes. A holographic will as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject
(1) there be at least 1 witness who knows the handwriting and signature of the testator; and (2) that he should explicitly declare that the will and the signature are in the handwriting of the testator. This is if the will is not contested.
Remember: 1 witness, if the will is not contested.
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1 witness and what is his qualification? He should be able to explicitly declare that the will and the signature are in the handwriting of the testator.
IF THE WILL IS CONTESTED (1) there be at least 3 witnesses (2) they know the handwriting and signature of the testator; and (3) they should explicitly declare that the will and the signature are in the handwriting of the testator 2nd paragraph: In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.
If the will is contested, is it really required to present at least 3 witnesses?
the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may thus become an impossibility. THE LAW FORESEES THE POSSIBILITY THAT NO QUALIFIED WITNESS MAY BE FOUND. That is evidently the reason why the second paragraph of Article 811 prescribes that — in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.
First, let’s dicuss the case of Azaola vs. Singson .
AZAOLA VS. SINGSON 109 Phil. 102
Facts: This involves the petition for probate of the will of the testatrix, Fortunata S. Vda. de Yance. Petitioner Fransisco Azaola submitted the holographic will whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased, Respondent Cesario Singson.
Fransisco Azaola testified that (1) he saw the holographic will, one month more or less before the death of the testatrix, as the same was handed to him and his wife; (2) that he recognized all the signatures appearing in the holographic will as the handwriting of the testatrix - presented the SPA, GPA, Deeds of Sale, affidavit, 2 residence certificates to show the signatures of the testatrix for comparison purposes (3) the penmanship appearing in the documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein However, on page 16 of the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata, he answered yes and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will was hers, he answered “I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00. The petition for probate was opposed on t he following grounds: (1) thee execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will. The probate was denied on the ground that u nder Art. 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix.” Azaola contends that (1) he was not bound to produce more than more than one witness because the will’s authenticity was not questioned, and (2) Art. 811 does not mandatorily require the production of 3 witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.
Issue: Should Azaola have presented more than 1 witness? Ruling: ART. 811 OF THE CC IS MERELY DIRECTORY AND NOT MA NDATORY. AZAOLA WAS NOT REQUIRED TO PRODUCE MORE THAN 1 WITNESS SINCE THE WILL’S AUTHENTICITY WAS NOT CONTESTED. BUT EVEN IF THE GENUINENESS OF THE HOLOGRAPHIC WILL WERE CONTESTED, ART. 811 CANNOT BE INTERPRETED AS TO REQUIRE THE COMPULSORY PRESENTATION OF 3 WITNESSES TO IDENTIFY THE HANDWRITING OF THE TESTATOR, UNDER PENALTY OF HAVING THE PROBATE DENIED. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond
THE REQUIREMENT CAN BE CO NSIDERED MANDATORY ONLY IN CASE OF ORDINARY TESTAMENTS, BECAUSE THE PRESENCE OF AT LEAST 3 WITNESSES IS REQUIRED IN THE EXECUTION THEREOF. Whereas in the execution of the holographic wills, no witness need be present. The rule requiring production of 3 witnesses must be deemed merely permissive if absurd results are to be avoided.
ART. 811, THE RESORT TO EXPERT WITNESS IS CONDITIONED BY THE WORD “ IF THE COURT DEEM IT NECESSARY” WHICH REVEAL THAT WHAT THE LAW DEEMS ESSENTIAL IS THAT THE COURT SHOULD BE CONVINCED OF THE WILL’S AUTHENTICITY. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.
Note: With respect to holographic wills, according to this case, it is not just a matter of presenting 3 witnesses but witnesses with requisite qualifications — which is sometimes beyond the control of the proponents of the will because there are no witnesses around when he executes the will. How can we now be sure that the will was really voluntarily executed by the testator when you don’t really require the 3 witnesses? If the court is not convinced that the will is authentic, it may resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. SC said in this case that Art. 811 is not mandatory. It is difficult to find these kinds of witnesses. In the absence of these 3 witnesses, the court may resort to expert testimony. The court may also make its own dete rmination.
CODOY VS. CALUGAY 312 SCAR 333 (1999)
Facts: Respondents Calugay, Salcedo, Patigas, devisees and legatees of the holographic will of Matilde Seo Vda de Ramonal filed a petition for probate of the holographic will of the deceased (assessed value of the property, real and personal was about P400,000 at the time of death). They claimed that: Matilde Seo Vda de Ramonal was of sound and disposing mind when she executed the will on Aug 30, 1978 that there was no fraud, undue influence, and duress employed in the person of the testator and the will was written voluntarily The petition was opposed by Petitioners Codoy and Ramonal. They allged that the holographic will was a forgery and that the same is even illegible. It gives an impression that a 3rd hand of an interested party other than the true hand of Matilde executed the holographic will.
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- the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary - if the will was not forged, the dates and signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. - assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud or trickery.
Respondents Calugay presented 6 witnesses and various documentary evidence. Petitioners Codoy, filed a demurrer to evidence claiming that the Respodents failed to establish factual and legal basis for the probate of the holographic wills of the deceased. Testimonies: 1. Augusto Neri: Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the. records of the case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered. 2. Generosa Senon: election registrar of Cagayan de Oro, was presented to produce and identify the voters affidavit of the decedent. However, the voters affidavit was not produced for the same was already destroyed and no longer available. 3. Matilde Ramonal Binanay: testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of Matildes husband, the latter lived with her in her parents house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close association with the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and the deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. 4. Matilde Ramonal Binanay: further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased. 5. Fiscal Rodolfo Vega: testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the intestate proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure. 6. Mrs. Teresita Vedad: an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the deceased signed documents in her presence, when the latter was applying for pasture permit. 7. Evangeline Calugay: one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
CA allowed the will to be probated. Issue: Is Art. 811 mandatory or permissive? Ruling: BASED ON THE LANGUAGE USED, ART. 811 IS MANDATORY. The word “shall” connotes a mandatory order. We have ruled that shall in a statut e commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word shall, when used in a statute is mandatory.
LAWS ARE ENACTED TO ACHIEVE A GOAL INTENDED AND TO GUIDE AGAINST AN EVIL OR MISCHIEF THAT AIMS TO PREVENT. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.
The paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.
Issue: Should the will be allowed for probate? Ruling: THE CASE IS REMANDED TO THE TRIAL COURT FOR THE PRESENTATION OF MORE EVIDENCE. 1. The witnesses were not familiar of the signature of the testator 2. In Ajero vs. CA, we said that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. 3. The will was found not in the personal belongings of the deceased but with one
of the Respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. 4. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. 5. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. 6. Comparing the signature in the holographic will dated August 30, 1978, and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by the deceased.
Note: SC said here that Art. 811 is mandatory. They took into account the facts of the case. They just cannot close their eyes to the fact that the will appeared to be written by a third person. If you will be asked if it is mandatory to present 3 witnesses, of course, the later case to cite is the case of Codoy vs. Malugay . Art. 811 is mandatory. Especially if the facts are the same. But if the facts are exactly the same as Azaola vs. Singson, then you should cite that. If you want to top the bar exam, you can also say that “but in the case of Codoy…” That would be your possible answer. Although when you practice, of course it depends on the situation of your client. If the testator made a holographic will and he only has 1 witness, then you can cite the Azaola case. If you are for the oppositors, and you know that the proponents can’t present 3 witnesses, then cit e Codoy. Actually, in real life, you can always argue.
How do we know that the will is contested? RIVERA VS. CA 182 SCRA 322
Facts: On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a petition for the issuance of letters of administration over Venancio's estate.
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This petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the decedent. Adelaido averred that Venancio was his father and did not die intestate but in fact left two holographic wills .
RTC: It was found that Jose Rivera was not the son of the decedent but a different Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate was in question was married to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no claim to this estate because the decedent was not his father. The holographic wills were also admitted to probate.
IAC: affirmed RTC. IAC considered the holographic will valid because it was written, dated, and signed by the testator himself in accordance with Art. 810 of the CC. There was no necessity of presenting the 3 witnesses required under Art. 811 because the authenticity of the wills had not been questioned.
Issue: Was the will contested? Is it enough that only 1 witness was presented? Ruling: CONTENTION OF JOSE: The existence and therefore also the authenticity of the holographic wills were questioned by Jose Rivera. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court should have applied Article 811 of the Civil Code, providing as follows: In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the deceased Venancio Rivera whose estate is in question. Hence, being a
mere stranger, he had no personality to contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written and signed by their father, was sufficient.
Note: Here because Rivera was not related to the testator, he had no legal personality to oppose. His opposition did not have the effect of requiring 3 witnesses because legally it was not considered contested. Thus, there is no need to present 3 witnesses. In the probate of wills, it is required (whether notarial or holographic) that the proponents should be interested parties — not strangers, it could be the heirs, the executor, the administrator, the creditors. It is the same for oppositors: one cannot just oppose without any interest. Here, because Rivera was not related to the testator, then he had no legal personality to participate or oppose. His opposition did not have the effect of requiring 3 witnesses.
PROVING A HOLOGRAPHIC WILL WITH A PHOTOCOPY, ALLOWED? In the probate of holographic wills, Is there a need to present a copy of the will in court? What if the will is lost? If the original is lost, can you present a photo copy? In Rodelas vs. Aranza, what was presented here was a mere photocopy. The question is can the holographic will which was lost or cannot be found be proved by means of a photostatic copy. GR: you have to present the original E: when the original is lost or destroyed Here, the photocopy was allowed to be used as basis to prove the original.
RODELAS VS. ARANZA GR L-58509, December 7, 1982
Facts: This involves the petition for probate of the holographic will of Ricardo B. Bonilla as well as the issuance of letters testamentary in her favor. This opposed by the Respondents Amparo Aranza, et al on the following grounds: (1) Rodelas was estopped from claiming that the deceased left a will by failing to produce the will within 20 days of the death of the testator as required by Rule 75, Sec. 2 of the RoC
(2) The copy of the holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged holographic will itself, and not an alleged copy thereof must be produced, otherwise it would produce no effect (4) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.
Trial Court in dismissing the petition for the probate of the will of Ricardo Bonilla said 1. that once the holographic will is lost, a copy thereof cannot stand in lieu of the original 2. In Gan vs. Yap, the Court held that in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills 3. The holographic will was executed on Jan 25, 1962 while the deceased died on May 13, 1976. In the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.
Issue: Whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Ruling: YES. PURSUANT TO ART. 811, PROBATE OF HO LOGRAPHIC WILLS IS THE ALLOWANCE OF THE WILL BY THE COURT AFTER ITS DUE EXECUTION HAS BEEN PROVED. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required.
HOWEVER, IF THE HOLOGRAPHIC WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE, THE WILL CAN NOT BE PROBATED BECAUSE THE BEST AND ONLY EVIDENCE IS THE HANDWRITING OF THE TESTATOR IN SAID WILL. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.
Note: How about if there is no copy of the will at all? If there is no copy at all, but there is one witness who is willing to testify and he has memorized the contents of the holographic will — Would that be allowed? In the case of Gan vs. Yap, the SC said NO. The execution of the contents may not be proved by the bare testimony of witnesses who have seen and read such will. The will itself must be presented. Otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity. The will itself is also regarded as its only safeguard. It can be demonstrated from the will itself whether it is in the hands of the testator himself. Witnesses may be mistaken in their opinion as to the handwriting of the testator or they may deliberately lie. Oppositors may present contradictory evidence such as testimonies of other expert witnesses or other witnesses who knew the handwriting and signature of the testator; or letters in the handwriting of the testator. In view of such contradictory evidence, the court may use its own visual sense and decide in the face of the document whether is has been indeed written by the testator.
Without the copy of the will, the court cannot make its own evaluation and comparison. It would be very difficult to know if the document presented bared the real handwriting and the signature of the testator. Even if in fact, a will was made during the lifetime of the testator, but nocopy of the holographic will is presented during probate, not even a photocopy, then the court cannot allow the probate of the holographic will.
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GAN VS. YAP GR L-12190, Aug 30, 1958
Facts: The surviving husband of the testatrix opposed the petition for the probate of the will on the ground that the deceased did not leave any will nor executed any testament during her lifetime. The probate of the alleged will was denied. The proponents of the will testified that Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.
Issue: May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? Ruling: NO. THE EXCLUSION AND THE CONTENTS OF A LOST OR DESTROYED HOLOGRAPHIC WILL MAY NOT BE PROVED BY THE BARE TESTIMONY OF WITNESSES WHO HAVE SEEN AND/OR READ SUCH WILL. The difference between notarial wills (where it is allowed to prove a will lost by a photostatic copy) and holographic wills is — in holographic wills: (1) the only guarantee of authenticity is the handwriting itself (2) the loss of the holographic will entails the loss of the only medium of proof (3) if oral testimony were admissible, only one man could engineer the fraud; he may convince 3 honest and credible witnesses to see and read the forgery and having the latter testify before the court and affirm the genuineness of the forgery (4) considering that the holographic will may consist of 2 or 3 pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected in notarial wills : (1) the authenticity can be proved by the testimony of the subscribing or instrumental witnesses (and of the notary, now) (2) if the ordinary will is lost, the subscribing witnesses are available to authenticate (3) quite hard to convince 3 witnesses to lie; their lives could be exposed by proving what they did on the day of the execution of the will, etc. (4) when at the end of the day, they will not be able to get anything out of the will One more fundamental According to Castan, Sanchez Roman and Valverde: difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Note: That is with respect to holographic wills. In notarial wills, even if the notarial will is lost and one cannot present a copy in court, it can still be proved by a recital of the witnesses. You will learn that in special proceedings. But you cannot do that with holographic wills.
Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.
Yes. It is expressly recognized in Art. 812. The requirement is only that the holographic must be dated and signed by him. In notarial wills though, the additions after the signature of the testator will invalidate the entire will — again this is because it would no longer comply with the requirement that the signature must be at the logical end of the will. The law says: the signature must be dated and signed by him. Purpose: to prevent fraud and insertions by other person.
What if the additional provision is not signed/dated? Not valid if it is not signed nor dated. But we have Art. 813..
Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. A testator can add several dispositions (i.e. every week, every month ). Generally, each disposition must be dated. Alhtough if there are several, and none of the previous additions are not dated, as long as the last one is dated and signed, it validates the dispositions preceding it. Such dispositions will be deemed to have been made on the date of the last disposition.
ADDITIONAL PROVISIONS IN A HOLOGRAPHIC WILL NOT WRITTEN BY THE TESTATOR What if the additional provisions are written by a third person other than the testator? Would those invalidate the will? IT DEPENDS. (1) If the additional dispositions are not signed by the testator — The additional dispositions do not invalidate the will. Such additional dispositions should just be disregarded. The signature of the testator connotes that he owns/adopts the provisions which he signs. Thus, there being no signature pertaining to the additional dispositions, the testator does not intend to include them in his will. Again, will is still valid. Why? It could be very dangerous if the whole will is voided. It could be easy for someone to invalidate the will just to exclude someone else from inheriting from the deceased. (2) If those additional provisions are signed by the testator — by signing the additional dispositions, the testator, clearly has intent to adopt the provisions as his own. The will is void. Because there is something that is not in the handwriting of the testator. Here, we have a situation where the holographic will is not entirely written in the hands of the testator. This makes the will void.
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. INSERTIONS, CANCELLATIONS, ERASURES OR ALTERATIONS IN A HOLOGRAPHIC WILL This is different from Art. 812 and 813.
How do you make insertions, cancellations, erasures, or alterations? The law says they should be authenticated by the full signature of the testator. Again, this will not apply to notarial wills because you are not allowed to make any insertions/cancellations in a notarial will.
What if you want to cancel /insert/ add something in the notarial will? Either make a codicil, or a new will. The law says: FULL SIGNATURE If the name of the testator is Juan dela Cruz, then it should show Juan dela Cruz. If one customarily signs his name, J.D. Cruz, then it is fine. As long as this is his customary signature. Again, initials are not allowed in holographic wills.
Can you write additional dispositions after you have affixed your signature in the holographic will?
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Example: I hereby give my house and lot in Calinan, Davao City to A. The testator changed his mind and now wants to give her house in Matina instead. She cancelled the word, Calinan and insert ed the world Matina. The cancellation and insertion must be authenticated by the full signature of the testatrix. It need not be dated — not required. Only the full signature is needed.
The substitution in Gregorio’s favor cannot be given effect because Natividad could have intended Rosa to be the sole heir.
What is the effect if the insertion, cancellation, erasure or alteration is not authenticated? GR: If the insertion, cancellation, erasure or alteration is not valid there being no authentication, the will as originally written shall prevail. E: The law on revocation is applied. Thus the will cannot be given effect — as
BUT the SC held that the will can no longer be given effect because there is only one substantial provision. When the name of Rosa was cancelled, shows the manifestation on the part of the te stator that he had a change of heart. We can relate this to the Rule on Revocation of Wills. Although it is not discussed in the case, the cancellation of the name of Rosa here is equivalent to a revocation. The cancellation implies the intent of revocation. The cancellation is an overt act of revocation on the part of the testatrix to delete Rosa as an heir. Under the Rule on Revocation , there are 3 kinds of revocation — one of which is revocation by overt acts such as - cancelling - burning - tearing - obliterating As long as there is cancellation coupled with animus revocandi or an intent to revoke, there is a revocation. There is no requirement that it be authenticated by the full signature. Again, the act of cancelling the name of Rosa was actually tantamount to revocation. There being revocation of her name, and there are no other heirs in the will (the insertion of Gregorio’s name not being authenticated) nothing remains in the will that can be given effect. That’s why the entire will could not be given effect at all.
in the case of Kalaw vs. Relova,
KALAW VS. RELOVA 132 SCRA 237
Facts: Gregorio Kalaw, claiming to be the sole heir of his sister (Natividad Kalaw, deceased) filed a petition for the probate of his sister’s holographic will executed on Dec. 24, 1968. The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Petitioner Rosa Kalaw opposed probate alleging that the holographic will contained alterations, corrections and insertions without the proper authentication by the full signature of the testatrix as required by Art. 814 of the CC. She alleges that the holographic Will as first written where she was the sole heir of the deceased, should be given effect and probated so that she could be the sole heir thereunder.
Trial court denied the admission to probate of the will of Natividad. Gregorio filed a MR arguing that since the alterations and/or insertions were the made by the testatrix. The denial to probate of her holographic will would be contrary to her right of testamentary disposition.
If we just go ahead and apply the general rule under Art. 814, we just disregard the cancellation of Rosa and disregard also the insertion of the name of Gregorio because it was not authenticated. The effect would be to give the property to Rosa because the cancellation of her name, not being authenticated, is not valid.
Date or signature was cancelled in a holographic will In Ajero vs. CA, there was discussion of the SC on what happens if the date or the signature was cancelled in a holographic will. Such cancellation invalidates the entire will. Because in holographic wills, the date and the signature go to the very heart of the will. If there is cancellation in those portions without authentication, and as long as there is intent to cancel, then nothing in the will could be given effect. The general rule was not applied in this case. You apply the law on revocation.
The MR was denied on the ground that Art. 814 was clear and explicit. Rosa filed this Petition for Review on Certiorari on the sole question of whethher the original unaltered text after subsequent alterations and insertions were voided by the trial court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.
Issue: Is a holographic will containing alterations and insertions deemed void or revoked? Ruling: THE ENTIRE WILL IS VOIDED. 1. In this case, the Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the ENTIRE WILL IS VOIDED OR REVOKED FOR THE SIMPLE
REASON THAT NOTHING REMAINS IN THE WILL AFTER THAT WHICH COULD REMAIN VALID. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by a ffixing her full signature. 2. Court has ruled in Velasco vs. Lopez : “Ordinarily, when a number of erasures, corrections and interlineations made by the testator in a holographic Will litem not been noted under his signature… the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. This ruling does not apply in this case. This ruling must be held
confined to such insertions, cancellations, erasures or alterations in a holographic Will which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. Note: Rosa can no longer claim because there was an intent to remove her. This is despite the fact that such cancellation or removal was not authenticated.
AJERO VS. CA 236 SCA 488, 1994
Facts: Petitioners Ajero instituted this case for the probate of Annie Sand’s will. Petitioners and Respondents were named as devisees in the will. The petition was opposed by the Respondents on the ground that it contained alterations and corrections which were not duly signed by decedent.
RTC: While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.
CA: reversed. Decedent did not comply with Articles 813 and 814. It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. It thus disallowed the probate of the will.
Issue: Should the will be disallowed for probate? Ruling: NO. 1. In case of holographic wills, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Art. 810 of the CC: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. 2. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
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3. A reading of Art. 813 of the NCC shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.
4. Thus, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Art. 814. The Court in Kalaw vs. Relova ruled: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985.
5. Thus, unless the authenticated alterations, cancellations or insertions were made on the date of the hologaphic will or on testator’s signature, their presence does not invalidate the will itself. The lack of authentication will only result in the disallowance of such changes. 6. The requirements of authentication of changes and signing and dating of dispositions appear in provisions (Art. 813 and 814 separate from that which provides for the necessary conditions for the validity of the holographic will (Art. 810) . Only those requirements in Art. 810 are essential to the probate of a
holographic will. THUS ANNIE SAND COULD NOT VALIDLY DISPOSE OF THE HOUSE AND LOT IN CABADBARAN, AGUSAN DEL NORTE, IN ITS ENTIRETY. *Go to Art. 817
VENTURA VS. VENTURA 106 Phil 1159
Facts: This involves the testate of Gregorio Ventura. The CFI removed Maria Ventura as executrix and administatrix of the estate of Gregorio and instead appointed appellees Mercedes and Gregoria. - Maria : illegitimate daughter of Gregorio - Miguel Ventura : son - Juana are surviving wife - Mercedes and Gregoria: Gregorio’s legitimate children with first wife Paulina; but their paternity was denied by Gregorio in his will. Dec 14, 1953 — Gregorio filed a petition for the probate of his will which did not Mercedes and Gregoria. Maria, although an illegitimate child, was named and appointed by Gregorio as the executrix of his will and administatrix of his estate. The will was admitted to probate. Gregorio Ventura died on Sept 26, 1955. Maria submitted an inventory of the estate of Gregorio. The account of administration filed by Maria was oppsed by the Spouses Mercedes (daughter) and Pedro Corpuz and Exequiel and Gregoria on the ground that the account did not refect the true income of the estate and the expenses hich allegedly are not administration expenses.
Issue: Whether the removal of Maria Ventura as executrix is legally justified. Ruling: Under Article 854 of the Civil Code, "the pretention or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious," and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of another administrator.
Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by law of the country in which he may be. Such may be probated in the Philippines.
Art. 816. The will of a alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.
Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a itizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. We ahve already discussed Articles 815 to 817 when we discussed the extrinsic validity of wills. Let’s go to Art. 818.
MICIANO VS. BRIMO 50 Phil 867 The judicial administrator of the estate of Joseph G. Brimo filed a scheme of parition. This was opposed by Andre Brimo, one of the brothers of the deceased. The opposition was approved. The opposition was based on the fact that the parition in question puts into effect the provisions of Joseph Brimo’s will which are not in accordance with the laws of his Turkish nationality, for which reason they are void being in violation of Art. 10 (now Art. 16) of the CC which provides: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.
Issue #1: Was the approval of the project of parition proper? Ruling: YES. 1. Oppositor did not prove that said testamentary dispositions are not in accordance with Turkish laws
2. He did not present any evidence showing what Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. 3. The refusal to give the oppositor another opportunity to prove such laws is proper for it is discretionary on the part of the trial court. The oppositor was granted ample opportunity to introduce competent evidence. 4. There is no evidence in the record that the national law of the testator was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. 8
Issue #2: Is the provision in the will which excludes the oppositor because of his act of opposing the will for being violative of Turkish law, valid? “Second. I like desire to s tate that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. ” Ruling: NO. 1. The institution of legatees in this will is conditional and that condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality but in accordance with the laws of the Philippines. This condition is void being contrary to law under Art. 792 which provides that Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.
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2. It expressly ignores the testator’s national law when according to Art. 10 of the CC, such national law of the testator is the one to govern his testamentary dispositions. Thus, the institution of legatees in said will is unconditional and consequently valid and effective even as to herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.
TESTATE ESTATE OF SUNTAY GR L-3087 and L-3088, July 31, 1954
FACTS: May 14, 1934 – Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in Amoy, Fookien, Republic of China. The value of the estate left by the deceased is more than P50,000.
ISSUE #2: Has the right of Silvino and Nativided to have the will probated, prescribed? RULING: The dismissal of the petition for probate of the will on February 7, 1938 was no bar to the filing of the petition on June 18, 1947, or before the expiration of 10 years.
ISSUE #3: Was there a will? RULING: AS TO THE LOST WILL, Sec. 6, Rule 77 provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
Those who testified to the provisions to the lost will of Jose Suntay are: 1) 2)
He left real and personal properties in the Philippines and a house in Amoy, Fookien Province, China. He has children in his first marriage with the late Manuela Cruz: Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora and Emiliano. He has a child in his 2nd marriage with Natividad Lim Billian (still alive): Silvino.
3)
Intestate proceedings were instituted in the CFI of Bulacan. Letters of administration were issued to Apolonio Suntay. He was replaced by Federico Suntay when Apolonia died. October 15, 1934 – the surviving widow, Natividad filed a petition with the CFI of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on Nov. 1929 by the late Jose Suntay. This was denied because of the loss of the said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will.
4)
Manuel Lopez (attesting witness) – was dead at the time of the hearing of the alternative petition Go Toh – he attests to the fact that he was one of the witnesses of the will which consists of 23 pages signed by Jose Suntay at the bottom of each in the presence of Alberto Barretto, Manuel Lopez and himself; he did not take part in the drafting; only that Jose told him that the contents thereof are the same as that one which was in the office of Alberto Barretto; Mrs Suntay had the draft of the will translated into Chinese and he read the translation; he did not read the will and compare it to the draft Ana Suntay -- Her father Jose Suntay left a will in the house of Apolonio Suntay that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. ; she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id .) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto Anastacio Teodoro – Go Toh left the will in Anastacio’s office. He attests to the fact that the will was the same as the draft.
If the will was snatched, after the delivery of Go Toh to Anastacio sometime in January 1948, then the testimony of Ana Suntay that she heard her brother Apolinio Suntay read the will in September 1934 must not be true.
Despite of the deposition of Go Toh who attested that he witnessed the making of the will, the probate court denied a motion for the continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition.
The legal requirement that the provisions of the lost will must be “clearly and distinctly proved by at least two credible witnesses” is not present. Credible
After WW2, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China , Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N)
The testimony of Alberto Barretto corroborates that of Go Toh to the effect that only one will was signed by Jose Suntay at his office in which Alberto barreto, Manuel Lopez and Go Toh took part as attesting witnesses. Go Toh testified that he did not leave the will in the hands of Anastacio Teodoro .
CFI of Bulacan disallowed the alleged will and testament executed in Manila in Novmber 1929 and the alleged last will and testament executed in Kulangsu, Amoy, China on January 4, 1932, by Jose Suntay.
ISSUE #1: Are Silvino and Natividad estopped to have the alleged will of Jose Suntay probated? RULING: NO. There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China.
witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses.
AS TO THE WILL CLAIMED TO HAVE BEEN EXECUTED on January 4, 1931 in Amoy, China, THE LAW WHICH APPLIES ARE THE FF.: Rule 78, Sec. 1. Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper CFI in the Philippines. Sec.2. When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Sec. 3. If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.
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The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and crossexamine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened to or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China which states that the minutes of the interrogation of the parties who declare that there are no errors, after said minutes were loudly read and announced actually in the court…. Does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to t he probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. Decision of the CFI is affirmed.
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. JOINT WILL Art. 818 talks about joint wills. It says two or more persons cannot make a will jointly. It could be either for their reciprocal benefit or for the benefit of a third person. The will of 2 or more persons is embodied in one document. A joint will has only 1 attesting clause, 1 set of dispositions which are jointly signed by two testators. This is not allowed. If the will had separate testamentary dispositions affixed by the respective testators, only embodied in one docuement, then that is not a joint will. This kind of will would be valid. Why? Because it is not executed jointly. Siguro nagtipid lang sila sa papel. There are actually two wills here.
REASONS WHY JOINT WILLS ARE NOT ALLOWED: (5) 1) It destroys the character of a will as a strictly personal act •
it ceases to be personal when it is jointly executed
2) It tends to convert a will into a contract • two people would tend to make the dispositions of one dependent on the dispositions of another • this cannot be because wills are unilateral whereas contracts are bilateral 3) It runs counter to the idea that wills are essentially revocable
• •
one of the characteristics of a will is that it is essentially revocable or ambulatory it would be difficult to revoke such without the other’s intent to revoke
3) It may subject one to undue influence and induce parricide if reciprocal • this is the usual reason given why joint wills are not allowed • joint wills are usually executed by spouses, one might be induced or tempted to kill the other in order to advance the transfer of properties 4) It makes probate much more difficult in case of testators at different times
JOINT WILL, as defined — one where the same testamentary instrument is made a will of two or more persons; and is jointly executed and signed by them
Is a joint will synonymous to a mutual or reciprocal will? No. A mutual or reciprocal wills are the separate wills of two persons which are reciprocal in their provisions giving the separate property of each testator to the other. They are executed with the common intention on the part of the testators irresepctive of whether there is a contract between them — Although the contractual element is often involved. - mutual or reciprocal wills are also called twin wills - Is it valid? There is no prohibition. They are valid provided that they are not joint wills or not in the nature of disposition captatoria. - What is prohibited are joint wills. - and also those in the nature of disposition captatoria — which makes wills like contracts Ex. I will give A my land in Davao City provided that he give me the land in Samal Island.
DELA CERNA VS. POTOT GR L-20234, Dec 23, 1964
Facts: The Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the Visayan language. They stated therein that their 2 parcels of land acquired during their marriage together with all improvements thereon shall be given to Manuela Rebaca, who they have nurtured since childhood, because God did not give them any child in their union. Bernabe dela Serna died on Aug 30, 1939 and the will was submitted to probate by Gervasia and Manuela before the CFI of Cebu. There was no opposition. The CFI admitted the will to probate. When Gervacia Rebaca died on October 14, 1952 another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952. Because of the failure of Manuela and her attorney to appear for the hearing of the said petition, the case was dismissed on March 30, 1954.
CFI: ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818 of the CC of the Philippines)
CA: reversed on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has
long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid." The heirs intestate of the deceased husband Bernabe filed an appeal. They contend that because the will is void, it cannot be validiated.
Issue: Is the will valid?
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Ruling: THE WILL IS VALID INSOFAR AS BERNABE’S ESTATE IS CONCERNED. 1. The final decree of the probate entered in 1939 (when the testator, Bernabe de la Cerna, died) has conclusive effect as to his last will and testament despite the fact that the Civil Code already decreed the invalidity of joint wills. A final judgement rendered on a petition for the probate of a will is binding upon the whole world and public policy and sound practice demand that at the risk of occasional errors judgement of courts should become final at some definite date fixed by law. 2. Petitioners as heirs and successors of the late Bernabe are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.
- Art. 818 merely prohibits joint wills in general; while Art. 819 clarifies that even when a Filipino executes a joint will abroad, such will would still not be valid - it is still void even if authorized by the law of the country where the joint will was executed
Examples of countries which allow joint wills: Mexico, Argentina, Brazil, France Art. 819 applies to Filipinos. How about foreigners? Will is executed in Mexico The will is executed in Mexico, a Filipino husband and the Mexican wife, executed a joint will. They have properties in Mexico and the Philippines. Is the will valid? In Mexico, joint wills are allowed. Is it recognized in the Philippines? Remember the principle behind joint wills, even if there is only one will, that is the separate wills of two or more persons.
WILL IS VOID INSOFAR AS GERVACIA’S ESTATE IS CONCERNED. 1. To avoid misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband Bernabe de la Cerna. It could not include the
With respect to the Filipino spouse, Art. 818 and 819 provide that the joint will shall not be recognized. Will is not valid.
disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.
With respect to the foreigner spouse, we apply the general rule on lex loci celebrationis. Art. 17. If that will is valid and recognized in the place of execution, it will be valid in the Philippines. Also the same with Art. 815. Will is valid.
2. The validity of the joint will, in so far as the estate of the wife was concerned, must be on her death, re-examined and adjudicated de novo, since a joint will is
considered a separate will of each testator. 3. CFI is correct in holding that the joint will is one prohibited by law for reasons the SC stated in Bilbao vs. Bilbao: WHY ARE JOINT WILLS VOID? The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this
provision, especially as regards husband and wife is that when a will is made jointly or in the same instruments, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor . And, where the will is not only jointly but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.
Will is executed in the Philippines As to the Filipino spouse — joint will is void As to the Mexican spouse — there are 2 views: (1) The will is valid if the place of her nationality allows joint wills — The Mexican spouse’s country allows joint wills. So applying Art. 816, she can execute the will in accordance with the formalities prescribed by the law of her nationality. If it is valid according to her national law, it is valid here. (2) The will is void — since the will is executed here in the Philippines, we can apply the 3rd par. of Art 17 which says prohibitive laws, concerned in persons, their acts or property and those which have for their object public order, public policy and good customs, shall not be rendered ineffective by laws or judgements promulgated or by dete rmination or conventions agreed upon in a foreign country. So our laws relating to joint wills, Art. 818 is an expression of public policy. This cannot be subordinate to the laws of foreign countries.
Which is the more prevailing view? There is no prevailing view. Still subject to argument. If asked, must say the 2 views.
4. EFFECT: The undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate , and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. 5. It is unnecessary to emphasize that the fact that joint wills be in common usage
could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance.
If you are hired by a foreign client who executed a joint will here in the Philippines — you can cite Art. 816 and say that the will is valid. Since the joint will is in accordance with his national law then it should be valid here in the Philippines. If you are the oppositor, you can argue in accordance to Art. 17 par. 3.
Subsection 4.
Note: Remember in this case, even if the joint will was already admitted to probate in the 1939 decree and that became final and executory, that is conclusive only as to the estate of the husband. With respect to the wife, that is another proceeding. The SC said that upon the wife’s death, the joint will presented for probate must be reexamined and adjudicated de novo. There must be a new determination as to whether the will is valid.
Witnesses to Wills
Art. 820. Any person of sound mind and of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. We are referring to witnesses in notarial wills. Witnesses are not required in holographic wills.
The court is not bound by that 1939 case. Art. 820 refers to the qualifications of the attesting witnesses.
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. Referring to joint wills, Art. 819 says: If executed by Filipinos in a foreign country — still not valid in the Philippines - prohibition against the execution of joint wills applies to Filipinos - this is an exception to the lex loci celebrationis principle [Art. 815 and 17]
REQUISITES TO BE AN INSTRUMENTAL WITNESS: (1) (2) (3) (4)
sound mind at least 18 years old not blind, deaf or dumb able to read and write
A witness has more qualifications than the testator who should only be at least 18 years old and of sound mind at the time of the execution of the will.
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Let’s discuss the disqualifications before we go to the qualifications.
Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony.
If we merge Art. 820 and 821, these are the COMPLETE QUALIFICATIONS OF A WITNESS: (1) sound mind (2) at least 18 years old, at the time of the attestation/execution of the will (3) not blind, deaf or dumb (4) able to read and write (5) domiciled in the Philippines (habitual residence Art. 50) (6) not been convicted of falsication of a document, perjury or false testimony - must be convicted by final judgement - What if pardoned? Depends. Maybe if the pardon by reason of innocence. Blind persons — can be testators ; but are disqualified to be a witness Deaf persons — with respect to witness, they are supposed to be able to attest that the will was executed in their presence; the deaf person can actually see, but why is he disqualified? Because it would be difficult to extract his testimony during probate. Dumb and illiterate persons — can see/hear but they cannot understand; will be difficult in the probate proceedings Domiciled in the Philippines — the reason why they have to be domiciled in the Philippines is that their participation is not limited during the execution of the will; they will be called again in the future to testify; and if they are domiciled abroad chances are at the time they are called to testify, they cannot be reached by court processes - this will only refer to those wills which are executed in the Philippines - it would be absurd to require Filipinos abroad to look for witnesses who are from the Philippines; anyway the Filipino abroad can just follow the legal formalities prescribed in Africa
When you say “domicile” you can refer to Art. 50 of the CC: For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.
ESSENTIAL ELEMENTS OF RESIDENCE IN ART. 50. (1) The fact of residing or the physical presence in a fixed place (2) The intention of remaining permanently, or the animus manendi The absence of the person from his residence for years, does not make him lose his residence. As long as he has the intent to return to that place, then that remains to be his domicile for the purpose of execution of a will. Must not be convicted of Falsification of a Document, Perjury or False Testimony Take note of these crimes: (1) Falsification of a Document (2) Perjury (3) False Testimony
These crimes would refer to the ability of the person to tell the truth. The conviction here must by final judgement of these crimes. If your witnesses is a murderer, rapist, he can be a witness. Dibale nang rapist siya basta hindi siya sinungaling.
What if the witness was pardoned? It depends. If the pardon was given because he was later found to be innocent — he is qualified If the pardon is by reason of an executive clemency, you are still disqualified because the pardon erases only the penalty or the civil consequences of the
conviction but it does not change the fact that you are dishonest and untrustworthy.
Can a notary public be an attesting witness? He is disqualified to become a witness for the reasons discussed in the case of Cruz vs. Villasor. But he is not disqualified to perform the acts of the notary public. - if there are only 3 witnesses and the notary public is one of them, the will is void - if there are 4 witnesses, the notary public being the fourth, the will is valid because the 3-witness rule was complied with
CRUZ VS. VILLASOR 54 SCRA 31
Facts: Manuel Lugay filed a petition for the probate of the will of the deceased, Valente Cruz. This was opposed by the Agapita Cruz, the surviving spouse of the deceased. Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.
Issue: Whether the will is valid. Ruling: THE WILL IS NOT VALID. 1. THE NOTARY PUBLIC BEFORE WHOM THE WILL WAS ACKNOWLEDGED CANNOT BE CONSIDERED AS THE THIRD INSTRUMENTAL WITNESS SINCE HE CANNOT ACKNOWLEDGE BEFORE HIMSELF HIS HAVING SIGNED THE WILL. To acknowledge means to avow; to own as genuine, to assent, to admit and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.
2. THE FUNCTION OF A NOTARY PUBLIC WOULD BE DEFEATED IF THE NOTARY PUBLIC WERE ONE OF THE ATTESTING INSTRUMENTAL WITNESSES. His function as a notary public is, among others, to guard against any illegal or immoral arrangement. For them he would be interested sustaining the validity of the will as it directly inolves him and the validity of his own act. It would place him in an inconsitent position and the very purpose of the aknowledgement, which is to minimize fraud would be thwarted. (there is a conflict of interest)
EFFECT: TO ALLOW THE NOTARY PUBLIC TO ACT AS 3RD WITNESS OR ONE THE ATTESTING AND ACKNWLEDGING WITNESSES, WOULD HAVE THE EFFECT OF HAVING ONLY 2 WITNESSES TO THE WILL WHICH WOULD BE IN CONTRAVENTION OF THE PROVIONS OF ART. 805 AND 806 WHICH REQUIRES THAT THE TESTATOR nd the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.
KINDS OF WITNESSES
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marginal witnesses instrumental witnesses
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attesting witnesses credible witnesses
Gonzales vs. CA discusses witnesses in notarial wills. This involved a probate proceeding.
The oppositor in the probate proceeding argued that when you say credible witnesses, there has to be a separate proceeding to determine their credibility. So you cannot just call these witnesses to the witness stand and ask them to testify directly as to the facts which attended the execution. There has to be separate and independent evidence to prove their credibility. The oppositor cited the rules on naturalization proceedings because therein, before the witnesses are presented there are other evidences submitted to prove their credibility. SC said that there is no such requirement. When you say credible witnesses under Articles 820 and 821, in relation to Art. 805. Credible witnesses mean competent witnesses and not those who testify facts which are hearsay. In the strict sense, the competency of a person to be an instrumental witness is determined by the statute that are Articles 820 and 821 of the NCC. Whether a witness is competent is determined by referring to Articles 820 and 821. He is competent if he has all qualifications in Art. 820 and none of the disqualifications under Art. 821. His credibility, depends upon the appreciation of his testimony and arises from the belief and conclusion of the court that the said witness is telling the truth. That can be assessed during the time he is called to testify. During his testimony, while he testifies to facts which occurred during the execution of the will, the court can also observe his demeanor — whether he is telling the truth. There is no mandatory requirement that the witnesses testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. - in naturaliztion proceedings, the witnesses there are called character witnesses as they testify as to the character of the foreigners who are applying to be naturalized - a probate proceeding is different than naturalization proceedings - the witnesses in probate proceedings are not character witnesses because even if the testator is a criminal, he can execute a will, as long as all the requirements are complied with
GONZALES VS. CA Facts: Private Respondent Lutgarda Santiago (nieces) filed a petition for the probate of the will of Isabel Gabriel who designated Petitioner Rizalina Gabrial Gonzales as a the principal beneficiary and executrix. The testatrix died as a widow and without issue, at the age of 85. Petitioner contends that he will is void because there is no proof that the 3 instumental witnesses were credible witnesses. That the requirement in Art. 806 that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of witnesses.
Issue: Whether the will was executed and attested as required by law. Ruling: ART. 820 PROVIDES THE QUALIFICATONS OF A WITNESS TO THE EXECUTION OF WILLS WHILE ART. 821 SETS FORTH THE DISQUALIFICATION FROM BEING A WITNESSES TO A WILL. There is no mandatory requirement that the witnesses testify initially or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the
record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. THE MEANING OF ‘CREDIBLE’ IS NOT THE SAME AS THE ONE USED IN THE NATURALIZATION LAW. In the latter, it is mandatory that the petition for naturalization must be supported by 2 character witnesses who must prove their good standing in the community, reputation for trustworthiness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended). In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testatment and affirm the formalities attendant to the execution . Court found each of the 3 instumental witnesses to be competent and credible — supported by the evidence found by the CA which the SC is bound to accept. Lutgarda also has not alleged that the instrumental witnesses are disqualifie, much less that it is shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805. She says that competency is different from credibility. That there is no evidence to show that the instrumental witnesses are credible in themselves.
It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and employee much less the
humble or financial position of a person do not disqualify him to be a competent testamentary witness. As to the contention that the qualifications of the 3 or more credible witnesses mentioned in Art. 805 are those mentioned in Art. 820. Thus in Suntay vs. Suntay the Court held that “granting that a will was duly executed and that it was in existence at the time of, and not revoked before the death of the testator, still the provisions of the lost will must be clearly and distinctly proved by at least 2 credible witnesses. Credible witnesses mean competent witnesses and not those who testify to facts from or upon hearsay.
***THE COMPETENCY OF A PERSON TO BE AN INSTRUMENTAL WITNESS TO A WILL IS DETERMINED BY THE STATUTE, THAT IS ART. 820 AND 821. HIS CREDIBILITY DEPEDNS ON THE APPRECIATION OF HIS TESTIMONY THAT ARISES FROM THE BELIEF AND CONCLUSION OF THE COURT THAT THE SAID WITNESS IT TELLING THE TRUTH. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, IT IS NOT MANDATORY THAT EVIDENCE
BE FIRST ESTABLISHED ON RECORD THAT THE WITNESSES HAVE A GOOD
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STANDING IN THE COMMUNITY OR THAT THEY ARE HONEST AND UPRIGHT OR REPUTED TO BE TRUSTWORTHY AND RELIABLE, FOR A PERSON IS PRESUMED TO BE SUCH UNLESS THE CONTRARY IS ESTABLISHED OTHERWISE. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore,
When we go to acceptance and repudiation, there is a provision which states that when an heir renounces his inheritance to the detriment or prejudice of his creditors, the creditor may petition the court to receive the inheritance. This is allowed since that is the only way the creditor can be paid.
reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good standing in the community and reputed to be trustworthy and reliable.
Would be different if: A is a witness. X is A’s creditor. X is instituted as an heir. X is not disqualified because he is an instituted heir himself. He is not just claiming under A or the spouse/child/parent of A.
Art. 822. If the witnesses attesting the execution of a will are
Art. 824. A mere change on the estate of the testator for the payment
competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.
of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will.
These qualifications must be present during the execution of the will. If after the execution of the will, the witness becomes blind, convicted of a crime, as long as all the requirements at the time of the execution were complied with, then the will is valid.
What about during probate the witness becomes blind? With respect to the qualifications during the execution of the will, we follow Art. 820 and 821. With respect to his qualifications to testify during probate, we follow the Rules of Court.
QUALIFICATIONS OF WITNESSES IN PROBATE PROCEEDINGS Sec. 20 of Rule 130 of the Rules of Court: x x x all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses.
Illustration: X is a creditor of the testator. The testator provided that he is bequeathing P1M as payment of his debt to X. At the same time, X is a witness to the will of the testator. Is X disqualified to receive that P1M? The law says, NO. X, even if he is a creditor, can still act as a witness. At the same time, the P1M allocated in the payment of his credit, can still be received by X since it is a debt due to him. The estate in all circumstances, with or without a will, it will be under the obligation to pay his debt to X. The creditors can still act as a witness. Even if in the will, a part of the estate is left to him as payment of the debt of the testator, the creditor is entitled to that part. It would be a different story if the creditor gets more than what is due to him. He forfeits the amount above his debt.
With respect to probate of holographic wills , the qualification of the witnesses is that they know the signature and the handwriting of the testator.
What if during the probate proceedings, the witnesses are not available, does this mean that the will would not be admitted to probate? In case the witnesses have become insane, are not domiciled in the Philippines, passed away, in notarial wills — other witnesses may be allowed.
Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a device or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse or parent or child of such person, or any one claiming under such person or spouse, or parent, or child, be void unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. This refers to that scenario where a witness is also an heir/legatee/devisee. The witness is A but A’s spouse/parent/child is a legatee/devisee/heir.
What happens to the will? Valid? Will is still valid but that person is also an heir/legatee/devisee forfeits his inheritance or devise.
Why is there this qualification? To prevent conflict of interest. What if the witness is the compulsory heir, is the legitime forfeited? NO, because the law provides for the legitime. However, that compulsory heir forfeits what is over and above the legitime. The same thing happens if he is a witness and the spouse/parent/child is a legatee or devisee of heir. So the legacy, devise is forfeited. Law says : or Anyone claiming under such person/spouse/parent/child. Example: A has been instituted as an heir/legatee/devisee in the will. At the same time he is also a witness. As we have said, he is disqualified to become a legatee/heir/devisee. If A has a creditor who claims under him, such creditor, will not be paid.
CALUYA VS. DOMINGO 27 SCRA 330
Facts: The CFI of the Province of Ilocos Norte denied the probate of the will of ___ on the following grounds: (1) although the testator has signed by mark, it did not appear in the will who had written the signature or that it had been written at his request (2) the witness, Antonio Pandaroan could not really have signed the attestation clause because at the time it was executed, he was attenting a session of the municipal council of Piddig as a member thereof (3) As to the other witness, Segundino Asis, the will mentioned and confirmed a sale of land to him by the testator and he being thereby an interested party his testimony could not be believed
Issue: Should the will be admitted to probate? Ruling: YES. 1. Sec. 618 does not require that where the testator is unable to write, the fact that his signature was written by some other peron, at his request and express direction, should appear in the body of the will itself. It provides that the attestation clause shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of the witnesses, and that t hey attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided." 2. The attestation clause complies with Sec. 618. Moreover, it appears clearly proved in evidence that the name of the testator was signed by another person at his request and under his direction and in his presence and in the presence of the witnesses to the will. From the reading of Sec. 618, if the attestation clause is defective, or even absent, the will is nevertheless valid provided it is satisfactorily proved that it was in fact signed and executed as provided by law.
Issue #2: Whether Antonino Pandaraoan could not have signed the will as a witness because he was attending a meeting of the municipal council of Piddig. Ruling: WITHOUT MERIT. It does not appear in the evidence of the opposition that the witness Pandaraoan was attending a meeting of the municipal council of Piddig from something like 10 o'clock till 12.30 o'clock of the day on which the will was executed ands that the will was executed sometime between 10 and 12 o'clock. To much weight, however, can not be given to the testimony relative to the precise time of the execution of the will. The barrio of Piddig is only a short distance from the house in
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