Art 774

Succession – sub and cedere – to place oneself in the place of another

 succession mortis causa – transfer of rights from the deceased to the heirs
 one of the modes of acquiring property

Two Elements
1. The change of subject
2. The Identity of legal relationship which remains the same

Art 775

Parties involved in succession

1. Decedent
causante
person whose inheritance is transmitted through succession
 testator- if left a will
intestate- no will

2. Successor
 person to whom the inheritance is transmitted
successor
cuasa habiente
under CC, heir, devisee, legatee

Heir – person called to succession either by provision of will or by operation of law

a. Voluntary Heirs-only by express will of the testator
b. Legal Heirs – succeed by operation of law in absence of will
c. Compulsory heirs – forced heirs

Devisee or Legatee

Heir Devisee/Legatee
Succeeds either to the whole of the Succeed to individual or specified items
inheritance or merely an aliquot part of personalty (legatee) of realty
thereof (devisee)
Immediately entitled to their ideal Acquire ownership over property at the
shares in the estate at the moment of moment of death without prejudice to
death the legitimes of Compulsory heirs
Called to succeed either by will or by Only by virtue of a will
operation of law
In preterition of invalid inheritance, Must be respected to such extent as will
may be deprived of participation not impair the legitime
Art 776

Succession Inheritance
Mode of acquisition and transmission of That which is transmitted to the successors
ownership and other real rights through succession upon death of the
decedent
Objective element of succession

Inheritance is not limited to tangible property but also includes rights.

Inheritance also includes obligations.

For rights to be part of inheritance, the same must actually be existing and acquired by the
decedent during his lifetime.

Intransmissible property, rights and obligations

1. Rights which are purely personal ex. Rights to public office, civil personality and
family rights
2. Rights which are patrimonial or related to property provided by law to be
instransmissible ex. Usufruct and personal easements
3. Rights which by nature are instransmissible

A lease contract according to jurisprudence is not essentially personal in character, thus the
rights and obligations are transmissible.

Rights not transmissible by law

1. Legal support
2. Parental authority
3. Usufruct
4. Contracts for a piece of work
5. Partnership
6. Agency

Money debts under rules of court must be liquidated before the residue of the estate
is distributed among heirs. Heirs are not personally responsible for the debts of their
predecessor. The extent of their liability is limited to the value of the estate which
they inherited from the decedent.

Accessions and fruits accruing since the death of the decedent shall be included in the
hereditary estate.
Art. 777
The moment of death is the determining factor when the heirs acquire definite right to the
inheritance. Ownership passes to the heirs at the precise moment of death.

At the time of death of decedent

Heirs- entitled to pro indiviso share in the estate
Devisee and Legatee – entitled to specific property at the immediate moment

Heir or Legatee can immediately dispose of what he inherits

Upon death of decedent, Devisee becomes the absolute owner of the devised property
subject to the resolutory condition that it be not declared inofficious or excessive.

Before an heir can compel issuance of a new certificate of title in his name, a final order of
distribution of the estate must first be had.

Art 553. There is likewise no interruption of possession from the decedent to the heir, in case
inheritance is accepted.

Estate taxes accrues at the moment of death.

Treyes v. Larlar, right of compulsory and intestate heirs to enforce ownership rights by virtue
of succession even prior to judicial declaration of heirship.

Law existing at the time of death governs:

1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of testamentary provisions
4. Capacity to succeed

While the deceased is still living, the right to inherit is a mere expectancy.

Art. 1347. A contract entered into upon future inheritance is void.

Requisites:
1. That the succession has not yet been opened
2. That the object of contract forms part of the inheritance
3. That the promissor has, with respect to the object, an expectancy of a right which is
purely hereditary in nature.

Death under Art 777 includes both actual (natural or physical demise) and presumptive
deaths

Art 390. Absence of 7 years-presumed dead except for purposes of succession which should
be ten years absence. If disappeared over 75 years old, 5 years
Art 391. 4 years absence. Presumed dead. On board a vessel lost, in armed forces and taken
part in war and person in danger of death.

Time of death
1. If ordinary absence under 390 - at the expiration of the period; sale void if sold
before expiration of period (future inheritance)
2. If qualified absence under 391 – at the time of disappearance; sale valid since after
expiration of 4 years from time of disappearance, the right to retroact to the time of
disappearance.

Tadeo-Matias case, a judicial declaration of presumptive death not necessary for the purpose
of opening succession to the estate.

Art 392. If absentee reappeared, the property is to be returned to the absentee in the
condition in which it may be found.

Action to recover
1. If in the possession of heirs-imprescriptible.
2. If in the possession of 3rd person – can no longer be recovered; but absentee can
recover from heirs the price of the property. If gratuitous transfer-cannot recover
value of property.

Requisites for transmission by succession

1. The death of the person whose succession is in question
2. The express will of the testator calling certain persons to succeed him, or in default
thereof, the provision of law prescribing the successor
3. Existence and capacity of the successor designated by the decedent or by law
4. Acceptance of inheritance by the successor

Art 778, 779, 780

Kinds of Succession

1. Testamentary-by will; voluntary succession

2. Legal or intestate- no will thus takes place by operation of law

3. Mixed Succession- partly by will and partly by operation of law

Concept of contractual succession not allowed by law.

Art 781, 782
Art 783
A will is an act whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his death

1. An act – need to be in writing to be valid

2. Person permitted to control to a certain degree – right purely a statutory creation

Limitations
a. Requirement of testamentary capacity
b. Requirement of compliance with formalities
c. Reservation for legitime

3. Disposition of estate

Presentation of the will for probate becomes mandatory only when the will contains
disposition of property

Art 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the rules of court.

An instrument may be considered a will even if it does not contain any disposition of
property

4. With the formalities prescribed by law

a. To close the door against bad faith and fraud
b. To avoid substitution of wills
c. To guaranty their truth and authenticity

5. To control to a certain degree

- Depends on the existence or non-existence of compulsory heirs at the time of his
death

Art 784, 785, 786, 787

Characteristic of wills
1. Strictly personal act – expression of the will cannot be left to the will of 3rd person;
mechanical act of drafting-can be by 3rd persons

What cannot be delegated

a. Duration of the designation of heirs, devisees or legatees
b. Efficacy of designation
c. Determination of the portions which they are to take, when referred to by name
d. Power to determine whether or not a testamentary disposition is to be operative

Can be delegated
a. The designation of the persons, institutions or establishments within the class or
 cause to whom the property or money to be given
b. Manner of distribution of said property or money

2. Unilateral act

Acceptance of the inheritance by H,D, L is necessary only for the transmission of

successional rights but not for the validity and effectivity of the testamentary
provisions

3. Individual act – prohibition against joint wills

4. Act mortis causa

Donation mortise causa must be executed in accordance with the requisites on

solemnities of wills and testaments otherwise VOID

5. Essentially revocable
6. Solemn or formal act
7. Must be a free and voluntary act

Art. 788 to 794

Before a testamentary disposition can be given effect, the will must pass extrinsic and
intrinsic validity tests.

Testacy favored over Intestacy. Doubts are resolved in favor of testacy especially where the
will evinces an intention on the part of the testator to dispose practically his whole estate.

Evidence of oral declarations allegedly made by the testator when he was still living is NOT
admissible.

2 kinds of ambiguity
1. Patent – appears on the face of the will Ex. Some of the six children; does not admit
parole evidence.
2. Latent – appears upon consideration of extrinsic circumstances ex. Cousin John when
there are other cousins named John – admits parole evidence

If ambiguity cannot be resolved even with the use of extrinsic evidence, the testamentary
provision is void.

Ordinary words -GR: Taken in their ordinary and grammatical sense Exception: Unless a clear
intention to use them in another sense can be gathered and that other sense can be
ascertained.

Technical Words
GR: taken in their technical sense
Exception: Unless context clearly indicated a contrary intention of it satisfactory appears that
the will was drawn solely by the testator and that he was unacquainted with such technical
sense

Interpretation of Devise or Legacy

GR: Every D or L shall convey all the interest which the testator could devise or bequeath in
the property disposed of.

Exception: Unless it clearly appears from the will that he intended to convey a less interest
and if the testator owns only a part of or an interest in the thing bequeath and he expressly
declares that he gives the thing in its entirety

Where some of the provisions of the will are valid and others invalid, the valid parts will be
upheld if they can be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or doing injustice to the
beneficiaries. (Balanay Jr. vs Martinez)

Rule on After-acquired Property Art 793 (property from making of the will up to death)
GR: Not governed by the will
Exception: when it expressly appear by the will that it is the intention of the testator to
include the after-acquired property in his will.

a. Rule in case of Voluntary Heirs

GR: Provision of the will
Exception: If there is not express statement in the will, after acquired property will pass
by intestate succession.

b. Rule in case of Devisees and Legatees

Only the property existing at the time of the execution of the will must be considered.

If property does not belong to testator, D or L VOID unless the testator subsequently
acquires the thing.

If generic personal property- valid

If indeterminate real property if there be no immovable property of its kind in the estate-
VOID

Art 795
FORMS OF WILLS
Rule as to Place

Forms and solemnities of wills shall be governed, generally by the laws on the country in
which they are executed. (lex loci celebrationis)

Rule as to time
Validity of a will as to its form depends upon the observance of the law in force at the time it
is made.

INTRINSIC VALIDITY, ORDER OF SUCCESSION, etc.

Rule as to Place
Under Art 16. Regulated by the national law of the decedent

Rule as to Time
Time of the death of the testator Art 16 and 1039

Art 796 and 797

Testamentary Capacity
-measure of mental ability which is recognized as sufficient for the making of a will.
1. Must be at least 18 years old
2. Of sound mind at the time of execution of the will
3. Even deaf, deaf-mute, blind can still make a will
4. A married women without consent of husband both exclusive and conjugal share

All persons not expressly prohibited by law have the right to make a will.
-Does not include juridical persons and applies only to natural persons

A person suffering from penalty of civil interdiction can still make a will.

Law as to place
National law of decedent

As to Time
At the time of making of the will

Art 798 to 803

Test of soundness of mind

1. Must have the ability to know the nature of the estate to be disposed of
2. Proper objects of the testator’s bounty
3. Character of the testamentary act

Presumption is in favor of soundness of mind

If testator one month or less before making his will was publicly known to be insane,
presumption is the testator is not of sound mind.
Art 804
Purpose of imposition of stringent formalities in wills is to prevent proliferation of spurious
wills

2 Kinds of wills
1. Ordinary, attested or notarial will
Testator Deaf or Deaf-mute – 2 persons should read the will and communicate its
contents to him
Testator Blind – Must be read to him twice by witness and notary public whom it is
acknowledged

2. Holographic will

Common requirements of a will Art 804

1. Must be in writing
2. Must have been executed in a language or dialect known to the testator. Applies even if
the provisions of the will are interpreted or explained to the testator.
There must be proof of compliance with such requirement and the burden of proof is
incumbent upon those who presented the will for probate

Nuncupative will- verbal declaration of will is NOT Recognized and NOT VALID

Signing of will by testator and witnesses in the presence of each must be on continuous act
otherwise VOID.

The attestation clause and acknowledgment need not be written in a language known to the
testator since it does not form part of the testamentary disposition.

Art 805, 806

Place of Signature of Testator
-Required in testamentary dispositions regardless of the location of the marginal signatures
-not required in the attestation and acknowledgment clauses

Logical end- where the last testamentary disposition ends

Only the testator is required to sign at the end of the will.

2 ways of signing
1. Personally
2. Through instrumentality of another person - Sufficient done pursuant to testator’s
express direction and such person signed in his presence and in the presence of the
instrumental witnesses
Manner of signing allowed
1. Customary written signature
2. Thumbmark
3. Cross if proven to be testator’s usual signature

Signing through another person

1. Must be pursuant to the express direction of the testator
2. 3rd person must write the testator’s name
3. Writing of the testator’s name must be done in the presence of the testator and 3
witnesses and of each other
4. The fact that the testator caused some other person to write his name in his presence
and by his express directions and also in the presence of 3 instrumental witnesses
must be stated in the attestation clause

Joe Doe, by the testator, Richard Roe

It is not important to the validity of the will that the person who writes the name of the
testator signs his name or not. (Barut v. Bacungan)

Testator may designate anyone to be his agent in signing the will. Can be a lawyer who
drafted the will or lawyer who acknowledged the will or one of the witnesses.

Attestation Subscription
Act of senses Act of hand
Mental Mechanical
To know that a will is published as such and Only to write on the same paper the names
to certify the facts required to constitute an of the witnesses for the sole purpose of
actual and legal publication identification
Attestation clause Marginal signatures of the witnesses on
each and every page of the will

Signature of witnesses at the bottom of the attestation clause is required otherwise, will is
invalid. (Azuela v. CA)

If less than 3 witnesses attested and subscribed, will is VOID

Credible witness – competent witness

-no need prior and independent proof of the fact that the witnesses were credible (Gonzales
v. CA)
Instrumental witnesses
-took part in the execution of the will

There is not requirement under the law that the witnesses must have knowledge of the
contents of the will.

Tests in order to consider signing to be in the presence of each other

1. Test of knowledge – the person must know that they gather and assemble for the
purpose of executing the testament

2. Test of Sight or Vision- person was actually and physically present and in such position
with relation to the other witness that he could see everything which took place by
merely casting his eyes in the proper direction and without any physical obstruction to
prevent his doing so.

3. Test of Position – position of the parties with relation to each other at the moment of
subscription of each signature, must be such that they may see each other sign if they
choose to do so without changing their relative positions or existing conditions or by
merely casting his eyes in the proper direction and without any physical obstruction to
prevent his doing so.

The true test is not whether they actually saw each other at the time of signing of the
documents, but whether they might have seen each other sign had they chosen to do so
and the attesting witnesses actually saw it all in this case. (Neyra vs Neyra)

4. Test of available senses – if testator is blind, he should be able to know what is taking
place

Location of the page number does not affect the validity of the will

Attestation clause- the witnesses certify that the instrument has been executed before
them and the manner of execution of the same.
-not part of the will

A will which entirely lacks attestation clause is void

Statute of frauds in not applicable to wills (Quinto v. Morata)

Allowance of wills despite Omissions is that Omissions must be supplied by an

examination of the will itself without need of resorting to extrinsic evidence.

2-fold purpose of Acknowledgment in Will

1. To safeguard testator’s wishes long after his demise
2. To assure that his estate is administered in the manner that he intends it to be done

Acknowledgement taken outside territorial jurisdiction of a notary is VOID.

 An ordinary will is not required to be dated. An erroneous date will not defeat a will.

Art 807, 808

Designated 2 persons to communicate the contents of the will to a blind deaf illiterate
testator can be anybody.
Art 809
Substantial Compliance Rule
-presupposes that the defects in the attestation clause can be cured or supplied by the text of
the will itself without resorting to evidence aliunde whether oral or written
Art 810
Holographic will
1. Entirely written in the testator’s handwriting
2. Dated by his hand
3. Signed by the testator in his own handwriting ( if thumbmark, VOID)
Art 811
Probate of Holographic Will
-1 witness is required who knows the handwriting and signature of the Testator

-If will is contested 3 witnessed required

-in the absence of witnesses, expert testimony resorted to

A photostatic copy of the HW may be allowed because comparison can be made with the
standard writings of the testator
Art 812, 813
Signature of testator in HW should be after his dispositions or at the end of the will.
Art 814
Insertion, cancellation, erasure or alteration of HW must be authenticated by Testator’s FUL
SIGNATURE

If alteration or change in not authenticated, the same is simply disregarded and the original
unaltered text shall apply unless
1. It affects the validity of the will itself
2. It affects the essence of the will
Art 815, 816, 817
Formalities in the execution of Wills
By Filipinos
-governed by the laws of the country in which they are executed (permissive, thus can be
done with the formalities in Ph)

By Aliens
If made in PH and abroad
-law of the place which he resides
-law of his country
-PH law

Art 818, 819

Prohibition against Joint Wills
-applicable only to citizens of the PH
A joint will is considered a separate will of each testator (Dela Cerna v. Potot)
Art 820 to 824
Qualification of Witness to wills
1. Of sound mind
2. 18 years old or more
3. Not blind, deaf or dumb
4. Able to read and write
5. DOMICILED in PH - applies only to wills executed by Fil in the PH
6. Not convicted of falsification of a document, perjury or false testimony

A witness or his spouse, parent or child who is a beneficiary of a will can be a witness to such,
but the testamentary disposition in favor of him is VOID unless there are 3 other competent
witnesses. Art 823

A creditor of the testator is not disqualified from becoming one of the witnesses to his will.

Competency is determined at the time of the will’s execution. They should possess the
qualifications and none of the disqualifications.
Art 825, 826
Codicils
Art 827
Doctrine of Incorporation by reference- applicable only to Ordinary wills
1. Extrinsic document or paper must in fact be in existence at the time of the execution
of the will
2. Will must clearly describe and identify the document or paper incorporated, stating
among other things the number of pages thereof
3. Document or paper must be identified by clear and satisfactory proof as the
document or paper referred to in the will
4. Document or paper must be signed by the testator and the witnesses on each and
every page.

Incorporation of prior will is allowed provided the prior will is not void as to form.
Art 828
Revocation – process of rendering the will or parts thereof inoperative.

Power to revoke effective even if the will has already been probated.
Art 829
Revocation in PH
-Civil Code governs

Revocation outside PH and Testator not domiciled in PH

1. Law of the place the will is made
2. Law of the testator’s domicile

Revocation outside PH and Testator domiciled in PH

1. Civil Code
2. Law of the place where the revocation is made

Art 830, 831

Ways of Revoking a will (exclusive)
1. By implication of law – intention is immaterial Ex. Provision in favor of the offending
spouse in a decree of legal separation
2. By some will, codicil or other writing executed as provided in case of wills-there must
be intent to revoke
a. Testamentary Revocation-implied; contain testamentary disposition
b. Declaratory Revocation-express; does not containing testamentary disposition
3. By burning, tearing, cancelling, or obliterating the will with the intention of revoking it

Exercise of the right to revoke necessitates the same capacity as that of making a will.
Otherwise, revocation ineffectual.

Mere intention to revoke unaccompanied by proof of physical act of destruction, is

ineffectual.

Art 832, 833

Doctrine of Dependent Relative Revocation
-Mistaken belief of a fact by the testator which cause him to revoke his will, the court will
declare the revocation no effect

If revocation is based on a cause but the cause turned out to be false or illegal, the revocation
is void.
Art 834
Recognition of illegitimate child in will valid, even if the will is revoked.