SUCCESSION – 1ST EXAM

The distinguishing characteristics of a donation mortis

Xandredg Sumpt L. Latog causa are the following:

I a. It conveys no title or ownership to the transferee before the

INTRODUCTION 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;
A. DEFINITION b. That before his death, the transfer should be revocable by
In its generic or general sense, succession (from the Latin the transferor at will, ad nutum; but revocability may be
“sub” and “cedere,” meaning the placing of one person in the place provided for indirectly by means of a reserved power in
of another) is defined as the transmission of rights and properties the donor to dispose of the properties conveyed;
from one person to another. In this sense, succession may be inter c. That the transfer should be void if the transferor should
survive the transferee
vivos or mortis causa, depending upon whether the transfer is
d. [T]he specification in a deed of the causes whereby the act
effective during the lifetime (inter vivos) of the giver, or after his
may be revoked by the donor indicates that the donation
death (mortis causa). An example of succession inter vivos occurs is inter vivos, rather than a disposition mortis causa;
in an ordinary donation. e. That the designation of the donation as mortis causa, or a
In its technical signification, succession is restricted to provision in the deed to the effect that the donation is "to
succession mortis causa. The succession referred to in our Civil take effect at the death of the donor" are not controlling
Code, in this Title (Title IV) and in Art. 774 is succession mortis criteria; such statements are to be construed together with
causa. It is in this limited sense that succession denotes the transfer the rest of the instrument, in order to give effect to the real
intent of the transferor[;] [and]
of title to property under the laws of descent and distribution,
f. That in case of doubt, the conveyance should be deemed
taking place as it does, only on the death of a person. donation inter vivos rather than mortis causa, in order to
avoid uncertainty as to the ownership of the property
Inheritance vs. Succession subject of the deed [Villanueva v. Sps. Branoco].
Inheritance is the property or right acquired; succession
is the manner by virtue of which the property or right is acquired. What is most significant in determining the type of
donation is the absence of stipulation that the donor could revoke
B. KINDS OF SUCCESSION the donations; on the contrary, the deeds expressly declare them to
be “irrevocable”, a quality absolutely incompatible with the idea of
(1) As to effectivity conveyances mortis causa where revocability is of the essence of
(a) succession inter vivos (example: donation) the act, to the extent that a testator cannot lawfully waive or restrict
(b) succession mortis causa (this is succession in the his right of revocation [Austria-Magat v. Court of Appeals].
specific sense meant in Art. 774) Prohibition to alienate does not necessarily defeat
the inter vivos character of the donation. It even highlights the fact
Donation Mortis Causa that what remains with the donor is the right of usufruct and not
Donations mortis causa partake the nature of anymore the naked title of ownership over the property donated
testamentary provisions and as such, said deeds must be executed [Gestopa v. Court of Appeals].
in accordance with the requisites on solemnities of wills and
testaments under Articles 805 and 806 of the Civil Code Ganuelas v. Cawed
[Maglasang v. Heirs of Cabatingan]. Held: In the donation subject of the present case, there is
Donation inter vivos differs from donation mortis nothing therein which indicates that any right, title or interest in the donated
causa in that in the former, the act is immediately operative even if properties was to be transferred to Ursulina prior to the death of Celestina.
the actual execution may be deferred until the death of the donor, The phrase “to become effective upon the death of the DONOR”
while in the latter, nothing is conveyed to or acquired by the donee admits of no other interpretation but that Celestina intended to transfer the
until the death of the donor-testator. The following ruling of this ownership of the properties to Ursulina on her death, not during her
lifetime.
Court in Alejandro v. Geraldez is illuminating:
More importantly, the provision in the deed stating that if the
donee should die before the donor, the donation shall be deemed rescinded
If the donation is made in contemplation of the
and of no further force and effect shows that the donation is a postmortem
donor’s death, meaning that the full or naked ownership of the
disposition.
donated properties will pass to the donee only because of the
As stated in a long line of cases, one of the decisive
donor’s death, then it is at that time that the donation takes
characteristics of a donation mortis causa is that the transfer should be
effect, and it is a donation mortis causa which should be
considered void if the donor should survive the donee.
embodied in a last will and testament.
But if the donation takes effect during the donor’s
lifetime or independently of the donor’s death, meaning that the Villanueva v. Sps. Branoco
full or naked ownership (nuda proprietas) of the donated Held: It is immediately apparent that Rodrigo passed naked title
properties passes to the donee during the donor’s lifetime, not by to Rodriguez under a perfected donation inter vivos. First.  Rodrigo
reason of his death but because of the deed of donation, then the stipulated that "if the herein Donee predeceases me, the [Property] will not
donation is inter vivos. be reverted to the Donor, but will be inherited by the heirs of x x x
The distinction between a transfer inter Rodriguez," signaling the irrevocability of the passage of title to
vivos and mortis causa is important as the validity or revocation Rodriguez's estate, waiving Rodrigo's right to reclaim title. This transfer of
of the donation depends upon its nature. If the donation is inter title was perfected the moment Rodrigo learned of Rodriguez's acceptance
vivos, it must be executed and accepted with the formalities of the disposition which, being reflected in the Deed, took place on the day
prescribed by Articles 748 and 749 of the Civil Code, except of its execution on 3 May 1965. Rodrigo's acceptance of the transfer
when it is onerous in which case the rules on contracts will underscores its essence as a gift in presenti, not in futuro, as only
apply. If it is mortis causa, the donation must be in the form of a donations inter vivos need acceptance by the recipient. Indeed, had Rodrigo
will, with all the formalities for the validity of wills, otherwise it wished to retain full title over the Property, she could have easily stipulated,
is void and cannot transfer ownership. as the testator did in another case, that "the donor, may transfer, sell, or

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encumber to any person or entity the properties here donated x x x" or used blood, and the natural affection of a person toward those nearest
words to that effect. Instead, Rodrigo expressly waived title over the him in relationship.
Property in case Rodriguez predeceases her. (b) A socio-economic postulate which would prevent
Second. What Rodrigo reserved for herself was only the wealth from becoming inactive or stagnant (this is essential from
beneficial title to the Property, evident from Rodriguez's undertaking to
an economic standpoint to enable social economy to be fi rm. (4
"give one [half] x x x of the produce of the land to Apoy Alve during her
lifetime." Thus, the Deed's stipulation that "the ownership shall be vested on
Castan 148).
[Rodriguez] upon my demise," taking into account the non-reversion (c) The implicit attributes of ownership which would be
clause, could only refer to Rodrigo's beneficial title. We arrived at the same imperfect, if a person is not allowed to dispose of his property,
conclusion in Balaqui v. Dongso where, as here, the donor, while such disposal to take effect when he is already dead (this is a
"b[inding] herself to answer to the [donor] and her heirs x x x that none consequence of rights to property).
shall question or disturb [the donee's] right," also stipulated that the
donation "does not pass title to [the donee] during my lifetime; but when I Article 775. In this Title, “decedent” is the general term
die, [the donee] shall be the true owner" of the donated parcels of land. 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
Del Rosario v. Ferrer the testator. (n)
Held: Here, the donors plainly said that it is "our will that this
Donation Mortis Causa shall be irrevocable and shall be respected by the Article 776. The inheritance includes all the property, rights
surviving spouse."  The intent to make the donation irrevocable becomes and obligations of a person which are not extinguished by his death.
even clearer by the proviso that a surviving donor shall respect the (659)
irrevocability of the donation.  Consequently, the donation was in reality a
donation inter vivos.
This Article provides for the subjects of succession.
(2) As to whether a will exists or not
1. Properties
(a) testamentary succession (there is a will)
These include real as well as personal properties.
(b) intestate or legal succession (there is NO will)
Moreover, the transferee will also own accessions to the property
(c) mixed succession (part of the property has been
accruing thereto, from the moment of death to the time of actual
disposed of in a will)
receipt by said transferee. This is because ownership is transferred
at the moment of death.
(3) As to the transferees of the property
The property must be: (a) capable of appropriation; (b)
(a) compulsory succession (refers to the legitime)
within the commerce of man; and (c) not prohibited by law.
(b) voluntary succession (refers to the free disposal)
Balus v. Balus
(4) As to the extent of rights and obligations involved
Held: In the present case, since Rufo lost ownership of the
(a) universal succession (covering ALL juridical relations subject property during his lifetime, it only follows that at the time of his
involving the deceased) death, the disputed parcel of land no longer formed part of his estate to
(b) particular succession (covering only certain items or which his heirs may lay claim. Stated differently, petitioner and
properties) respondents never inherited the subject lot from their father.
(c) Contractual Succession Petitioner and respondents, therefore, were wrong in assuming
(d) Freak Succession that they became co-owners of the subject lot. Thus, any issue arising from
the supposed right of petitioner as co-owner of the contested parcel of land
is negated by the fact that, in the eyes of the law, the disputed lot did not
(5) As to the type of will
pass into the hands of petitioner and respondents as compulsory heirs of
(a) notarial Rufo at any given point in time.
(b) holographic
Organ Donation Act
II
GENERAL PROVISIONS
Republic Act No. 7170
Organ Donation Act of 1991
Article 774. Succession is a mode of acquisition by virtue of Section 6. Persons Who May Become Legatees or Donees. –
which the property, rights and obligations to the extent of the value of The following persons may become legatees or donees of human bodies or
the inheritance, of a person are transmitted through his death to parts thereof for any of the purposes stated hereunder:
another or others either by his will or by operation of law. (a) Any hospital, physician or surgeon - For medical or dental
education, research, advancement of medical or dental science, therapy or
1. Elements of the Definition transplantation;
(a) mode of acquisition (or ownership) (b) Any accredited medical or dental school, college or
(b) transfer of property, rights, and obligations to the university - For education, research, advancement of medical or dental
science, or therapy;
extent of the value of the inheritance of a person (called grantor or
(c) Any organ bank storage facility - For medical or dental
transferor, decedent, testator, or intestate) education, research, therapy, or transplantation; and
(c) transmission thru death (not during life) (d) Any specified individual - For therapy or transplantation
(d) transmission to another (called grantee, or transferee, needed by him.
heir, legatee, or devisee) Section 8. Manner of Executing a Legacy. –
(e) by will or by operation of law (testamentary or legal (a) Legacy of all or part of the human body under Section 3
succession) hereof may be made by will. The legacy becomes effective upon the death
of the testator without waiting for probate of the will. If the will is not
probated, or if it is declared invalid for testamentary purposes, the legacy,
2. Bases for Succession
to the extent that it was executed in good faith, is nevertheless valid and
(a) The natural law which obliges a person to provide for effective.
those he would leave behind (this is a consequence of family
relations; a recognition of the natural law of con sanguinity, or of
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 (b) A legacy of all or part of the human body under Section 3 property and rights of property affected being incidental [Bonilla v.
hereof may also be made in any document other than a will. The legacy Barcena].
becomes effective upon death of the testator and shall be respected by and
binding upon his executor or administrator, heirs, assigns, successors-in-
Bonilla v. Barcena
interest and all members of the family. The document, which may be a card
Held: Following the foregoing criterion the claim of the
or any paper designed to be carried on a person, must be signed by the
deceased plaintiff which is an action to quiet title over the parcels of land in
testator in the presence of two witnesses who must sign the document in his
litigation affects primarily and principally property and property rights and
presence. If the testator cannot sign, the document may be signed for him at
therefore is one that survives even after her death. It is, therefore, the duty
his discretion and in his presence, in the presence of two witnesses who
of the respondent Court to order the legal representative of the deceased
must, likewise, sign the document in the presence of the testator. Delivery
plaintiff to appear and to be substituted for her. But what the respondent
of the document of legacy during the testator's lifetime is not necessary to
Court did, upon being informed by the counsel for the deceased plaintiff
make the legacy valid.
that the latter was dead, was to dismiss the complaint. This should not have
(c) The legacy may be made to a specified legatee or without
been done for under the same Section 17, Rule 3 of the Rules of Court, it is
specifying a legatee. If the legacy is made to a specified legatee who is not
even the duty of the court, if the legal representative fails to appear, to order
available at the time and place of the testator's death, the attending
the opposing party to procure the appointment of a legal representative of
physician or surgeon, in the absence of any expressed indication that the
the deceased. In the instant case the respondent Court did not have to bother
testator desired otherwise, may accept the legacy as legatee. If the legacy
ordering the opposing party to procure the appointment of a legal
does not specify a legatee, the legacy may be accepted by the attending
representative of the deceased because her counsel has not only asked that
physician or surgeon as legatee upon or following the testator's death. The
the minor children be substituted for her but also suggested that their uncle
physician who becomes a legatee under this subsection shall not participate
be appointed as guardian ad litem for them because their father is busy in
in the procedures for removing or transplanting a part or parts of the body
Manila earning a living for the family. But the respondent Court refused the
of the decedent.
request for substitution on the ground that the children were still minors and
(d) The testator may designate in his will, card or other
cannot sue in court. This is another grave error because the respondent
document, the surgeon or physician who will carry out the appropriate
Court ought to have known that under the same Section 17, Rule 3 of the
procedures. In the absence of a designation, or if the designee is not
Rules of Court, the court is directed to appoint a guardian ad litem for the
available, the legatee or other persons authorized to accept the legacy may
minor heirs. Precisely in the instant case, the counsel for the deceased
authorize any surgeon or physician for the purpose.
plaintiff has suggested to the respondent Court that the uncle of the minors
be appointed to act as guardian ad litem for them. Unquestionably, the
2. Rights respondent Court has gravely abused its discretion in not complying with
Some rights are extinguished by death: some are not. As the clear provision of the Rules of Court in dismissing the complaint of the
a general rule, patrimonial rights are transmissible. Some plaintiff in Civil Case No. 856 and refusing the substitution of parties in the
patrimonial rights that are not transmissible are usufruct, agency, case.
right to become a partner in a partnership, right to annuity, right to
revoke a donation by reason of ingratitude, commodatum, and Action to claim legitimacy or to obtain acknowledgment
gratuitous deposit. of illegitimacy
Also intransmissible are purely personal rights like In Conde v. Abaya, the Court held:
marital rights relating to persons or property, parental authority,
actions for legal separation, right to receive support, right to vote, With regard to the question at issue, that is, the
guardianship, right to hold public office, right to become a partner. transmission to the heirs of the presumed parents of the
obligation to admit the legitimate filiation, or to recognize the
natural filiation, there exists the most radical difference in that
a. Contracts of Lease
the former continues during the life of the child who claims to
Lease contracts, by their nature, are not personal. The be legitimate, and he may demand it either directly and
general rule, therefore, is lease contracts survive the death of the primarily from the said presumed parents, or indirectly and
parties and continue to bind the heirs except if the contract states secondarily from the heirs of the latter; while the second does
otherwise. In Sui Man Hui Chan v. Court of Appeals, it was held not endure for life; as a general rule, it only lasts during the life
that: of the presumed parents.  Hence the other difference, derived as
a consequence, that an action for legitimacy is always brought
A lease contract is not essentially personal in against the heirs of the presumed parents in case of the death of
character. Thus, the rights and obligations therein are the latter, while the action for acknowledgment is not brought
transmissible to the heirs. The general rule, therefore, is that against the heirs of such parents, with the exception of the two
heirs are bound by contracts entered into by their predecessors- cases prescribed by article 137 transcribed above.
in-interest except when the rights and obligations arising So much for the passive transmission of the
therefrom are not transmissible by (1) their nature, (2) obligation to admit the legitimate filiation, or to acknowledge
stipulation or (3) provision of law. the natural filiation.
As to the transmission to the heirs of the child of
the latter's action to claim his legitimacy, or to obtain the
b. Insurance Policy
acknowledgment of his natural filiation, it is seen that the code
A policy of insurance upon life or health may pass by grants it in the first case, but not in the second.  It contains
transfer, will or succession to any person, whether he has an provisions for the transmission of the right of action which, for
insurable interest or not, and such person may recover whatever the the purpose of claiming his legitimacy inheres in the Child, but
insured might have recovered [Great Pacific Life v. Court of it does not say a word with regard to the transmission of the
Appeals]. right to obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two
c. Actions above-cited articles is:  (1) That the right of action which
devolves upon the  child to claim his legitimacy under article
The question as to whether an action survives or not
118, may be  transmitted to his heirs in certain cases designated
depends on the nature of the action and the damage sued for. In the in the said article; (2) That the right of action for the
causes of action which survive the wrong complained affects acknowledgment of natural children to which article 137 refers,
primarily and principally property and property rights, the injuries can never be transmitted, for the reason that the code makes no
to the person being merely incidental, while in the causes of action mention of it in any case, not even as an exception.
which do not survive the injury complained of is to the person, the It is most illogical arid contrary to every rule of
correct interpretation, that the right of action to secure

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 acknowledgment by the natural child should be presumed to be these institutions.  From the Roman concept of a relation from
transmitted, independently, as a rule, to his heirs, while the right person to person, the obligation has evolved into a relation from
of action to claim legitimacy from his predecessor is not patrimony to patrimony, with the persons occupying only a
expressly, independently, or, as a general rule, conceded to the
representative position, barring those rare cases where the
heirs of the legitimate child, but only relatively and as an
exception.  Consequently, the pretension that the right of action obligation is strictly personal, i. e., is contracted intuitu personae,
on the part of the child to obtain the acknowledgment of his in consideration of its performance by a specific person and by no
natural filiation is transmitted to his descendants is altogether other [Alvarez v. IAC].
unfounded.  No legal provision exists to sustain such pretension, Liu v. Loy, Jr.
nor can an argument of presumption be based on the lesser claim Held: As we held in our Decision, a prior contract to sell made
when there is no basis for the greater one, and when it is only by the decedent during his lifetime prevails over a subsequent contract of
given as an exception in well-defined cases.  It is placing the sale made by the administrator without probate court approval.  It is
heirs of the natural child on a better footing than the heirs of the immaterial if the prior contract is a mere contract to sell and does not
legitimate one, when, as a matter of fact, the position of a immediately convey ownership. Frank Liu’s contract to sell became valid
natural child is no better than, nor even equal to, that of a and effective upon its execution and bound the estate to convey the property
legitimate child. upon full payment of the consideration.
From the express and precise precepts of the code the
following conclusions are derived:
The right of action that devolves upon the child to Pamplona v. Moreto
claim his legitimacy lasts during his whole life, while the right Held: The title may be pro-indiviso or inchoate but the moment
to claim the acknowledgment of a natural child lasts only during the co-owner as vendor pointed out its location and even indicated the
the life of his presumed parents. boundaries over which the fences were to be erected without objection,
Inasmuch as the right of action accruing to the child protest or complaint by the other co-owners, on the contrary they
to claim his legitimacy lasts during his whole life, he may acquiesced and tolerated such alienation, occupation and possession, We
exercise it either against the presumed parents, or their heirs; rule that a factual partition or termination of the co-ownership, although
while the right of action to secure the acknowledgment of a partial, was created, and barred not only the vendor, Flaviano Moreto, but
natural child, since it does not last during his whole life, but also his heirs, the private respondents herein from asserting as against the
depends on that of the presumed parents, as a general rule can vendees-petitioners any right or title in derogation of the deed of sale
only be exercised against the latter. executed by said vendor Flaviano Moreto.
Usually the right of action for legitimacy devolving Under Article 776, New Civil Code, the inheritance which
upon the child is of a personal character and pertains exclusively private respondents received from their deceased parents and/or
to him, only the child may exercise it at any time during his predecessors-in-interest included all the property rights and obligations
lifetime.  As an exception, and in three cases only, it may be which were not extinguished by their parents' death.  And under Art. 1311,
transmitted to the heirs of the child, to wit, if he died during his paragraph 1, New Civil Code, the contract of sale executed by the deceased
minority, or  while insane, or after action had been already Flaviano Moreto took effect between the parties, their assigns and heirs,
instituted. who are the private respondents herein.  Accordingly, to the private
An action for the acknowledgment of a natural child respondents is transmitted the obligation to deliver in full ownership the
may, as an exception, be exercised against the heirs of the whole area of 781 sq. meters to the petitioners (which was the original
presumed parents in two cases:  first, in the event of the death of obligation of their predecessor Flaviano Moreto) and not only one-half
the latter during the minority of the child, and second, upon the thereof.  Private respondents must comply with said obligation.
discovery of some instrument, of express acknowledgment of
the child, executed by the father or mother, the existence of Genato v. Bayhon
which was unknown during the life of the latter. Held: The loan in this case was contracted by respondent. He
But such action for the acknowledgment of a natural died while the case was pending before the Court of Appeals. While he may
child can only be exercised by him.  It can not be transmitted to no longer be compelled to pay the loan, the debt subsists against his estate.
his descendants, or to his ascendants. No property or portion of the inheritance may be transmitted to his heirs
unless the debt has first been satisfied. Notably, throughout the appellate
3. Obligations stage of this case, the estate has been amply represented by the heirs of the
In general, all obligations are transmissible [Araneta v. deceased, who are also his co-parties in Civil Case No. Q-90-7012.
Montelibano] unless purely personal (like the obligation to support)
or non-transferable by law or contract. Hence, it is proper to say, Article 777. The rights to the succession are transmitted
from one viewpoint, that an heir still pays for the debts of his from the moment of the death of the decedent.
deceased father, but only if same can be covered by the inheritance.
Thus, if a father leaves P100 million as assets and P20 million as It is true that death transfers the rights to the succession
debts, the heir really collects only P80 million. Upon the other — but only if the following conditions are present, namely:
hand, if the debt was P120 million, the heir is not required to pay (a) that indeed there has been a death (either actual or
the balance of P20 million. presumed)
The binding effect of contracts upon the heirs of the (b) that the rights or properties are indeed transmissible
deceased party is not altered by the provision of our Rules of Court or descendible
that money debts of a deceased must be liquidated and paid from (c) that the transferee is still alive (no predecease),
his estate before the residue is distributed among said heirs (Rule willing (no repudiation), is capacitated to inherit.
89).  The reason is that whatever payment is thus made from the
state is ultimately a payment by the heirs or distributees, since the The rights to the succession are transmitted from the
amount of the paid claim in fact diminishes or reduces the shares moment of death of the decedent. The estate of the decedent would
that the heirs would have been entitled to receive [Estate of then be held in co-ownership by the heirs. The co-heir or co-owner
Hemady v. Luzon Surety]. may validly dispose of his share or interest in the property subject
Under our law, therefore, the general rule is that a party's to the condition that the portion disposed of is eventually allotted to
contractual rights and obligations are transmissible to the him in the division upon termination of the co-ownership [Vda. De
successors The rule is a consequence of the progressive Reyes v. Court of Appeals].
‘depersonalization’ of patrimonial rights and duties that, as Article 777 operates at the very moment of the decedent's
observed by Victorio Polacco, has characterized the history of death meaning that the transmission by succession occurs at the

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precise moment of death and, therefore, at that precise time, the The above-quoted rules, while permitting an executor or
heir is already legally deemed to have acquired ownership of administrator to represent or to bring suits on behalf of the deceased, do not
his/her share in the inheritance, "and not at the time of declaration prohibit the heirs from representing the deceased.  These rules are easily
of heirs, or partition, or distribution." Thus, there is no legal bar to applicable to cases in which an administrator has already been
appointed.  But no rule categorically addresses the situation in which
an heir disposing of his/her hereditary share immediately after such
special proceedings for the settlement of an estate have already been
death [Sps. Salitico v. Heirs of Felix]. instituted, yet no administrator has been appointed.  In such instances,
the heirs cannot be expected to wait for the appointment of an
Balus v. Balus administrator; then wait further to see if the administrator appointed would
Held: At the outset, it bears to emphasize that there is no dispute care enough to file a suit to protect the rights and the interests of the
with respect to the fact that the subject property was exclusively owned by deceased; and in the meantime do nothing while the rights and the
petitioner and respondents' father, Rufo, at the time that it was mortgaged in properties of the decedent are violated or dissipated.
1979. This was stipulated by the parties during the hearing conducted by Even if there is an appointed administrator, jurisprudence
the trial court on October 28, 1996. [12] Evidence shows that a Definite Deed recognizes two exceptions, viz: (1) if the executor or administrator is
of Sale[13] was issued in favor of the Bank on January 25, 1984, after the unwilling or refuses to bring suit; and (2) when the administrator is alleged
period of redemption expired. There is neither any dispute that a new title to have participated in the act complained of and he is made a party
was issued in the Bank's name before Rufo died on July 6, 1984. Hence, defendant.  Evidently, the necessity for the heirs to seek judicial relief to
there is no question that the Bank acquired exclusive ownership of the recover property of the estate is as compelling when there is no appointed
contested lot during the lifetime of Rufo. administrator, if not more, as where there is an appointed administrator but
The rights to a person's succession are transmitted from the he is either disinclined to bring suit or is one of the guilty parties himself.
moment of his death. In addition, the inheritance of a person consists of the
property and transmissible rights and obligations existing at the time of his
Emnace v. Court of Appeals
death, as well as those which have accrued thereto since the opening of the
Held: Petitioner's objection in this regard is misplaced. The
succession. In the present case, since Rufo lost ownership of the subject
surviving spouse does not need to be appointed as executrix or
property during his lifetime, it only follows that at the time of his death, the
administratrix of the estate before she can file the action. She and her
disputed parcel of land no longer formed part of his estate to which his
children are complainants in their own right as successors of Vicente
heirs may lay claim. Stated differently, petitioner and respondents never
Tabanao. From the very moment of Vicente Tabanao's death, his rights
inherited the subject lot from their father.
insofar as the partnership was concerned were transmitted to his heirs, for
Petitioner and respondents, therefore, were wrong in assuming
rights to the succession are transmitted from the moment of death of the
that they became co-owners of the subject lot. Thus, any issue arising from
decedent.
the supposed right of petitioner as co-owner of the contested parcel of land
Whatever claims and rights Vicente Tabanao had against the
is negated by the fact that, in the eyes of the law, the disputed lot did not
partnership and petitioner were transmitted to respondents by operation of
pass into the hands of petitioner and respondents as compulsory heirs of
law, more particularly by succession, which is a mode of acquisition by
Rufo at any given point in time.
virtue of which the property, rights and obligations to the extent of the
value of the inheritance of a person are transmitted. Moreover, respondents
Locsin v. Court of Appeals became owners of their respective hereditary shares from the moment
Held: The trial court and the Court of Appeals erred in declaring Vicente Tabanao died.
the private respondents, nephews and nieces of Doña Catalina J. Vda. de A prior settlement of the estate, or even the appointment of
Locsin, entitled to inherit the properties which she had already disposed of Salvacion Tabanao as executrix or administratrix, is not necessary for any
more than ten (10) years before her death. For those properties did not form of the heirs to acquire legal capacity to sue. As successors who stepped into
part of her hereditary estate, i.e., "the property and transmissible rights and the shoes of their decedent upon his death, they can commence any action
obligations existing at the time of (the decedent's) death and those which originally pertaining to the decedent. From the moment of his death, his
have accrued thereto since the opening of the succession.” The rights to a rights as a partner and to demand fulfillment of petitioner's obligations as
person's succession are transmitted from the moment of his death, and do outlined in their dissolution agreement were transmitted to respondents.
not vest in his heirs until such time. Property which Doña Catalina had They, therefore, had the capacity to sue and seek the court's intervention to
transferred or conveyed to other persons during her lifetime no longer compel petitioner to fulfill his obligations.
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 1. Actual Death
at the time of her death devolved to her legal heirs; and even if those
Actual death is the irreversible cessation of circulatory
transfers were, one and all, treated as donations, the right arising under
certain circumstances to impugn and compel the reduction or revocation of and respiratory functions or the irreversible cessation of all
a decedent's gifts inter vivos does not inure to the respondents since neither functions of the entire brain (RA 7170).
they nor the donees are compulsory (or forced) heirs. If a decedent dies on July 5, 2002, and the property is
There is thus no basis for assuming an intention on the part of actually delivered to the heir only on Aug. 4, 2002 — the heir,
Doña Catalina, in transferring the properties she had received from her late unless otherwise disqualified, becomes the owner and possessor of
husband to his nephews and nieces, an intent to circumvent the law in the property, beginning July 5, 2002. This is because it is not
violation of the private respondents' rights to her succession. Said tradition (delivery) that transfers ownership here, but succession.
respondents are not her compulsory heirs, and it is not pretended that she
Moreover, the effects of an acceptance (of the inheritance) retroact
had any such, hence there were no legitimes that could conceivably be
impaired by any transfer of her property during her lifetime. to the moment of death. (Art. 1042). If, upon the other hand,
instead of acceptance, there is repudiation, it is as if the heir never
owned, never possessed the property, also because of the
Riferio v. Court of Appeals
retroactive effect of a repudiation. (See Art. 1042). In the last case,
Held: Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the estate of
in the absence of any other heir, the State inherits the property, and
the decedent in accordance with the provision of Article 777 of the New the same will be considered patrimonial.
Civil Code “that (t)he rights to succession are transmitted from the moment
of the death of the decedent.” The provision in turn is the foundation of the 2. Presumptive Death
principle that the property, rights and obligations to the extent and value of There are two kinds of presumed death under the law, the
the inheritance of a person are transmitted through his death to another or ordinary presumption (caused by an “ordinary absence’’) and an
others by his will or by operation of law. extraordinary presumption (caused by an “extraordinary or
Even if administration proceedings have already been
qualified absence”).
commenced, the heirs may still bring the suit if an administrator has not yet
been appointed. 
a. Ordinary Presumption
Page 5 of 24
 Article 390 of the Civil Code provides:
Article 392. If the absentee appears, or without
Article 390. After an absence of seven years, it being appearing his existence is proved, he shall recover his property
unknown whether or not the absentee still lives, he shall be in the condition in which it may be found, and the price of any
presumed dead for all purposes, except for those of succession. property that may have been alienated or the property acquired
The absentee shall not be presumed dead for the therewith; but he cannot claim either fruits or rents. (194)
purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an Article 778. Succession may be:
absence of five years shall be sufficient in order that his (1) Testamentary;
succession may be opened. (n) (2) Legal or intestate; or
(3) Mixed. (n)
Here, the death is presumed to have occurred at the end
of the 10- year or 5-year period as the case may be. Article 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed in the form
b. Extraordinary Presumption prescribed by law.
Article 391 provides:
(a) Testamentary succession may be done thru a will or
Article 391. The following shall be presumed dead thru a codicil.
for all purposes, including the division of the estate among the (b) The will or codicil may be:
heirs:
(1) A person on board a vessel lost during a sea (1) notarial (ordinary, attested, or acknowledged)
voyage, or an aeroplane which is missing, who has not been (2) holographic (handwritten by the testator from
heard of for four years since the loss of the vessel or aeroplane; beginning to end, complete with date and signature)
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(c) In case of doubt, testamentary succession is preferred
(3) A person who has been in danger of death under
other circumstances and his existence has not been known for
to legal or intestate succession. (See Art. 791).
four years. (n)
Our jurisdiction accords great respect to the testator's
It has been held that the person is presumed to have died freedom of disposition. Hence, testate succession has always been
at the time of the disappearance, that is, at the time the calamity preferred over intestacy. As much as possible, a testator's will is
took place, and not at the end of 4 years. In other words, at the end treated and interpreted in a way that would render all of its
of 4 years, the presumption will arise that death had occurred 4 provisions operative. Hence, there is no basis to apply the
years before. Thus, a member of the Philippine Armed Forces, provisions on intestacy when testate succession evidently applies
Geronimo Gonzales, who was said to be “missing in action” when [Hacbang v. Alo].
our Army surrendered to the Japanese on May 7, 1942, was
presumed to have died on or before said date (May 7, 1942), and Rodriguez v. Borja
not later [Judge Advocate General v. Gonzales]. Held: Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil.
In both ordinary or extraordinary absences, the 307 "only after final decision as to the nullity of testate succession could an
intestate succession be instituted in form of pre-established action". The
succession is only of provisional character because there is always
institution of intestacy proceedings in Rizal may not thus proceed while the
the chance that the absentee may still be alive. Moreover, the probate of the purported will of Father Rodriguez is pending.
presumptions regarding the time of death are rebuttable, that is, We rule that the Bulacan Court of First Instance was entitled to
proof may be presented as to when death actually occurred. priority in the settlement of the estate in question, and that in refusing to
dismiss the probate proceedings, said Court did not commit any abuse of
Eastern Shipping v. Lucero discretion. It is the proceedings in the Rizal Court that should be
Held: It is undisputed that on February 16, 1980, the Company discontinued.
received three (3) radio messages from Capt. Lucero on board the M/V
Eastern Minicon, the last of which, received at 9:50 p.m. of that day, was a Article 780. Mixed succession is that effected partly by will
call for immediate assistance in view of the existing "danger": "sea water and partly by operation of law. (n)
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,
The decedent may have died partly testate and partly
nothing more has been heard from the vessel or its crew until the present
time. intestate. Insofar as the will disposes of certain properties, this is
There is thus enough evidence to show the circumstances generally the law that should govern [Parish Priest v. Rigor].
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 Article 781. The inheritance of a person includes not only the
moral certainty that the vessel had sunk and that the persons aboard had property and the transmissible rights and obligations existing at the
perished with it. Upon this premise, the rule on presumption of death under time of his death, but also those which have accrued thereto since the
Article 391(1) of the Civil Code must yield to the rule of preponderance of opening of the succession. (n)
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
Note that property acquired by the testator between the
presumption does not step in, and the rule of preponderance of evidence
controls."
time the will is made and the time he dies, is NOT given to the
Indeed, We cannot permit Article 391 to override, or be designated heir unless the contrary has been expressly provided.
substituted for, the facts established in this case which logically indicate to (Art. 793). Such property is acquired PRIOR to the death, not
a moral certainty that Capt. Lucero died shortly after he had sent his last afterwards.
radio message at 9:50 p.m. on February 16, 1980.
Heirs of Natividad v. Mauricio-Natividad
c. Effect of Absentee’s Return or Appearance Held: In the present case, respondents, being heirs of Sergio, are
Article 392 provides: now liable to settle his transmissible obligations, which include the amount

Page 6 of 24
due to petitioners, prior to the distribution of the remainder of Sergio's The will is strictly a personal act in all matters that are
estate to them, in accordance with Section I, Rule 90 of the Rules of Court. essential. Since the will expresses the manner in which a person
intends how his properties be disposed, the wishes and desires of
Article 782. An heir is a person called to the succession the testator must be strictly followed. Thus, a will cannot be the
either by the provision of a will or by operation of law. subject of a compromise agreement which would thereby defeat the
Devisees and legatees are persons to whom gifts of real and very purpose of making a will [Rabadilla v. Court of Appeals].
personal property are respectively given by virtue of a will. (n) The mechanical act of drafting may be entrusted to
another, as long as the disposition itself expresses the testator’s
While in general, there is no difference in capacity, desires, and all the formalities of the law are complied with, such
effect, and solemnities, still, one important distinction must be as the signing by the testator and the witnesses (in the case of a
pointed out, namely — that while in preterition (Art. 854) an notarial will), or the copying by the testator in his own handwriting
instituted voluntary heir gets nothing, a legatee or devisee still gets (in the case of the holographic will).
the property given as long as the legitime is not impaired.
b. Animus Testandi
Heirs Legatees or Devisees There must be animus testandi (intent to make a will).
Succeed by general right or Succeed by special or particular
universal title to all or an aliquot title
c. Statutory
part of the estate
Heirs exist both in testamentary Legatees and devisees exist only The making of a will is a statutory (not a natural) right.
succession and intestate in testamentary succession This is evident from the clause “permitted . . . to control to a
succession certain degree.” The consequence of this is that the making of a
The heir, if compulsory, succeeds Legatees and devisees success will should be considered subordinated to both the law and public
to the inheritance regardless of the only by testator’s will policy [Herreros v. Gil].
will of the decedent
Quantity cannot be determined Quantity can be easily determined
until after the liquidation of d. Solemn
properties of the estate It is a solemn or formal act (executed in accordance with
Heirs represent the juridical Legatees and devisees do not the formalities prescribed by law). (See Art. 783).
personality of the deceased, represent the juridical personality
acquiring his property, rights, and of the deceased because they only
obligations acquire properties e. Unilateral
Heirs succeed to the remained of Legatees and devisees succeed It is a unilateral act. (This means that no acceptance by
the estate after all the debts, only to the determinate thing or the transferees is needed while the testator is still alive; any
devisees and legatees have been amount given acceptance made prematurely is useless.)
paid
f. Capacity
II The testator must be capacitated to make a will. (Arts.
TESTAMENTARY SUCCESSION 796-798)
Under our law, when we talk about the requisites for
A. WILLS testamentary capacity: first is that the testator must be atleast 18
years of age; and second, is that he must be of sound mind.
1. Wills in General
g. Freedom from Vitiated Consent
Article 783. A will is an act whereby a person is permitted, It is free from vitiated consent, i.e., it must have been
with the formalities prescribed by law, to control to a certain degree executed freely, knowingly, and voluntarily, otherwise it will be
the disposition of his estate, to take effect after his death. (667a) disallowed. (Art. 839).

The essential elements of a will (PASS-U-C-FRIDM) h. Revocable

are: The will is essentially revocable by the testator, any time
during his lifetime. In fact, it is not required that there be a valid
a. Personal ground for him to change his mind, to change the provisions in his
b. Animus testandi earlier will. Even for the most absurd reason or for no reason at all,
c. Statutory he may revoke his previously executed will, and make another one.
d. Solemn
e. Unilateral i. Individual
f. Capacity It is an individual (as distinguished from a joint) act (if
g. Freedom from vitiated consent executed by a Filipino, whether in the Philippines or abroad). (See
h. Revocable - during the lifetime of the testator Arts. 818 and 819).
i. Individual
j. Disposition of property j. Disposition of Property
k. Mortis causa It disposes of the testator’s estate (whether totally or
partially) in accordance with his wishes (“to a certain degree” only,
a. Personal because legitimes are reserved for compulsory heirs).
There are two kinds of disposition. We have direct
Article 784. The making of a will is a strictly personal act; it disposition, wherein there is an actual provision in the last will and
cannot be left in whole or in part to the discretion of a third person, or testament which states that this person is entitled to this property,
accomplished through the instrumentality of an agent or attorney. or this person is entitled to an aliquot share of the estate.
The second kind of disposition is indirect disposition,
wherein the will disposes of the properties by inference or

Page 7 of 24
implication. An example is a document which only provides for obligation with a term, the term being death.  Such agreements are
disinheritance. There is indirect disposition therein and it is permitted by the Civil Code
considered as a will.
If the will does not dispose of property, such as when a Article 785. The duration or efficacy of the designation of
person is merely named executor, or when a natural child is heirs, devisees or legatees, or the determination of the portions which
recognized, while the instrument may in one sense still be called a they are to take, when referred to by name, cannot be left to the
will, still such will need not be probated, for under our law, it discretion of a third person. (670a)
would seem that a probate is needed only if property is to be
conveyed by testamentary succession. (See Art. 838). Furthermore, This provision reinforces the rule that the making of a
it has been held that for the purpose of recognizing a natural child will is strictly a personal act. If, for example, the testator says “I
by virtue of a will, the will need not be probated though it must, of give my land to X for as long as my friend Y allows,’’ this would
course, still be a valid will [Onyaga v. Omilia]. be a clear case of illegal delegation of testamentary power.

Dy Yieng Seangio v. Reyes Article 786. The testator may entrust to a third person the
Held: Segundo's document, although it may initially come distribution of specific property or sums of money that he may leave in
across as a mere disinheritance instrument, conforms to the formalities of a general to specified classes or causes, and also the designation of the
holographic will prescribed by law. It is written, dated and signed by the persons, institutions or establishments to which such property or sums
hand of Segundo himself. An intent to dispose mortis causa can be clearly of money are to be given or applied. (671a)
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, This Article does not really contradict the preceding one,
nonetheless, is an act of disposition in itself. In other words, the for in Art. 786 the particular names are not designated whereas in
disinheritance results in the disposition of the property of the testator Article 785, the names of particular persons are given. Moreover,
Segundo in favor of those who would succeed in the absence of Alfredo.
in Article 786, a class or a cause is what is specified.
An example of specified class is the high school seniors
Merza v. Porras class in the Poveda Learning Centre or the first ten topnotchers in
Held: testamentary disposition.  In the absence of any legal the bar examinations.
provision to the contrary—and there is none in this jurisdiction—it is the
An example of a specific cause is for a charitable
general, well-established rule that two separate and distinct wills may be
institution. In this cases, the distribution (partition or delivery) and
probated if one does not revoke the other (68 C. J., 885) and provided that
the statutory requirements relative to the execution of wills have been the designation of who will receive, and how much (as long as they
complied with (Id. 881).  As seen, Exhibit B embodies all the requisites of a fall within the class or cause; and as long as specific property or a
will, even free of such formal or literary imperfections as are found in sum of money — [say P5 million] — has been set aside for the
Exhibit A. purpose) can be entrusted to a third person.
It also follows that Exhibit B is a legal and effective vehicle for
excluding lawful heirs from testate or intestate succession.  Article 849 of Article 787. The testator may not make a testamentary
the Civil Code of Spain does not, as the appealed decision seems to disposition in such manner that another person has to determine
insinuate, require that the disinheritance should be accomplished in the whether or not it is to be operative. (n)
same instrument by which the maker provides for the disposition of his or
her property after his or her death.  This article merely provides that
"disinheritance can be effected only by a will (any will) in which the legal This Article strengthens the rule that the making of a will
cause upon which it is based is expressly stated." is strictly a personal act.
It is our judgment therefore that the instruments Exhibits A and
B should be admitted to probate, subject of course to the right of the Article 788. If a testamentary disposition admits of different
disinherited person under article 850 to contest the disinheritance, and it is interpretations, in case of doubt, that interpretation by which the
so ordered, with costs against the appellee. disposition is to be operative shall be preferred. (n)

k. Mortis Causa The provision applies only in case of DOUBT. If no

It is effective mortis causa (i.e., it produces effects only doubt exists, and the disposition is clearly illegal, same should not
after the death of the testator — hence, the will is termed be given effect. The intention and desires of the testator if clearly
“ambulatory”). (Art. 777). expressed in the will, constitute the fixed law of its interpretation
[Vda de Villanueva v. Juico].
Vitug v. Court of Appeals
Held: The conveyance in question is not, first or all, one Article 789. When there is an imperfect description, or when
of mortis causa, which should be embodied in a will.  A will has been no person or property exactly answers the description, mistakes and
defined as "a personal, solemn, revocable and free act by which a omissions must be corrected, if the error appears from the context of
capacitated person disposes of his property and rights and declares or the will or from extrinsic evidence, excluding the oral declarations of
complies with duties to take effect after his death." In other words, the the testator as to his intention; and when an uncertainty arises upon
bequest or device must pertain to the testator. In this case, the monies the face of the will, as to the application of any of its provisions, the
subject of savings account No. 35342-038 were in the nature of conjugal testator’s intention is to be ascertained from the words of the will,
funds.  taking into consideration the circumstances under which it was made,
Certainly, the spouses are not prohibited by law to invest excluding such oral declarations. (n)
conjugal property, say, by way of a joint and several bank account, more
commonly denominated in banking parlance as an "and/or" account.  In the
a. Latent or Intrinsic Ambiguity
case at bar, when the spouses Vitug opened savings account No. 35342-
038, they merely put what rightfully belonged to them in a money-making This is an ambiguity that does not appear on the face of
venture.  They did not dispose of it in favor of the other which would have the will, and is discovered only by extrinsic evidence. Example: “I
arguably been sanctionable as a prohibited donation.  And since the funds institute my brother-in-law” (when it is discovered that I have two
were conjugal, it can not be said that one spouse could have pressured the brothers-in-law). This ambiguity is not found in the will itself,
other in placing his or her deposits in the money pool. which is clear. The doubt arises only because of things outside the
The validity of the contract seems debatable by reason of its will.
"survivor-take-all" feature, but in reality, that contract imposed a mere

Page 8 of 24
 In a will, this kind of ambiguity arises: (1) when there is The will must be interpreted as a whole. While testacy is
an imperfect description of the heir, legatee, or devisee; (2) when preferred over intestacy, this is true only if the will has been validly
there is an imperfect description of the gift being given; (3) when made.
only one recipient is designated but it turns out that there are two or Testacy is favored.  Doubts are resolved in favor of
more who fit the description. testacy especially where the will evinces an intention on the part of
This may be cured BY EXAMINING: (1) the will itself the testator to dispose of practically his whole estate.  So
or (2) extrinsic evidence such as written declarations of the testator. compelling is the principle that intestacy should be avoided and
NOTE: Extrinsic evidence taken from the alleged ORAL that the wishes of the testator should prevail that sometimes the
declarations of the testator should NOT be allowed, as this can language of the will can be varied for the purpose of giving it effect
result in fraud, confusion, and unfairness to the dead man whose [Balanay, Jr. v. Martinez].
words may be distorted or perjured.
Dizon-Rivera v. Dizon
b. Patent or Extrinsic Ambiguity Held: The burden of oppositors' contention is that the testamen-
This is an ambiguity that appears on the face of the will tary dispositions in their favor are in the nature of devises of real property,
itself; in other words, by examining the provision itself, it is citing the testatrix' repeated use of the words "I bequeath" in her assignment
evident that it — is not clear. Example: “I hereby institute some of or distribution of her real properties to the respective heirs.  From this
erroneous premise, they proceed to the equally erroneous conclusion that
my seven brothers.” (It is evident here that we do not know how
"the legitime of the compulsory heirs passes to them by operation of law
many of the brothers are being instituted.) and that the testator can only dispose of the free portion, that is, the
In this case, extrinsic evidence, as well as the will itself remainder of the estate after deducting the legitime of the compulsory
may be examined (but not the oral declarations of the testator) to heirs .... and all testamentary dispositions, either in the nature of institution
ascertain the testator’s intent, but if after everything has been done, of heirs or of devises or legacies, have to be taken from the remain der of
the doubt still remains, not one of the seven brothers will get as the testator's estate constituting the free portion."
instituted heirs, because then, the heirs will be considered as Oppositors err in their premises, for the adjudications and
unknown persons under Art. 844, 2nd par. assignments in the testatrix' will of specific properties to specific heirs
cannot be considered all devises, for it clearly appears from the whole
context of the will and the disposition by the testatrix of her whole estate
Article 790. The words of a will are to be taken in their (save for some small properties of little value already noted at the
ordinary and grammatical sense, unless a clear intention to use them in beginning of this opinion) that her clear intention was to partition her whole
another sense can be gathered, and that other can be ascertained. estate through her will.  The repeated use of the words "I bequeath" in her
Technical words in a will are to be taken in their technical testamentary dispositions acquire no legal significance, such as to convert
sense, unless the context clearly indicates a contrary intention, or the same into devises to be taken solely from the free one-half disposable
unless it satisfactorily appears that the will was drawn solely by the portion of the estate.  Furthermore, the testatrix' intent that her testamentary
testator, and that he was unacquainted with such technical sense. dispositions were by way of adjudications to the beneficiaries as heirs and
(675a) 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
Ordinary words have their ordinary meanings except if the fourth paragraph of her will, immediately following her testamentary
there is a clear intention that another meaning was used — adjudications in the third paragraph in this wise:  "FOURTH:  I likewise
provided that other meaning can be determined. command that in case any of those I named as my heirs in this
Technical words have technical meanings except (a) if 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
there is a contrary intention; or (b) if it appears that the will was
said deceased."
drafted by the testator alone, who did not know the technical Oppositors' conclusions necessarily are in error.  The
meaning. testamentary dispositions of the testatrix, being dispositions in favor
If the testator’s intention is manifest from the context of of compulsory heirs, do not have to be taken only from the free portion of
the will and surrounding circumstances, but is obscured by inapt the estate, as contended, for the second paragraph of Article 842 of the
and inaccurate modes of expression, the language will be Civil Code precisely provides that "(One who has compulsory heirs may
subordinated to the intention; and in order to give effect to such dispose of his estate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs."  
intent, the court may depart from the strict wording, and read a
word or phrase in a sense different from that which is ordinarily
attributed to it, and for such purpose may mould or change the Article 792. The invalidity of one of several dispositions
language of the will, such as by restricting its application or 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
supplying omitted words or phrases [Rodriguez v. Court of
have made such other dispositions if the first invalid disposition had
Appeals]. not been made. (n)
The intention and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of interpretation, and
Even if one disposition or provision is invalid, it does not
all questions raised at the trial, relative to its execution and
necessarily follow that all the others are also invalid. The exception
fulfillment, must be settled in accordance therewith, following the
occurs when the various dispositions are indivisible in intent or
plain and literal meaning of the testator's words, unless
nature.
it clearly appears that his intention was otherwise [Vda de
Villanueva v. Juico].
Balanay, Jr. v. Martinez
Held: The statement of the testatrix that she owned the "southern
Article 791. The words of a will are to receive an half" of the conjugal lands is contrary to law because, although she was a
interpretation which will give to every expression some effect, rather coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil
than one which will render any of the expressions inoperative; and of Code; Madrgial and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). 
two modes of interpreting a will, that is to be preferred which will But that illegal declaration does not nullify the entire will.  It may be
prevent intestacy. disregarded.

Article 793. Property acquired after the making of a will

shall only pass thereby, as if the testator had possessed it at the time of

Page 9 of 24
making the will, should it expressly appear by the will that such was his
intention. (n) There are two kinds of validity:
(a) extrinsic validity
What are given by the will are only those properties (b) intrinsic validity
already possessed and owned by the testator at the time the will
was made, not those acquired after (“after-acquired property”). a. Formal or Extrinsic Validity
i. From the viewpoint of TIME — what must be
Exceptions observed is the law in force at the time the will
Here, the after-acquired properties are also given to the is MADE (executed). (Art. 795).
persons designated in the will:
(a) If it expressly appears in the will that it was the The above provision is but an expression or statement of
intention to give such “after-acquired” properties. the weight of authority to the effect that the validity of a will is to
(b) If the will is republished or modified by a subsequent be judged not by the law enforce at the time of the testator's death
will or codicil (in which case, the properties owned at the time of or at the time the supposed will is presented in court for probate or
such republication or modification shall be given). (Art. 836). when the petition is decided by the court but at the time the
(c) If at the time the testator made the will he erroneously instrument was executed. One reason in support of the rule is that
thought that he owned certain properties, the gift of said properties although the will operates upon and after the death of the testator,
will not be valid, unless after making the will, said properties will the wishes of the testator about the disposition of his estate among
belong to him. (See Art. 930). 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
Balanay, Jr. v. Martinez becomes a completed act [Vda de Enriquez v. Abadia].
Held: Under article 930 of the Civil Code "the legacy or devise
of a thing belonging to another person is void, if the testator erroneously ii. From the viewpoint of PLACE or COUNTRY
believed that the thing pertained to him.  But if the thing bequeathed, — what law must be observed depends:
though not belonging to the testator when he made the will, afterwards - If the testator is a Filipino, he can observe
becomes his, by whatever title, the disposition shall take effect. Philippine laws (Arts. 804-814); or those
In the instant case there is no doubt that the testatrix and her
in the country where “he may be” (Art.
husband intended to partition the conjugal estate in the manner set forth in
paragraph V of her will.  It is true that she could dispose of by will only her 815); or those in the country where he
half of the conjugal estate (Art. 170, Civil Code) but since the husband, executes the will (Art. 17) (lex loci
after dissolution of the conjugal partnership, had assented to her celebrationis or locus regit actum)
testamentary partition of the conjugal estate, such partition has become - If the testator is an alien who is abroad, he
valid, assuming that the will may be probated. can follow the law of his domicile, or his
nationality or Philippine laws (Art. 816)
(d) Legacies of credit or remission are effective only as or where he executes the will. (Art. 17).
regards that part of the credit or debt existing at the time of the - If the testator is an alien in the
death of the testator. (Art. 935, par. 1). Philippines, he can follow the law of his
nationality (Art. 817) or the laws of the
Article 794. Every devise or legacy shall convey all the Philippines, since he executes the will
interest which the testator could devise or bequeath in the property here. (Art. 17).
disposed of, unless it clearly appears from the will that he intended to
convey a less interest. (n) b. Intrinsic Validity
As a general rule, the probate court's authority is limited
The entire interest of the testator in the property is given only to the extrinsic validity of the will, the due execution thereof,
— not more, not less. the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
Exceptions the will normally comes only after the court has declared that the
(a) He can convey a lesser interest if such intent clearly will has been duly authenticated. However, where practical
appears in the will. (Art. 794). considerations demand that the intrinsic validity of the will be
(b) He can convey a greater interest, thus, the law passed upon, even before it is probated, the court should meet the
provides “If the testator … owns only a part of, or an interest in the issue [Cayetano v. Leonidas].
thing bequeathed, the legacy or devise shall be understood limited
to such part or interest, UNLESS the testator expressly declares i. From the viewpoint of TIME — successional
that he gives the thing in its entirety.” (Art. 929). rights are governed by the law in force at the
(c) He can even convey property which he very well time of the DECEDENT’S DEATH. (See Art.
know does not belong to him (See Arts. 930 and 931), provided 2263).
that it also does not belong to the legatee or devisee. (See Art. 937). ii. From the viewpoint of PLACE or COUNTRY
Art. 931 provides: “If the testator orders that a thing — the national law of the decedent, that is, the
belonging to another be acquired in order that it be given to a law of his country or nationality (Art. 16) —
legatee or devisee, the heir upon whom the obligation is imposed or regardless of the place of execution or the place
the estate must acquire it and give the same to the legatee or of death [Miciano v. Brimo]. Thus, a proviso in
devisee; but if the owner of the thing refuses to alienate the same or the will of an alien to the effect that his
demands an excessive price therefor, the heirs or the estate shall properties should be distributed in accordance
only be obliged to give the just value of the thing.” with internal Philippine law, and not in
accordance with his own national law, is void
Article 795. The validity of a will as to its form depends upon because said proviso contravenes Art. 16, par.
the observance of the law in force at the time it is made. (n) 2 of the Civil Code [Bellis v. Bellis]. However,

Page 10 of 24
 if the conflict rules under the national law of Held: If the law on succession and the conflict of, law rules of
the deceased refer the matter to the law of the California are to be enforced jointly, each in its own intended and
domicile and the foreigner was domiciled in appropriate sphere, the principle cited In re Kaufman should apply to
the Philippines at the moment of death, our 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
courts will have to apply the Philippine internal
rule laid down of resorting to the law of the domicile in the determination
law on succession. (This is an instance where of matters with foreign element involved is in accord with the general
we ACCEPT THE RENVOI which is the principle of American law that the domiciliary law should govern in most
referring back to the forum of the problem.) matters or rights which follow the person of the owner.
"When a man dies leaving personal property in one or more
Cayetano v. Leonidas states, and leaves a will directing the manner of distribution of the property,
Held: Although on its face, the will appeared to have preterited the law of the state where he was domiciled at the time of his death win be
the petitioner and thus, the respondent judge should have denied its looked to in deciding legal questions about the will, almost as completely as
reprobate outright, the private respondents have sufficiently established that the law of the situs is consulted in questions about the devise of land. It is
Adoracion was, at the time of her death, an American citizen and a logical that, since the domiciliary rules control devolution of the personal
permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under estate in ease of intestate succession, the same rules should determine the
Article 16 par. (2) and 1039 of the Civil which respectively provide: validity of an attempted testamentary disposition of the property. Here,
Art. 16 par. (2). also, it is not that the domiciliary has effect beyond the borders of the
xxx    xxx       xxx domiciliary state. The rules of the domicile are recognized as controlling by
"However, intestate and testamentary successions, both with the Conflict of Laws rules at the situs of the property, and the reason for the
respect to the order of succession and to the amount of successional rights recognition as in the case of intestate succession, is the general convenience
and to the intrinsic validity of testamentary provisions, shall be regulated by of the doctrine. The New York court has said on the point; 'The general
the national law of the person whose succession is under consideration, principle that a disposition of personal property, valid at the domicile of the
whatever may be the nature of the property and regardless of the country owner, is valid everywhere, is one of universal application. It had its origin
wherein said property may be found."' in that international comity which was one of the first fruits of civilization,
Art. 1039. and in this age, when business intercourse and the process of accumulating1
"Capacity to succeed is governed by the law of the nation of the property take but little notice of boundary lines, the practical wisdom and
decedent." justice of the rule is more apparent than ever.'" (Goodrich, Conflict of
the law which governs Adoracion Campo's will is the law of Laws, Sec. 164, pp. 442-443.)
Pennsylvania, U.S.A., which is the national law of the decedent. Although Appellees argue that what Article 16 of the Civil Code of the
the parties admit that the Pennsylvania law does not provide for legitimes Philippines pointed out as the national law is the internal law of California .
and that all the estate may be given away by the testatrix to a complete But as above explained, the laws of California have prescribed two sets of
stranger, the petitioner argues that such law should not apply because it laws for its citizens, one for residents therein and. another for those
would be contrary to the sound and established public policy and would run domiciled in other jurisdictions. Reason demands that We should enforce
counter to the specific provisions of Philippine Law. the California , internal law prescribed for its citizens residing therein, and
It is a settled rule that as regards the intrinsic validity of the enforce the conflict of law rules law for the citizens domiciled abroad. If we
provisions of the will, as provided for by Article 16 (2) and 1039 of the must enforce the law of California as in comity we are bound to do, as so
Civil Code, the national law of the decedent must apply. declared in Article 16 of our Civil Code, then we must enforce the law of
California in accordance with the express mandate thereof and as above
explained, i.e., apply the internal law for residents therein, and its conflict
Ancheta v. Guersey-Dalaygon of laws rule for those domiciled abroad.
Held: While foreign laws do not prove themselves in our It is argued on appellees behalf that the clause "if there is no law
jurisdiction and our courts are not authorized to take judicial notice of to the contrary in the place where the property is situated" in. Sec. 946 of
them; however, petitioner, as ancillary administrator of Audrey's estate, was the California Civil Coda refers to Article 16 of the Civil Code of the
duty-bound to introduce in evidence the pertinent law of the State of Philippines and that the law to the contrary in the Philippines is the
Maryland. provision in said Article 16 that the national of the deceased should govern.
Petitioner admitted that he failed to introduce in evidence the This contention can not be sustained. As explained in the various
law of the State of Maryland on Estates and Trusts, and merely relied on the authorities cited above the national law mentioned in Article 16 of our Civil
presumption that such law is the same as the Philippine law on wills and Code is the law on conflict of laws in the California Civil Code, i.e., Article
succession. Thus, the trial court peremptorily applied Philippine laws and 946, which authorizes the reference or return of the question to the law of
totally disregarded the terms of Audrey's will.  The obvious result was that the testator's domicile. The conflict of law rule in California, Article 946,
there was no fair submission of the case before the trial court or a judicious Civil Code, precisely refers back the case, when a decedent is not domiciled
appreciation of the evidence presented. in California, to the law of his domicile, the Philippines in the case at bar.
Petitioner insists that his application of Philippine laws was The court of the domicile can not and should not refer the case back to
made in good faith. The Court cannot accept petitioner's protestation.  How California; such action would leave the issue incapable of determination
can petitioner honestly presume that Philippine laws apply when as early as because the case will then be like a football, tossed back and forth between
the reprobate of Audrey's will before the trial court in 1982, it was already the two states, between the country of which the decedent was a citizen and
brought to fore that Audrey was a U.S. citizen, domiciled in the State of the country of his domicile. The Philippine court must apply its own law as
Maryland. As asserted by respondent, petitioner is a senior partner in a directed in the conflict of law rule of the state of the decedent, if the
prestigious law firm, with a "big legal staff and a large library."   He had all question has to be decided, especially as the application of the internal law
the legal resources to determine the applicable law.  It was incumbent upon of California provides no legitime for children while the Philippine law,
him to exercise his functions as ancillary administrator with reasonable Arts. 887 (4) and 894, Civil Code of the Philippines , makes natural
diligence, and to discharge the trust reposed on him faithfully.  children legally acknowledged forced heirs of the parent recognizing them.
Unfortunately, petitioner failed to perform his fiduciary duties.
Moreover, whether his omission was intentional or not, the fact
remains that the trial court failed to consider said law when it issued the
2. Testamentary Capacity and Intent
assailed RTC Orders dated February 12, 1988 and April 7, 1988, declaring Testamentary capacity may be classified into two kinds.
Richard and Kyle as Audrey's heirs, and distributing Audrey's estate Active testamentary capacity (TO MAKE) is often referred to as
according to the project of partition submitted by petitioner. This eventually testamentary POWER while passive testamentary capacity (TO
prejudiced respondent and deprived her of her full successional right to the RECEIVE) may also be referred to as plain testamentary
Makati property. CAPACITY.
Testamentary capacity is the capacity to comprehend the
Aznar v. Garcia nature of the transaction in which the testator is engaged at the
time, to recollect the property to be disposed of and the persons

Page 11 of 24
who would naturally be supposed to have claims upon the testator, Each case rests on its own facts and must be decided by its own
and to comprehend the manner in which the instrument will facts [Torres v. Lopez].
distribute his property among the objects of his bounty [Torres v. Neither senile debility, nor deafness, nor blindness, nor
Lopez]. poor memory, is by itself sufficient to establish the presumption
that the person suffering therefrom is not in the full enjoyment of
Article 796. All persons who are not expressly prohibited by his mental faculties, when there is sufficient evidence of his mental
law may make a will. (662) sanity at the time of the execution of the will [Sancho v. Abella].

A convict under civil interdiction is allowed to make a Neyra v. Neyra

will. This is because civil interdiction prohibits a disposition of Held: Insomnia, in spite of the testimony of two doctors, who
property inter vivos, not mortis causa. testified for the opponents to the probate of a will, to the effect that it
Article 796 refers to “all persons,’’ but this should be tended to destroy mental capacity, was held not to affect the full possession
understood to refer only to natural persons, not juridical ones, like of the mental faculties deemed necessary and sufficient for its execution.
(Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have
corporations. This is evident from the requirement of soundness of
been compos mentis, in spite of the physician's testimony to the contrary, to
mind. (Art. 798). the effect that she was very weak, being in the third or last stage of
tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Liu, 27 Phil., 579.)
Article 797. Persons of either sex under eighteen years of age The testimony of the attending physician that the deceased was
cannot make a will. suffering from diabetes and had been in a comatose condition for several
days, prior to his death, was held not sufficient to establish testamentary
Under Spanish Law, a person should have passed his incapacity, in view of the positive statement of several credible witnesses
that he was conscious and able to understand what was said to him and to
18th birthday before he can make a will. (6 Sanchez Roman 212).
communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.)
Under American Law, he can make a will on the day just before his Where the mind of the testator is in perfectly sound condition, neither old
18th birthday, on the ground that by that time, 18 years shall have age, nor ill health, nor the fact that somebody had to guide his hand in order
passed. (See Gardner, p. 86). Obviously, we follow the Spanish that he might sign, is sufficient to invalidate his will. (Amata and
concept. Almojuela vs. Tablizo, 48 Phil., 485.)
The age of 18 has been fixed for at this age, an individual
is generally no longer subject to fraud, influence, or insidious The second paragraph gives the affirmative definition as
machinations. made in the case of Bugnao v. Ibag. Soundness of mind requires:
An individual, though a minor, may thus still make a (a) that testator knows the nature of the estate to be
will, and the consent of his parents is not required. Upon the other disposed of (character, ownership of what he is giving)
hand, if he be less than 18, his will should be considered void (not (b) that testator knows the proper objects of his bounty
merely voidable), and this is true whether or not parental consent (by persons who for some reason expect to inherit something from
had been obtained. him — like his children)
(c) that testator knows the character of the testamentary
Article 798. In order to make a will it is essential that the act (that it is really a will, that it is a disposition mortis causa, that
testator be of sound mind at the time of its execution. (n) it is essentially revocable)

Due execution of a will includes a determination of Article 800. The law presumes that every person is of sound
whether the testator was of sound and disposing mind at the time of mind, in the absence of proof to the contrary.
its execution, that he had freely executed the will and was not The burden of proof that the testator was not of sound mind
acting under duress, fraud, menace or undue influence and that the at the time of making his dispositions is on the person who opposes the
will is genuine and not a forgery, that he was of the proper probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
testamentary age and that he is a person not expressly prohibited by
maintains the validity of the will must prove that the testator made it
law from making a will [Dorotheo v. Court of Appeals]. during a lucid interval. (n)

Article 799. To be of sound mind, it is not necessary that the

In this jurisdiction the presumption of law is in favor of
testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or unshattered by disease, the mental capacity of the testator and the burden is upon the
injury or other cause. contestants of the will to prove the lack of testamentary capacity
It shall be sufficient if the testator was able at the time of [Bagtas v. Paguio]. It is incumbent upon those who oppose the
making the will to know the nature of the estate to be disposed of, the probate of a will to clearly establish that the decedent was not of
proper objects of his bounty, and the character of the testamentary act. sound and disposing mind at the time of the execution of said will.
(n) Otherwise, the state is duty-bound to give full effect to the wishes
of the testator to distribute his estate in the manner provided in his
The first paragraph gives the negative definition of will so long as it is legally tenable [Baltazar v. Laxa].
soundness of mind, enunciated in the case of Bagtas v. Paguio. If the testator, one month or less before making the will
Therefore, just because a person has paralysis and loss of was publicly known to be insane (here, the person — proponent —
speech [Bagtas v. Paguio], or cholera [Galvez v. Galvez], insomnia who maintains the will’s validity must prove that the will was
[Caguioa v. Calderon], diabetes [Samson v. Corrales Tan Quintin], made during a lucid interval). (Art. 800, 2nd par.)
sleeping sickness or Addison’s disease [Neyra v. Neyra], deafness, The attesting or subscribing witnesses’ testimony as to
blindness, poor memory [Neyra v. Neyra], it does not follow that the mental condition of the testator should be given great weight
he was of an unsound mind at the time he executed the will. [Unson v. Abella] and should prevail over that given by a non-
Of the specific tests of capacity, neither old age, attending physician who merely speculates [Samson v. Corrales
physical infirmities, feebleness of mind* weakness of the Tan]. However, the physician should be believed if he was
memory, the appointment of a guardian, nor eccentricities are constantly near the testator, and if he actually saw the latter on the
sufficient singly or jointly to show testamentary incapacity.  date of execution [Gonzales v. Gonzales].

Page 12 of 24
 Bagtas v. Paguio Article 804 does not recognize oral wills. A holographic
Held: In the case at bar we might draw the same contrast as was will must be written entirely, from the date to the signature, in the
pictured by the court in the case just quoted. The striking change in the handwriting of the testator. Here, neither an attestation clause nor
physical and mental vigor of the testator during the last years of his life an acknowledgment before a notary public is needed unlike in an
may have led some of those who knew him in his earlier days to entertain ordinary/notarial will.
doubts as to his mental capacity to make a will, yet we think that the
The “handwriting” of a person may be proved by any
statements of the witnesses to the execution of the will and the statemerits
of the, conduct of the testator at that time all indicate that he unquestionably
witness who believes it to be the handwriting of such person
had mental capacity and that he exercised it on this occasion. At the time of because he has seen the person write, or has seen writing
the execution of the will it does not appear that his conduct was irrational in purporting to be his upon which the witness has acted or been
any particular. He seems to have comprehended clearly what the nature of charged, and has, thus, acquired knowledge of the handwriting of
the business was in which he was engaged. The evidence shows that the such person [Batulanon v. People].
writing and execution of the will occupied a period of several hours and “Handwriting experts” are usually helpful in the
that the testator was present during all this time, taking an active part in all examination of forged documents, but resort to these experts is not
the proceedings. Again, the will in the case at bar is perfectly reasonable
mandatory or indispensable to the examination or the comparison
and its dispositions are those of a rational person.
of handwriting, and because the judge must conduct an
independent examination of the questioned signature in order to
Baltazar v. Laxa arrive at a reasonable conclusion as to its authenticity [De Jesus v.
Held: In this case, apart from the testimony of Rosie pertaining Court of Appeals].
to Paciencia’s forgetfulness, there is no substantial evidence, medical or
otherwise, that would show that Paciencia was of unsound mind at the time
of the execution of the Will.  On the other hand, we find more worthy of b. Language or Dialect Known to the Testator
credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia In some cases, it is true, lack of evidence that the testator
when the latter went to Judge Limpin’s house and voluntarily executed the knew the language in the will was considered cured by
Will.  “The testimony of subscribing witnesses to a Will concerning the presumption of knowledge of the language or dialect used in the
testator’s mental condition is entitled to great weight where they are truthful will, as where the will is executed in a certain province or locality,
and intelligent.” More importantly, a testator is presumed to be of sound in the dialect currently used in such province or locality in which
mind at the time of the execution of the Will and the burden to prove
the testator is a native or resident, the presumption arises that the
otherwise lies on the oppositor. 
testator knew the dialect so used, in the absence of evidence to the
Here, there was no showing that Paciencia was publicly known
to be insane one month or less before the making of the Will.  Clearly, thus, contrary; or where the will is in Spanish, the fact that the testatrix
the burden to prove that Paciencia was of unsound mind lies upon the was a "mestiza española", was married to a Spaniard, made several
shoulders of petitioners.  However and as earlier mentioned, no substantial trips to Spain, and some of her letters in her own handwriting
evidence was presented by them to prove the same, thereby warranting the submitted as evidence by the oppositor, are in Spanish, give rise to
CA’s finding that petitioners failed to discharge such burden. the presumption that she knew the language in which the will was
Furthermore, we are convinced that Paciencia was aware of the written, in the absence of proof to the contrary [Javellana v.
nature of her estate to be disposed of, the proper objects of her bounty and
Javellana].
the character of the testamentary act.  As aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of
the nature of the document she executed.  She specially requested that the Abangan v. Abangan
customs of her faith be observed upon her death. She was well aware of Held: As another ground for this appeal, it is alleged the records
how she acquired the properties from her parents and the properties she is do not show that the testatrix knew the dialect in which the will is written.
bequeathing to LORENZO, to his wife CORAZON and to his two (2) But the circumstance appearing in the will itself that same was executed in
children. A third child was born after the execution of the will and was not the city of Cebu and in the dialect of this locality where the testatrix was a
included therein as devisee. 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.
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the Reyes v. Vidal
supervening of capacity. (n) Held: There is indeed nothing in the testimony of the witnesses
presented by the petitioner which would indicate that the testatrix knew and
The mental capacity of the testator is determined as of spoke the Spanish language used in the preparation of the will in question. 
But, in our opinion, this failure alonecdees not in itself suffice to conclude
the date of the execution of his will [Torres v. Lopez].
that this important requirement of the law has not been complied with, it
appearing that there is enough evidence on record which supplies this
Article 802. A married woman may make a will without the technical omission.  In the first place, we have the an disputed fact that the
consent of her husband, and without the authority of the court. (n) deceased was a mestiza española, was carried to a Spaniard, Recaredo
Pando, and made several trips to Spain. In the second place, we have the
The Article is to be applied only if the married woman is very letters submitted as evidence by the oppositer written in Spanish by
at least 18 years old, and is of sound mind at the time of execution. the deceased in her own handwriting (Exhibits 1, 2, 5 and 4).   Having
proven by her very own evidence that the deceased possessed the Spanish
language, oppositor oannot now be allowed to allege the contrary.  These
Article 803. A married woman may dispose by will of all her facts give rise to the presumption that the testator knew the language in
separate property as well as her share of the conjugal partnership or which the testament has been written, which presumption should stand
absolute community property. (n) unless the contrary is proven (Abangan vs. Abangan, 40 Phil., 476;
Gonzales vs. Laurel, 46 Phil. 750).  And this presumption has not been
3. Forms of Wills overcome.  And finally, we have the very attestation clause of the will
which states that the testatrix knew and possessed the Spanish language.  It
Article 804. Every will must be in writing and executed in a is true that this matter is not required to be stated in the attestation clause,
language or dialect known to the testator. (n) but its inclusion can only mean that the instrumental witnesses wanted to
make it of record that the deceased knew the language in which the will was
written.  There is, therefore, no valid reason why the will should be avoided
a. Written Wills on this ground.

Page 13 of 24
 Javellana v. Javellana and in the presence of each other. That is all the statute requires. It
Held: In the case before us, no such or similar circumstances may be wise as a practical matter that the one who signs the
exist. On the contrary, there is evidence that the testator is a Visayan testator's name signs also his own; but that is not essential to
although residing in San Juan, Rizal at the time of his death. The will was the validity of the will. Whether one person or another signed the
executed in the City of Manila. Undoubtedly, it cannot be said, and there is name of the testatrix in this case is absolutely unimportant so far as
no evidence, that Spanish is the language currently used either in San Juan,
the validity of her will is concerned. From the standpoint of
Rizal, or Manila. It follows, therefore, that no presumption can arise that
the testator knew the Spanish Language.
language, it is an impossibility to draw from the words of the law
But petitioner-appellees insist in their brief that the burden is on the inference that the person who signs the name of the testator
the oppositors to allege and prove that the testator did not know the Spanish must sign his own name also. The law requires only three witnesses
language in the face of the legal presumptions that "the law has been to a will, not four [Barut v. Cabucungan].
obeyed", "that a will executed in the Philippines must be presumed to have Nor is such requirement found in any other branch of the
been executed in conformity with the laws of the Philippines". and "that law. The name of a person who is unable to write may be signed by
things have happened in accordance with the ordinary course of nature and another by express direction to any instrument known to the law.
the ordinary habits of life", concluding that it would certainly be contrary
There is no necessity whatever, so far as the validity of the
to, the ordinary habits of life for a person to execute his will in a language
unknown to him. This, we believe, is, to use a colloquial term, begging the
instrument is concerned, for the person who writes the name of the
question. If the argument of counsel is correct, then every unopposed will principal in the document to sign his own name also. As a matter of
may be probated upon its mere presentation in court, without need of policy, it may be wise that he does so inasmuch as it would give
producing evidence regarding its execution. Counsel's statement is its own such intimation as would enable a person proving the document to
refutation. demonstrate more readily the execution by the principal. But as a
We find, however, in the record some indicia, although matter of essential validity of the document, it is unnecessary. The
insufficient to give rise to the presumption, that the testator might, in fact, main thing to be established in the execution of the will is the
have known the Spanish language. In oppositors' own Exhibit 3 (a letter
signature of the testator. If that signature is proved, whether it be
admittedly written by the testator) appear the salutation "Querido Primo"
and the complimentary ending "Su primo" which are Spanish terms. Having
written by himself or by another at his request, it is none the less
found that all the formal requisites for the validity of the will have been valid, and the fact of such signature can be proved as perfectly and
satisfactorily established, except the language requirement, we deem it in as completely when the person signing for the principal omits to
the interest of justice to afford the parties an opportunity to present sign his own name as it can when he actually signs. To hold a will
evidence, if they so desire, on this controverted issue. invalid for the lack of the signature of the person signing the name
of the principal is, in the particular case, a complete abrogation of
Attestation Clause the law of wills, as it rejects and destroys a will which the statute
However, in the case of an ordinary or attested will, its expressly declares is valid [Ibid].
attestation clause need not be written in a language or dialect But it is necessary that the testator's name be written by
known to the testator since it does not form part of the testamentary the person signing in his stead in the place where he would have
disposition. Furthermore, the language used in the attestation signed if he knew how or was able so to do, and this in the
clause likewise need not even be known to the attesting testator's presence and by his express direction; so that a will
witnesses. The last paragraph of Article 805 merely requires that, signed in a manner different than that prescribed by law shall not
in such a case, the attestation clause shall be interpreted to said be valid and will not be allowed to be probated [Balonan v.
witnesses [Caneda v. Court of Appeals]. Abellana].

Article 805. Every will, other than a holographic will, must b. The will must be attested and subscribed by
be subscribed at the end thereof by the testator himself or by the three or more credible witnesses in the
testator's name written by some other person in his presence, and by presence of the testator and of one another.
his express direction, and attested and subscribed by three or more The purpose of a statutory requirement that the witness
credible witnesses in the presence of the testator and of one another.
sign in the presence of the testator is said to be that the testator may
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also sign, as
have ocular evidence of the identity of the instrument subscribed
aforesaid, each and every page thereof, except the last, on the left by the witness and himself, and the generally accepted tests of
margin, and all the pages shall be numbered correlatively in letters presence are vision and mental apprehension [Jaboneta v. Gustilo].
placed on the upper part of each page. It was held that it is sufficient if the witnesses are
The attestation shall state the number of pages used upon together for the purpose of witnessing the execution of the will, and
which the will is written, and the fact that the testator signed the will in a position to actually see the testator write, if they choose to do
and every page thereof, or caused some other person to write his name, so; and there are many cases which lay down the rule that the true
under his express direction, in the presence of the instrumental
test of vision is not whether the testator actually saw the witness
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.
sign, but whether he might have seen him sign, considering his
If the attestation clause is in a language not known to the mental and physical condition and position at the time of the
witnesses, it shall be interpreted to them. (n) subscription [Ibid].
In the execution of a Will is not whether they actually
a. The will must be subscribed (signed) at the saw each other sign, but whether they might have seen each other
end thereof by the testator himself or by the sign, had they chosen to do so, considering their mental and
testator’s name written by another person physical condition and position with relation to each other at the
in his presence, and by his express moment of inscription of each signature. But it is especiall to be
direction. noted that the position of the parties with relation to each other at
From these provisions it is entirely clear that, with the moment of the subscription of each signature, must be such that
respect to the validity of the will, it is unimportant whether the they may see each other sign if they choose to do so.  This, of
person who writes the name of the testatrix signs his own or not. course, does not mean that the testator and the subscribing
The important thing is that it clearly appears that the name of the witnesses may be held to have executed the instrument in the
testatrix was signed at her express direction in the presence of three presence of each other if it appears that they would not have been
witnesses and that they attested and subscribed it in her presence
Page 14 of 24
able to see each other sign at that moment, without changing their signatures cannot demonstrate these witnesses' undertakings in the clause,
relative positions or existing conditions [Nera v. Rimando]. since the signatures that do appear on the page were directed towards a
A will may be allowed even if some witnesses do not wholly different avowal.
remember having attested it, if other evidence satisfactorily show The Court may be more charitably disposed had the witnesses in
this case signed the attestation clause itself, but not the left-hand margin of
due execution, and that failure of witness to identify his signature
the page containing such clause. Without diminishing the value of the
does not bar probate [Maravilla v. Maravilla].  instrumental witnesses' signatures on each and every page, the fact must be
It is important that the testator signs in the presence of noted that it is the attestation clause which contains the utterances reduced
the witnesses, hence, if he brings to their attention a document into writing of the testamentary witnesses themselves. It is the witnesses,
purportedly to be a will but already previously signed, the and not the testator, who are required under Article 805 to state the number
requirements of the law have not been complied with. However, as of pages used upon which the will is written; the fact that the testator had
long as the signing is done within the presence of one another, it signed the will and every page thereof; and that they witnessed and signed
really does not matter much whether the witnesses signed ahead of 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
or after the testator — as testator — as long as the signing is
elemental facts would be their signatures on the attestation clause.
sufficiently contemporaneous. In either case, the will is valid Thus, the subject will cannot be considered to have been validly
[Gabriel v. Mateo]. attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Jaboneta v. Gustilo
Held: We cannot agree with so much of the above finding of Attestation vs. Subscription
facts as holds that the signature of Javellana was not signed in the presence Attestation is the act of the senses, while subscription is
of Jena, in compliance with the provisions of section 618 of the Code of
the act of the hand. The attestation clause provides strong legal
Civil Procedure. 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 guarantee for the due execution of a will and insures the
will, taken together with the testimony of the remaining witnesses, which authenticity of the same. The defects in the attestion clause can be
shows that Javellana did in fact there and then sign his name to the will, cured or supplied by the text of the will or a consideration of
convinces us that the signature was affixed in the presence of Jena. The fact matters apparent therefrom which would provide the data not
that he was in the act of leaving, and that his back was turned while a expressed in the attestation clause or from which it may necessarily
portion of the name of the witness was being written, is of no importance. be gleaned or clearly inferred that the acts not stated in the omitted
He, with the other witnesses and the testator, had assembled for the purpose textural requirements were actually complied with in the execution
of executing the testament, and were together in the same room for that
of the will. The attestation clause of an ordinary or attested will,
purpose, and at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with which does not form part of the testamentary disposition, need not
relation to Javellana that he could see everything which took place by be written in a language or dialect known to the testator [Caneda v.
merely casting his eyes in the proper direction, and without any physical Court of Appeals].
obstruction to prevent his doing so, therefore we are of opinion that the The purpose of the attestation clause is to preserve in a
document was in fact signed before he finally left the room. permanent form, a record of the facts that attend the execution of a
particular will, so that in case of failure of the memory of the
Nera v. Rimando attesting witnesses, or other casualty, such facts may still be proved
Held: A majority of the members  of the court is  of  opinion that [Ibid].
this subscribing witness was in  the small  room with the testator and the
other subscribing witnesses at the time when they  attached their signatures c. The testator or the person requested by him
to the  instrument, and this  finding,  of course, disposes of the  appeal  and to write his name, and the instrumental
necessitates the  affirmance of the decree admitting the document to
witnesses of the will shall sign each and
probate  as the last will and testament of the deceased.
The alleged fact that one of the subscribing witnesses was in the 
every page thereof except the last, on the
outer room when the testator and the other describing witnesses signed the left margin.
instrument in  the  inner room, had  it been proven, would not be  sufficient The last page need not be signed on the margin, since the
in itself to invalidate the execution of the will. signatures already appear at the end. (It is wrong to say that the last
page needs no signature at all.).
Azuela v. Court of Appeals If the last page contains ONLY the attestation clause, the
Held: The petitioner and appellee contends that signatures of the testator need not sign on the margin [Fernandez v. de Dios].
three witnesses on the left-hand margin conform substantially to the law If the whole will including the attestation clause, consists
and may be deemed as their signatures to the attestation clause. This is of only one page, no marginal signatures are needed since these
untenable, because said signatures are in compliance with the legal mandate would be purposeless as the page already has, at the end thereof, all
that the will be signed on the left-hand margin of all its pages. If an the necessary signatures [Abangan v. Abangan].
attestation clause not signed by the three witnesses at the bottom thereof, be Whenever the marginal signatures are required, although
admitted as sufficient, it would be easy to add such clause to a will on a
the law says “left margin,” the purpose is served if they are on the
subsequent occasion and in the absence of the testator and any or all of the
witnesses. “right, top, or bottom margin,” for the only purpose is to identify
The Court today reiterates the continued efficacy of Cagro. the pages used, and thus prevent fraud [Nayve v. Mojal].
Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be Icasiano v. Icasiano
"attested and subscribed by [the instrumental witnesses]." The respective Held: That the failure of witness Natividad to sign page three (3)
intents behind these two classes of signature are distinct from each other. was entirely through pure oversight is shown by his own testimony as well
The signatures on the left-hand corner of every page signify, among others, as by the duplicate copy of the will, which bears a complete set of
that the witnesses are aware that the page they are signing forms part of the signatures in every page. The text of the attestation clause and the
will. On the other hand, the signatures to the attestation clause establish that acknowledgment before the Notary Public likewise evidence that no one
the witnesses are referring to the statements contained in the attestation was aware of the defect at the time.
clause itself. Indeed, the attestation clause is separate and apart from the This would not be the first time that this Court departs from a
disposition of the will. An unsigned attestation clause results in an strict and literal application of the statutory requirements, where the
unattested will. Even if the instrumental witnesses signed the left-hand purposes of the law are otherwise satisfied. Thus, despite the literal tenor of
margin of the page containing the unsigned attestation clause, such the law, this Court has held that a testament, with the only page signed at its

Page 15 of 24
foot by testator and witnesses, but not in the left margin, could nevertheless the signing by the testator of the will and all its pages, and that said
be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the witnesses also signed the will and every page thereof in the
requirement for the correlative lettering of the pages of a will, the failure to presence of the testator and of one another [Ibid].
mark the first page either by letters or numbers is not a fatal defect (Lopez In Fernandez v. De Dios, it was held:
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
From this analysis of our law now in force it appears:
and bad faith but without undue or unnecessary curtailment of the
First. That the will must have an attestation clause as a
testamentary privilege.
complement, without which it cannot be probated and with
which only and not aliunde (Uy Coque vs. Navas L. Sioca,
d. All the pages shall be numbered supra) may the requirements to be stated in its text be proven.
correlatively in letters placed on the upper The attestation clause must be prepared and signed, as in the
part of each page. instant case, on the same occasion on which the will is prepared
The purpose of this requirement is to guard against fraud, and signed, in such a way that the possibility of fraud, deceit or
and to afford means of preventing substitution or of detecting the suppression of the will or the attestation clause be reduced to a
minimum; which possibility always exists, as experience shows,
loss of any of its pages [Lopez v. Liboro].
in spite of the many precautions taken by the legislator to insure
Correlative numbering in letter — means “One,” “Two,” the true and free expression of one's last will.
“Three,” etc. BUT “A,” “B,” “C,” would be sufficient [Ibid], or Second. That the will is distinct and different from
“Page 1,” “Page 2,” “Page 3,” [Nayue v. Mojal], or even plain “1,” the attestation, although both are necessary to the validity of the
“2,” or “3,” since this would amount to substantial compliance will, similar, in our opinion, to a document which is not public
with the law. As a matter of fact, it has been held that “the so long as it is not acknowledged before a notary, the document
omission to put a page number on a sheet if that be necessary, may being a distinct and different thing from the acknowledgment,
each of which must comply with different requisites, among
be supplied by other forms of identification more trustworthy than
which is the signature of the maker which is necessary in the
the conventional numeral words or characters.” [Ibid].
document but not in the acknowledgment and both things being
It is not necessary to number the first page [Icasiano v. necessary to the existence of the public document.
Icasiano], nor even the last page as long as, for example, said page, Third. That the will proper must meet the
in its attestation clause states that “the will consists of three pages, requirements enumerated in the second paragraph of section 618
besides this one” for here, it is evident that the last page is really of the Code of Civil Procedure.
the fourth page. This is true also even if there is no reference to Fourth. That the text of the attestation clause must
“besides,” if the last page contains solely the attestation clause. express compliance with the requirements prescribed for the
will.
[Fernandez v. de Dios].
In the case at bar the attestation clause in question
states that the requirements prescribed for the will were
Lopez v. Liboro complied with, and this is enough for it, as such attestation
Held: In the present case, the omission to put a page number on clause, to be held as meeting the requirements prescribed by the
the first sheet, if that be necessary, is supplied by other forms of law for it.
identification more trustworthy than the conventional numeral words or The fact that in said clause the signature of the
characters. The unnumbered page' is clearly identified as the first page by testator does not appear does not affect its validity, for, as above
the internal sense of its contents considered in relation to the contents of the stated, the law does not require that it be signed by the testator.
second page. By their meaning and coherence, the first and second lines on
the second page are undeniably a continuation of the last sentence of the i. the number of pages used — upon
testament, before the attestation clause, which starts at the bottom of the
which the will is written
preceding page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO", the invocation of the Almighty, and a recital that the The attestation clause must state the number of sheets or
testator was in the full use of his testamentary faculty, all of which, in the pages composing the will; but when such fact, while it is not stated
logical order of sequence, precede the direction for the disposition of the in the attestation clause, appears at the end of the will proper, so
maker's property. Again, as page two contains only the two lines above that no proof aliunde is necessary of the number of the sheets of
mentioned, the attestation clause, the mark of the testator and the signatures the will, then there can be no doubt that it complies with the
of the witnesses, the other sheet cannot by any possibility be taken for other intention of the law that the number of sheets of which the will is
than page one. composed be shown by the document itself, to prevent the number
of the sheets of the will from being unduly increased or decreased
e. The attestation clause [Nayve v. Mojal].
An attestation clause refers to that part of an ordinary
will whereby the attesting witnesses certify that the instrument has Taboada v. Rosal
been executed before them and to the manner of the execution of Held: The law is to be liberally construed, "the underlying and
the same. It is a separate memorandum or record of the facts fundamental objective permeating the provisions on the law on wills in this
surrounding the conduct of execution and once signed by the project consists in the liberalization of the manner of their execution with
witnesses, it gives affirmation to the fact that compliance with the the end in view of giving the testator more freedom in expressing his last
essential formalities required by law has been observed. It is made wishes but with sufficient safeguards and restrictions to prevent the
for the purpose of preserving in a permanent form a record of 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
facts that attended the execution of a particular will, so that in case
tendency in respect to the formalities in the execution of a will" ( Report of
of failure of the memory of the attesting witnesses, or other the Code Commission, p. 103).
casualty, such facts may still be proved [Caneda v. Court of Parenthetically, Judge Ramon C. Pamatian stated in his
Appeals]. questioned order that were it not for the defect in the place of signatures of
Under the third paragraph of Article 805, such a clause, the witnesses, he would have found the testimony sufficient to establish the
the complete lack of which would result in the invalidity of the validity of the will.
will, should state (1) the number of pages used upon which the will The objects of attestation and of subscription were fully met and
is written; (2) that the testator signed, or expressly caused another satisfied in the present case when the instrumental witnesses signed at the
left margin of the sole page which contains all the testamentary
to sign, the will and every page thereof in the presence of the
dispositions, especially so when the will was properly identified by
attesting witnesses; and (3) that the attesting witnesses witnessed subscribing witness Vicente Timkang to be the same will executed by the

Page 16 of 24
testatrix. There was no question of fraud or substitution behind the Held: What is fairly apparent upon a careful reading of the
questioned order. attestation clause herein assailed is the fact that while it recites that the
We have examined the will in question and noticed that the testator indeed signed the will and all its pages in the presence of the three
attestation clause failed to state the number of pages used in writing the attesting witnesses and states as well the number of pages that were used,
will. This would have been a fatal defect were it not for the fact that, in this the same does not expressly state therein the circumstance that said
case, it is discernible from the entire will that it is really and actually witnesses subscribed their respective signatures to the will in the presence
composed of only two pages duly signed by the testatrix and her of the testator and of each other.
instrumental witnesses. As earlier stated, the first page which contains the The phrase "and he has signed the same and every page thereof,
entirety of the testamentary dispositions is signed by the testatrix at the end on the spaces provided for his signature and on the left hand margin,"
or at the bottom while the instrumental witnesses signed at the left margin. obviously refers to the testator and not the instrumental witnesses as it is
The other page which is marked as "Pagina dos"comprises the attestation immediately preceded by the words "as his Last Will and Testament." On
clause and the acknowledgment. The acknowledgment itself states that the other hand, although the words "in the presence of the testator and in the
"This Last Will and Testatment consists of two pages including this page". presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the witnesses since
Lopez v. Lopez
said phrase immediately follows the words "he has signed the same and
Held: The law is clear that the attestation must state the number
every page thereof, on the spaces provided for his signature and on the left
of pages used upon which the will is written. The purpose of the law is to
hand margin." What is then clearly lacking, in the final logical analysis,
safeguard against possible interpolation or omission of one or some of its
is the statement that the witnesses signed the will and ever page thereof in
pages and prevent any increase or decrease in the pages.
the presence of the testator and of one another.
While Article 809 allows substantial compliance for defects in
It is our considered view that the absence of that statement
the form of the attestation clause, Richard likewise failed in this respect. 
required by law is a fatal defect or imperfection which must necessarily
The statement in the Acknowledgment portion of the subject LAST WILL
result in the disallowance of the will that is here sought to be admitted to
AND TESTAMENT that it “consists of 7 pages including the page on
probate. Petitioners are correct in pointing out that the aforestated defect in
which the ratification and acknowledgment are written” cannot be deemed
the attestation clause obviously cannot be characterized as merely involving
substantial compliance. The will actually consists of 8 pages including its
the form of the will or the language used therein which would warrant the
acknowledgment which discrepancy cannot be explained by mere
application of the substantial compliance rule, as contemplated in the
examination of the will itself but through the presentation of
pertinent provision thereon in the Civil Code.
evidence aliunde

ii. that the testator signed (or expressly Del Rosario v. Saguinsin
Held: None of these requirements appear in the attesting clause
caused another person to sign) the
at the end of the document presented. The second page, i. e., what is written
will and every page thereof in the on the reverse side of the first, engenders the doubt whether what is written
presence of the instrumental thereon was ordered written by the alleged testatrix or was subsequently
witnesses; added by the same hand that drew the first page and the date that appears on
The purpose of the law in requiring the clause to state the the third.
subscription of the signatures of the testator is made for the This failure to comply with the law also vitiates the will and
purpose of authentication and identification, and thus indicates that invalidates it, as the second page is lacking in authenticity.
the will is the very same instrument executed by the testator and This is a defect so radical that there is no way by which what is
written on the reverse side of the first folio may be held valid. It is possible
attested to by the witnesses [Caneda v. Court of Appeals].
that this document consists of only the two folios numbered 1 and 2, and
that on the reverse side of number 1 nothing may have been written upon
iii. that the instrumental witnesses the order of the testatrix, the testament ending at the foot of the first folio
witnessed and signed the will and all with the legacy "To my nephew Catalino Ignacio, P200" (A mi sobrino
the pages thereof in the presence of Catalino Ignacio doscientos pesos) and from that part then immediately
the testator and of one another. follows folio No. 2—"Manila a tres de Octubre de mil novecientos diez y
The absence of the attestation clause is a fatal defect. ocho—Yo la testadora firmo en presencia etc." (Manila, October 3, 1918.—
Moreover, if the attestation clause is not signed by the attesting I, the testatrix, sign in the presence of etc.) There is nothing which
guarantees all the contents of page 2. The margin of this page is absolutely
witnesses at the bottom thereof, the will is void since omission
blank. There is nothing which gives the assurance that the testatrix ordered
negates the participation of said witnesses [Cagro v. Cagro]. the insertion of all the contents of page 2. It may very well be that it was
The attestation clause is an act of the witnesses; hence, it subsequently added thereby substituting the will of the testatrix, a result for
need not contain the signature of the testator. If present, said the prevention of which this manner of authenticity by affixing the
signature will be treated as mere surplusage. signature on each page and not merely on each folio was provided for by
While the testator is required to know the language of the law. This defect is radical and totally vitiates the testament.
will, the witnesses are not required to know the language of the
attestation clause. It is sufficient that it be translated to them. Article 806. Every will must be acknowledged before a
It will be noted that Article 805 requires that the notary public by the testator and the witnesses. The notary public shall
witnesses should both attest and subscribe to the will in the not be required to retain a copy of the will, or fi le another with the
presence of the testator and of one another. "Attestation" and office of the Clerk of Court. (n)
"subscription" differ in meaning. Attestation is the act of the
senses, while subscription is the act of the hand. The former is If a will is duly acknowledged before a notary public,
mental, the latter mechanical, and to attest a will is to know that it there is in its favor the presumption of regularity [Gonzales v.
was published as such, and to certify the facts required to constitute Court of Appeals].
an actual and legal publication; but to subscribe a paper published Though the Article says “every Will,” it is understood to
as a will is only to write on the same paper the names of the refer only to notarial or ordinary Wills, not to holographic Wills.
witnesses, for the sole purpose of identification [Caneda v. Court This is evident because the law says that the acknowledgment
of Appeals]. should be “by the testator and the witnesses,” and a holographic
Will needs no witnesses. (Art. 810).
Caneda v. Court of Appeals The express requirement of Art. 806 of the new Civil
Code is that the will is to be “acknowledged,’’ and not merely
subscribed and sworn to. The acknowledgment coerces the testator
Page 17 of 24
and the instrumental witnesses to declare before an officer of the document has attested to the notary that the same is his own free
law that they had executed and subscribed to the will as their own act and deed. A jurat is that part of an affidavit whereby the notary
free act or deed [Azuela v. Court of Appeals]. certifies that before him, the document was subscribed and sworn
by the executor. A will which does not contain an
Cruz v. Villasor acknowledgment, but a mere jurat, is fatally defective [Azuela
Held: After weighing the merits of the conflicting claims of the v. Court of Appeals].
parties, We are inclined to sustain that of the appellant that the last will and
testament in question was not executed in accordance with law. The notary Azuela v. Court of Appeals
public before whom the will was acknowledged cannot be considered as the Held: Yet, there is another fatal defect to the will on which the
third instrumental witness since he cannot acknowledge before himself his denial of this petition should also hinge. The requirement under Article 806
having signed the will. To acknowledge before means to avow (Javellana v. that "every will must be acknowledged before a notary public by the
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own testator and the witnesses" has also not been complied with. The
as genuine, to assent, to admit; and "before" means in front or preceding in importance of this requirement is highlighted by the fact that it had been
space or ahead of. (The New Webster Encyclopedic Dictionary of the segregated from the other requirements under Article 805 and entrusted into
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the a separate provision, Article 806. The non-observance of Article 806 in this
English Language, p. 252; Webster's New International Dictionary 2d. p. case is equally as critical as the other cited flaws in compliance with Article
245.) Consequently, if the third witness were the notary public himself, he 805, and should be treated as of equivalent import.
would have to avow, assent, or admit his having signed the will in front of In lieu of an acknowledgment, the notary public, Petronio Y.
himself. This cannot be done because he cannot split his personality into Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
two so that one will appear before the other to acknowledge his (sic), 1981 dito sa Lungsod ng Maynila." By no manner of contemplation
participation in the making of the will. To permit such a situation to obtain can those words be construed as an acknowledgment. An acknowledgment
would be sanctioning a sheer absurdity. is the act of one who has executed a deed in going before some competent
Furthermore, the function of a notary public is, among others, to officer or court and declaring it to be his act or deed. [41] It involves an extra
guard against any illegal or immoral arrangements. (Balinon v. De Leon, 50 step undertaken whereby the signor actually declares to the notary that the
O. G. 583.) That function would be defeated if the notary public were one executor of a document has attested to the notary that the same is his/her
of the attesting or instrumental witnesses. For then he would be interested own free act and deed.
in sustaining the validity of the will as it directly involves himself and the It might be possible to construe the averment as a jurat, even
validity of his own act. though it does not hew to the usual language thereof. A jurat is that part of
To allow the notary public to act as third witness, or one of the an affidavit where the notary certifies that before him/her, the document
attesting and acknowledging witnesses, would have the effect of having was subscribed and sworn to by the executor. Ordinarily, the language of
only two attesting witnesses to the will which would be in contravention of the jurat should avow that the document was subscribed and sworn before
the provisions of Article 805 requiring at least three credible witnesses to the notary public, while in this case, the notary public averred that he
act as such and of Article 806 which requires that the testator and the himself "signed and notarized" the document. Possibly though, the word
required number of witnesses must appear before the notary public to "ninotario" or "notarized" encompasses the signing of and swearing in of
acknowledge the will. The result would be, as has been said, that only two the executors of the document, which in this case would involve the
witnesses appeared before the notary public for that purpose. In the decedent and the instrumental witnesses.
circumstances, the law would not be duly observed. Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the express
Echavez v. Dozen Construction requirement of Article 806 is that the will be "acknowledged", and not
Held: As the CA correctly found, the purported attestation merely subscribed and sworn to. The will does not present any textual
clause embodied in the Acknowledgment portion does not contain the proof, much less one under oath, that the decedent and the instrumental
number of pages on which the deed was written.  The exception to this rule witnesses executed or signed the will as their own free act or deed. The
in Singson v. Florentino and Taboada v. Hon. Rosal, cannot be applied to acknowledgment made in a will provides for another all-important legal
the present case, as the facts of this case are not similar with those safeguard against spurious wills or those made beyond the free consent of
of Singson and Taboada.   In those cases, the Court found that although the the testator. An acknowledgement is not an empty meaningless act. The
attestation clause failed to state the number of pages upon which the will acknowledgment coerces the testator and the instrumental witnesses to
was written, the number of pages was stated in one portion of the will.  This declare before an officer of the law that they had executed and subscribed
is not the factual situation in the present case. to the will as their own free act or deed. Such declaration is under oath and
Even granting that the Acknowledgment embodies what the under pain of perjury, thus allowing for the criminal prosecution of persons
attestation clause requires, we are not prepared to hold that an attestation who participate in the execution of spurious wills, or those executed
clause and an acknowledgment can be merged in one statement. without the free consent of the testator. It also provides a further degree of
That the requirements of attestation and acknowledgment are embodied in assurance that the testator is of certain mindset in making the testamentary
two separate provisions of the Civil Code (Articles 805 and 806, dispositions to those persons he/she had designated in the will.
respectively) indicates that the law contemplates two distinct acts that serve It may not have been said before, but we can assert the rule, self-
different purposes.  An acknowledgment is made by one executing a deed, evident as it is under Article 806. A notarial will that is not
declaring before a competent officer or court that the deed or act is his acknowledged before a notary public by the testator and the witnesses
own.  On the other hand, the attestation of a will refers to the act of the is fatally defective, even if it is subscribed and sworn to before a notary
instrumental witnesses themselves who certify to the execution of the public.
instrument before them and to the manner of its execution.
Although the witnesses in the present case acknowledged the Article 807. If the testator be deaf, or a deaf-mute, he must
execution of the Deed of Donation Mortis Causa  before the notary public, personally read the will, if able to do so; otherwise, he shall designate
this is not the avowal the law requires from the instrumental witnesses to two persons to read it and communicate to him, in some practicable
the execution of a decedent's will. An attestation must state all the details manner, the contents thereof. (n)
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. In a case involving an illiterate testator, it was held that
the fact that the will had been read to him, need not be stated in the
attestation, and that it is sufficient if this fact is proved during the
Acknowledgment v. Jurat
probate proceedings [Mascarin v. Angeles].
This is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his
Article 808. If the testator is blind, the will shall be read to
act or deed. It involves an extra-step undertaken whereby the
him twice; once, by one of the subscribing witnesses, and again, by the
signor actually declares to the notary that the executor of the notary public before whom the will is acknowledged.

Page 18 of 24
 Moreover, it was not only Atty. Rino who read the documents
The rationale behind the requirement of reading the will on 5 November and 29 December 1977. The notary public and the three
to the testator if he is blind or incapable of reading the will himself instrumental witnesses likewise read the will and codicil, albeit silently.
(as when he is illiterate), is to make the provisions thereof known Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
to him, so that he may be able to object if they are not in
physician) asked the testator whether the contents of the documents were of
accordance with his wishes.  That the aim of the law is to insure his own free will. Brigido answered in the affirmative. With four persons
that the dispositions of the will are properly communicated to and following the reading word for word with their own copies, it can be safely
understood by the handicapped testator, thus making them truly concluded that the testator was reasonably assured that what was read to
reflective of his desire, is evidenced by the requirement that the him (those which he affirmed were in accordance with his instructions),
will should be read to the latter, not only once but twice, by two were the terms actually appearing on the typewritten documents. This is
different persons, and that the witnesses have to act within the especially true when we consider the fact that the three instrumental
range of his (the testator's) other senses [Garcia v. Gonzales]. witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since
Article 808 of the Civil Code applies not only to blind
childhood.
testators but also to those who, for one reason or another, are The spirit behind the law was served though the letter was not.
incapable of reading their wills [Alvarado v. Gaviola, Jr]. Although there should be strict compliance with the substantial
The notary public before whom the will is acknowledged requirements of the law in order to insure the authenticity of the will, the
cannot be one of the three witnesses to said will, in view of the formal imperfections should be brushed aside when they do not affect its
absurdity of one person acknowledging something before himself purpose and which, when taken into account, may only defeat the testator's
[Cruz v. Villasor]. will.

Alvarado v. Gaviola, Jr. Article 809. In the absence of bad faith, forgery, or fraud, or
Held: Since Brigido Alvarado was incapable of reading the final undue and improper pressure and influence, defects and imperfections
drafts of his will and codicil on the separate occasions of their execution in the form of attestation or in the language used therein shall not
due to his "poor," "defective," or "blurred" vision, there can be no other render the will invalid if it is proved that the will was in fact executed
course for us but to conclude that Brigido Alvarado comes within the scope and attested in substantial compliance with all the requirements of
of the term "blind" as it is used in Art. 808. Unless the contents were read to Article 805. (n)
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 This Article provides the rule for substantial compliance
consider his will as validly executed and entitled to probate, it is essential that is, as long as the purpose sought by the attestation clause is
that we ascertain whether Art. 808 had been complied with. obtained, the same should be considered valid.
Article 808 requires that in case of testators like Brigido
Substantial compliance is acceptable where the purpose
Alvarado, the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will was of the law has been satisfied, the reason being that the solemnities
acknowledged. The purpose is to make known to the incapacitated testator surrounding the execution of a will are intended to protect the
the contents of the document before signing and to give him an testator from all kinds of fraud and trickery but are never intended
opportunity to object if anything is contrary to his instructions. to be so rigid and inflexible as to destroy the testamentary
That Art. 808 was not followed strictly is beyond cavil. Instead privilege. Although there should be strict compliance with the
of the notary public and an instrumental witness, it was the lawyer substantial requirements of the law in order to ensure the
(private respondent) who drafted the eight-paged will and the five-paged authenticity of the will, the formal imperfections should be brushed
codicil who read the same aloud to the testator, and read them only once,
aside when they do not affect its purpose and which, when taken
not twice as Art. 808 requires.
Private respondent however insists that there was substantial into account, may only defeat the testator’s will [Alvarado v.
compliance and that the single reading suffices for purposes of the law. On Gaviola, Jr].
the other hand, petitioner maintains that the only valid compliance is a strict Article 809 has been designed to attain the main
compliance or compliance to the letter and since it is admitted that neither objective of the new Civil Code in the liberalization of the manner
the notary public nor an instrumental witness read the contents of the will of executing wills. (Comment of the Code Commission). The
and codicil to Brigido, probate of the latter's will and codicil should have Court’s policy is to require satisfaction of the legal requirements in
been disallowed.
order to guard against fraud and bad faith, but without undue or
We sustain private respondent's stand and necessarily, the
unnecessary curtailment of the testamentary privilege [Icasiano v.
petition must be denied.
This Court has held in a number of occasions that substantial Icasiano].
compliance is acceptable where the purpose of the law has been satisfied, The defects or imperfections must only be with respect to
the reason being that the solemnities surrounding the execution of wills are the form of the attestation or the language employed therein. Such
intended to protect the testator from all kinds of fraud and trickery but are defects or imperfections would not render a will invalid should it
never intended to be so rigid and inflexible as to destroy the testamentary be proved that the will was really executed and attested in
privilege.[14] compliance with Article 805. In this regard, however, the manner
In the case at bar, private respondent read the testator's will and
of proving the due execution and attestation has been held to be
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the testator
limited to merely an examination of the will itself without resorting
affirmed, upon being asked, that the contents read corresponded to evidence aliunde, whether oral or written. The foregoing
with his instructions. Only then did the signing and acknowledgement take considerations do not apply where the attestation
place. There is no evidence, and petitioner does not so allege, that the clause totally omits the fact that the attesting witnesses signed each
contents of the will and codicil were not sufficiently made known and every page of the will in the presence of the testator and of
and communicated to the testator. On the contrary, with respect to the each other. In such a situation, the defect is not only in the form or
“Huling Habilin,” the day of the execution was not the first time that the language of the attestation clause but the total absence of a
Brigido had affirmed the truth and authenticity of the contents of the draft.
specific element required by Article 805 to be specifically stated in
The uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance with his
the attestation clause of a will [Caneda v. Court of Appeals].
expressed wishes even prior to 5 November 1977 when Atty. Rino went to The enactment of the new Civil Code in 1950 did put in
the testator's residence precisely for the purpose of securing his force a rule of interpretation of the requirements of wills, at least
conformity to the draft. insofar as the attestation clause is concerned. For instance, a failure
by the attestation clause to state that the testator signed every page
Page 19 of 24
can be liberally-construed, since that fact can be checked by a without resorting to other extrinsic evidence, yields the conclusion that
visual examination, while a failure by the attestation clause to state there are actually five pages even if the said information was not provided
that the witnesses signed in one another’s presence should be in the attestation clause. In any case, the CA declared that there was
considered a fatal flaw since the attestation is the only textual substantial compliance with the directives of Article 805 of the Civil Code.
When the number of pages was provided in the acknowledgment
guarantee of compliance [Azuela v. Court of Appeals].
portion instead of the attestation clause, "[t]he spirit behind the law was
The failure of the attestation clause to state the number of served though the letter was not. Although there should be strict
pages on which the will was written remains a fatal flaw, despite compliance with the substantial requirements of the law in order to insure
Art. 809 of the new Civil Code. The purpose of the law in requiring the authenticity of the will, the formal imperfections should be brushed
the attestation clause to state the number of pages on which the will aside when they do not affect its purpose and which, when taken into
is written is to safeguard against possible interpolation or omission account, may only defeat the testator's will."
of one or some of its pages and to prevent any increase or decrease
in the pages. There is substantial compliance with this requirement Azuela v. Court of Appeals
if the will states elsewhere in it how many pages it is comprised of The failure of the attestation clause to state the number of pages
[Ibid]. on which the will was written remains a fatal flaw, despite Article 809. 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
Tanchanco v. Santos
omission of one or some of its pages and to prevent any increase or
Held; Notably, the case of Caneda v. Court of
decrease in the pages. The failure to state the number of pages equates with
Appeals explained that:
the absence of an averment on the part of the instrumental witnesses as to
x x x [U]nder Article 809, the defects or imperfections must
how many pages consisted the will, the execution of which they had
only be with respect to the form of the attestation or the language employed
ostensibly just witnessed and subscribed to. Following Caneda, there is
therein. Such defects or imperfections would not render a will invalid
substantial compliance with this requirement if the will states elsewhere in
should it be proved
it how many pages it is comprised of, as was the situation
that the will was really executed and attested in compliance with
in Singson and Taboada. However, in this case, there could have been no
Article 805. In this regard, however, the manner of proving the due
substantial compliance with the requirements under Article 805 since there
execution and attestation has been held to be limited to merely an
is no statement in the attestation clause or anywhere in the will itself as to
examination of the will itself without resorting to evidence aliunde, whether
the number of pages which comprise the will.
oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each and Villaflor v. Tobias
every page of the will in the presence of the testator and of each other. In Held: That the attestation clause of the will is written on a
such a situation, the defect is not only in the form or the language of the separate page and not on the last page of the body of the document is, in our
attestation clause but the total absence of a specific element required by opinion, a matter of minor importance and is explained by the fact that if
Article 805 to be specifically stated in the attestation clause of a will. x x x the clause had been written on the eighth page of the will in direct
Furthermore, the rule on substantial compliance in Article 809 x continuation of the body thereof, there would not have been sufficient space
x x presupposes that the defects in the attestation clause can be cured or on that page for the signatures of the witnesses to the clause. It is also to be
supplied by the text of the will or a consideration of matters apparent observed that all of the pages, including that upon which the attestation
therefrom which would provide the data not expressed in the attestation clause is written, bear the signatures of all of the witnesses and that there is
clause or from which it may necessarily be gleaned or clearly inferred that no question whatever as to the genuineness of said signatures.
the acts not stated in the omitted textual requirements were actually
complied with in the execution of the will. In other words, the defects must
Article 810. A person may execute a holographic will which
be remedied by intrinsic evidence supplied by the will itself.
must be entirely written, dated, and signed by the hand of the testator
xxxx
himself. It is subject to no other form, and may be made in or out of the
The so-called liberal rule, the Court said in Gil v. Murciano,
Philippines, and need not be witnessed. (678, 688a)
'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 A holographic will is one entirely written, dated, and
evidence aliunde to fill a void in any part of the document or supply signed by the hand of the testator [Caneda v. Court of Appeals].
missing details that should appear in the will itself. They only permit a
probe into the will, an exploration into its confines, to ascertain its meaning a. The language must be known to the testator
or to determine the existence or absence of the requisite formalities of law. Therefore, it is not sufficient that it be interpreted to him.
This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results.'
It may thus be stated that the rule, as it now stands, is that b. The will must be entirely written in the
omissions which can be supplied by an examination of the will itself, hand of the testator himself
without the need of resorting to extrinsic evidence, will not be fatal and Therefore, if it is typewritten, printed, in a computer
correspondingly, would not obstruct the allowance to probate of the will print-out, or mimeographed, it is void. If the testator has no hands,
being assailed. However, those omissions which cannot be supplied except but can write with his foot, this would be all right, since what the
by evidence aliunde would result in the invalidation of the attestation clause law requires is a personal distinctiveness.
and ultimately, of the will itself.
What is imperative for the allowance of a will despite the
c. The will must be dated
existence of omissions is that such omissions must be supplied by an
examination of the will itself, without the need of resorting to extrinsic The will must be dated — so that in case of a revision of
evidence. "However, those omissions which cannot be supplied except by the Will, that of later date should be preferred as expressing truly
evidence aliunde would result in the invalidation of the attestation clause the last Will and testament.
and ultimately, of the will itself." (Citations omitted). The law does not specify a particular location where the
In the instant case, the attestation clause indisputably omitted to date should be placed in the will.  The only requirements are that
mention the number of pages comprising the will. Nevertheless, the the date be in the will itself and executed in the hand of the testator.
acknowledgment portion of the will supplied the omission by stating that
[Labrador v. Court of Appeals]. 
the will has five pages, to wit: "Ang HULING HABILING ito ay binubuo ng
lima (5) na dahon, kasama ang dahong kinaroroonan ng Pagpapatunay at
Pagpapatotoong ito." Undoubtedly, such substantially complied with Roxas v. De Jesus, Jr.
Article 809 of the Civil Code. Mere reading and observation of the will,

Page 20 of 24
 Held: We have carefully reviewed the records of this case and personality to contest the wills and his opposition thereto did not have the
found no evidence of bad faith and fraud in its execution nor was there any legal effect of requiring the three witnesses. The testimony of Zenaida and
substitution of Wills and Testaments. There is no question that the Venacio Rivera, Jr., who authenticated the wills as having been written and
holographic Will of the deceased Bibiana Roxas de Jesus was entirely signed by their father, was sufficient
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. If contested, at least three such identifying witnesses
All the children of the testatrix agree on the genuineness of the holographic
should be required. If none are available, experts may be called
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- upon, otherwise the will of the testator may be frustrated thru no
respondent Luz Henson is that the holographic Will is fatally defective fault of his own. Upon the other hand, even if ordinary witnesses
because the date "FEB. / 61" appearing on the holographic Will is not are available, still if they are unconvincing, the court may still, and
sufficient compliance with Article 810 of the Civil Code. This objection is in fact should resort to handwriting experts. The duty of the Court,
too technical to be entertained. in fine, is to exhaust all available lines of inquiry, for the state is
As a general rule, the "date" in a holographic Will should very much interested in carrying into effect the true intention of the
include the day, month, and year of its execution. However, when as in the testator. Because, however, the law leaves it to the trial court to
case at bar, there is no appearance of fraud, bad faith, undue influence and
decide if experts are still needed, no unfavorable inference can be
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 drawn from the party’s failure to offer expert evidence, until and
valid compliance with Article 810 of the Civil Code, probate of the unless the court expresses dissatisfaction with the testimony of the
holographic Will should be allowed under the principle of substantial lay witnesses [Azaola v. Singzon].
compliance. Article 811 of the Civil Code is mandatory. The word
"shall" connotes a mandatory order. We have ruled that "shall" in a
d. The will must be SIGNED by the testator statute commonly denotes an imperative obligation and is
himself inconsistent with the idea of discretion and that the presumption is
The full or customary signature is needed, hence, the full that the word "shall," when used in a statute is mandatory" [Codoy
name is not required. If, therefore, the testator’s habitual signature v. Calugay].
is “Ed Paras,” this is sufficient. The witnesses so presented do not need to have seen the
The signature must appear at the end of the will. This is execution of the holographic will. They may be mistaken in their
evident from the fact that additional dispositions can be “written opinion of the handwriting, or they may deliberately lie in
below his signature.” affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's handwriting,
e. There must be animus testandi or some expert witnesses, who after comparing the will with other
Therefore, a will in the form of a letter is all right, as writings or letters of the deceased, have come to the conclusion that
long as the intent to leave a will is clear, but a letter which such will has not been written by the hand of the deceased. And the
incidentally contains testamentary dispositions or probable court, in view of such contradictory testimony may use its own
property dispositions cannot be considered a valid holographic visual sense, and decide in the face of the document, whether the
will. will submitted to it has indeed been written by the testator [Gan v.
Yap].
f. It must be executed at the time that
holographic wills are allowed Lost Holographic Wills
The extrinsic validity of a will should be judged not by The execution and the contents of a lost or destroyed
the law existing at the time of the testator’s death nor the law at the holographic will may not be proved by the bare testimony of
time of probate, but by the law existing at the time of the execution witnesses who have seen and/or read such will. it might be
of the instrument. This is because, although the Will become convenient to explain why, unlike holographic wills, ordinary wills
operative only after the testator’s death, still his wishes are given may be proved by testimonial evidence when lost or destroyed. The
expression at the time of execution [Vda de Enriquez v. Abadia]. difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second,
Article 811. In the probate of a holographic will, it shall be the testimony of the subscribing or instrumental witnesses (and of
necessary that at least one witness who knows the handwriting and the notary, now). The loss of the holographic will entails the loss of
signature of the testator explicitly declare that the will and the the only medium of proof; if the ordinary will is lost, the
signature are in the handwriting of the testator. If the will is contested, subscribing witnesses are available to authenticate [Gan v. Yap].
at least three of such witnesses shall be required. Evidently, the photostatic or xerox copy of the lost or destroyed
In the absence of any competent witness referred to in the
holographic will may be admitted because then the authenticity of
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (691a) the handwriting of the deceased can be determined by the probate
court [Rodelas v. Aranza].
In the case of ordinary wills, it is quite hard to convince
The probate may be uncontested or contested. If
three witnesses (four with the notary) deliberately to lie. And then
uncontested, at least one identifying (not necessarily a subscribing)
their lies could be checked and exposed, their whereabouts and acts
witness is required to avoid the possibility of fraud. If no witness is
on the particular day, the likelihood that they would be called by
available, experts may be resorted to.
the testator, their intimacy with the testator, etc. And if they were
Authenticity and due execution is the dominant
intimates or trusted friends of the testator they are not likely to lend
requirement to be fulfilled when such will is submitted to the
themselves to any fraudulent scheme to distort his wishes. Last but
courts for allowance. For that purpose the testimony of one of the
not least, they cannot receive anything on account of the will [Gan
subscribing witnesses would be sufficient, if there is no opposition
v. Yap].
[Gan v. Yap].
Whereas in the case of holographic wills, if oral
testimony were admissible only one man could engineer the whole
Rivera v. IAC fraud this way: after making a clever or passable imitation of the
Held: Jose Rivera is not the son of the deceased Venancio
handwriting and signature of the deceased, he may contrive to let
Rivera whose estate is in question. Hence, being a mere strange, he had no

Page 21 of 24
three honest and credible witnesses see and read the forgery; and Ordinarily, when a number of erasures, corrections, and
the latter, having no interest, could easily fall for it, and in court interlineations made by the testator in a holographic Will have not
they would in all good faith affirm its genuineness and authenticity. been noted under his signature, the Will is not thereby invalidated
The will having been lost—the forger may have purposely as a whole, but at most only as respects the particular words erased,
destroyed it in an "accident"—the oppositors have no way to corrected or interlined [Kalaw v. Relova].
expose the trick and the error, because the document itself is not at Thus, unless the unauthenticated alterations,
hand [Ibid]. cancellations or insertions were made on the date of the
One more fundamental difference: in the case of a lost holographic will or on testator's signature, their presence does not
will, the three subscribing witnesses would be testifying to a fact invalidate the will itself. The lack of authentication will only result
which they saw, namely the act of the testator of subscribing the in disallowance of such changes [Sps. Ajero v. Court of Appeals].
will; whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they Kalaw v. Relova
allegedly saw, an opinion which cannot be tested in court, nor Held: However, when as in this case, the holographic Will in
directly contradicted by the oppositors, because the handwriting dispute had only one substantial provision, which was altered by
itself is not at hand [Ibid]. 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
Article 812. In holographic wills, the dispositions of the
reason that nothing remains in the Will after that which could remain valid.
testator written below his signature must be dated and signed by him
To state that the Will as first written should be given efficacy is to disregard
in order to make them valid as testamentary dispositions. (n)
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
A testator may draft one part of a holographic will at one required by law by affixing her full signature.
time, and another part at another time. It may even happen that the The ruling in Velasco, supra, must be held confined to such
latter dispositions are made even after the signature had been insertions, cancellations, erasures or alterations in a holographic Will,
written. Hence, the necessity for a provision like Article 812. 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
Article 813. When a number of dispositions appearing in a
cannot be determined with certitude.
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. Article 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by the law of
the country in which he may be. Such will may be probated in the
(a) If the last disposition is SIGNED and DATED —
Philippines. (n)
(1) preceding dispositions which are SIGNED but NOT
DATED are validated.
Article 816. The will of an alien who is abroad produces
(2) preceding dispositions which are NOT SIGNED but
effect in the Philippines if made with the formalities prescribed by the
DATED are VOID. (This can be inferred from the wording of the law of the place in which he resides, or according to the formalities
law.) observed in his country, or in conformity with those which this Code
(3) preceding dispositions which are NOT SIGNED and prescribes. (n)
NOT DATED are of course VOID, unless written on the SAME
date and occasion as the latter disposition. An alien abroad may make a will in accordance with the
A reading of Article 813 of the New Civil Code shows formalities (extrinsic validity) prescribed by the law of:
that its requirement affects the validity of
the dispositions contained in the holographic will, but not its (a) the place of his residence or domicile;
probate. If the testator fails to sign and date some of the (b) his own country or nationality;
dispositions, the result is that these dispositions cannot be (c) the Philippines;
effectuated. Such failure, however, does not render the whole (d) the law of the place of execution. (Art. 17, par. 1).
testament void [Sps. Ajero v. Court of Appeals].
(b) The discussion in (a) presupposes that the latter Our laws do not prohibit the probate of wills executed by
disposition was DATED and SIGNED by the testator foreigners abroad although the same have not as yet been probated
HIMSELF. Therefore: and allowed in the countries of their execution. A foreign will can
(1) if done by ANOTHER, without the testator’s consent, be given legal effects in our jurisdiction.  Article 816 of the Civil
same will not affect the previous dispositions, which remain VOID Code states that the will of an alien who is abroad produces effect
if in themselves VOID; and remain VALID if in themselves in the Philippines if made in accordance with the formalities
VALID. prescribed by the law of the place where he resides, or according to
(2) if done by ANOTHER with the testator’s CONSENT, the formalities observed in his country [Palaganas v. Palaganas].
same effects as (1), because the latter disposition is not really
HOLOGRAPHIC (not done by the testator himself). Article 817. A will made in the Philippines by a citizen or
subject of another country, which is executed in accordance with the
Article 814. In case of any insertion, cancellation, erasure or law of the country of which he is a citizen or subject, and which might
alteration in a holographic will, the testator must authenticate the same be proved and allowed by the law of his own country, shall have the
by his full signature. (n) same effect as if executed according to the laws of the Philippines. (n)

Full signature here means the full or usual or customary Reason for allowing him to make a will following his
SIGNATURE (not necessarily the FULL NAME). However, if own country’s formalities: Being a citizen thereof, he may be more
both the first and second names are merely in initials, it is believed cognizant of said laws than those in the Philippines.
that this would be contrary to the intent of the law.

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 Article 818. Two or more persons cannot make a will jointly, the presence of the testator and of one another.  While the
or in the same instrument, either for their reciprocal benefit or for the petitioner submits that Article 820 and 821 of the New Civil Code
benefit of a third person. (669) speak of the competency of a witness due to his qualifications
under the first Article and none of the disqualifications under the
Article 819. Wills, prohibited by the preceding article, second Article, whereas Article 805 requires the attestation of three
executed by Filipinos in a foreign country shall not be valid in the or more credible witnesses, petitioner concludes that the
Philippines, even though authorized by the laws of the country where term credible requires something more than just
they may have been executed. (733a) being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible
Note that Art. 819 is an expression of public policy, and witness under Article 805 [Ibid].
is clearly one exception to the rule of lex loci celebrationis. In the strict sense, the competency of a person to be an
Note, however, that the prohibition refers only to instrumental witness to a will is determined by the statute, that is
Filipinos. Hence, if made by foreigners abroad, and valid in Art. 820 and 821, Civil Code, whereas his credibility depends on
accordance with Article 816, the same should be considered as the appreciation of his testimony and arises from the belief and
valid here. conclusion of the Court that said witness is telling the truth [Ibid].  
As to joint wills executed by foreigners, if executed
abroad and valid in accordance with Article 816, same should be Effect of Pardon
considered valid here. If executed in the Philippines, same should If the pardon was given because of the man’s innocence,
be considered VOID because although apparently allowed under as when somebody else had been proved to be the really guilty
Article 817, still Article 818, which refers specifically to joint person, he can now act as a witness to a will. This is because there
wills, and which should be considered as an expression of public is no mental dishonesty.
policy, should prevail. If the absolute pardon was an act of Executive grace of
clemency, it is submitted that the disqualification remains, for even
4. Witnesses to Wills an absolute pardon does not remove civil consequences. The
would-be witness still has a taint of mental dishonesty.
Article 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and able to read Article 822. If the witnesses attesting the execution of a will
and write, may be a witness to the execution of a will mentioned in are competent at the time of attesting, their becoming subsequently
Article 805 of this Code. (n) incompetent shall not prevent the allowance of the will. (n)

Article 821. The following are disqualified from being Observe that subsequent incapacity is immaterial. Of
witnesses to a will:
course, if the witness is incapacitated to testify at the time of
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a probate, he cannot testify as a witness. This does not mean,
document, perjury or false testimony. (n) however, that the validity of the will is impaired by such fact.

At the time of attesting (Arts. 820 and 821), the witness Article 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or legacy is
must:
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
(a) be of sound mind (Art. 820) claiming under such person or spouse, or parent, or child, be void,
(b) be at least 18 years (Art. 820) unless there are three other competent witnesses to such will. However,
(c) be able to read and write (Art. 820) such person so attesting shall be admitted as a witness as if such devise
(d) not be blind, deaf, or dumb (Art. 820) or legacy had not been made or given. (n)
(e) be domiciled in the Philippines (Art. 821)
(f) not have been CONVICTED (by fi nal judgment) of Observe that the persons named in the Article are
FALSIFICATION of a document; PERJURY; or FALSE incapacitated to inherit, but not incapacitated as witnesses. Hence,
TESTIMONY (Art. 821) only the part appertaining to them should be considered void.
The disqualification extends to (1) the witness; (2) the
Under the law, there is no mandatory requirement that spouse of the witness; (3) the parent of the witness; (4) the child of
the witness testify initially or at any time during the trial as to his the witness; (5) anyone claiming the right of said witness, spouse,
good standing in the community, his reputation for trustworthiness parent, or child.
and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court.  It is Caluya v. Domingo
enough that the qualifications enumerated in Article 820 of the Held: As will readily be seen on reading this section, nothing in
Civil Code are complied with, such that the soundness of his mind the will before us relative to the sale of land to Segundino Asis creates such
can be shown by or deduced from his answers to the questions an interest therein, as falls within the provisions thereof. Indeed, no interest
propounded to him, that his age (18 years or more) is shown from of any kind was created by the will in favor of Segundino Asis, nor did it
convey or transfer any interest to him. It simply mentioned a fact already
his appearance, testimony, or competently proved otherwise, as
consummated, a sale already made. Even if, however, the will had
well as the fact that he is not blind, deaf or dumb and that he is able conveyed an interest to Segundino Asis, it would not have been for that
to read and write to the satisfaction of the Court, and that he has reason void. Only that clause of the will conveying an interest to him would
none of the disqualifications under Article 821 of the Civil Code have been void; the remainder could have stood and would have stood as a
[Gonzales v. Court of Appeals].   valid testament.
It is true that under Article 805 of the New Civil Code, We are confident from a thorough examination of the record that
every will, other than a holographic will, must be subscribed at the a fair preponderance of the evidence is in favor of the proponents, and there
end thereof by the testator himself or by the testator's name written being no legal impediment to the probate the court erred in refusing it.
by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in
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 Article 824. A mere charge on the estate of the testator for
the payment of debts due at the time of the testator’s death does not
prevent his creditors from being competent witnesses to his will. (n)

The charge referred to here is a debt of the estate or of

the testator. While a creditor who acts as a witness is disqualified
to inherit, he is qualifi ed to receive his credit, which after all
cannot be considered a gift.

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