[REVIEWER] Succession

 

I.      CHARACTERISTICS OF A WILL (WILL MAKING)

 

The making of a will is:

1. PERSONAL (GR. Articles 784-785; 787).

The making of a will is a strict personal act;

(a)    it cannot be left in whole or in part to the discretion of a third person; or

(b)    accomplished through the instrumentality of an agent or attorney.

The duration or efficacy of the designation of heirs, devisees, or legatees; or

The determination of the portion which they are to take, when referred to by name, cannot be left to the discretion of a third person.

The testator may not make a testamentary disposition in such manner that another person has to determine whether or not is to be operative.

Thus, a person cannot delegate the writing or making of a will to third persons. If a person wants to control the disposition of his properties upon his death, he must personally write or make his own will.

ETRs. (Article 786)

The testator may entrust to a third person the:

(a)    distribution of specific property or sum s of money that he may leave in a general to specified classes or causes; and

(b)    designation of the persons or institutions or establishments to which such property or sums of money are to be given or applied.

 

2. FREE OR VOLUNTARY and INTELLIGENT (Article 839)

As in any act that effects a transfer of real rights, the making of a will must be done voluntarily.

Any vice of consent such as fraud, undue influence or mistake, invalidates the will.

The will shall be disallowed in any of the following cases:

a. If the formalities required by law have not been complied with;

b. If the testator was insane or otherwise mentally incapable of making a will, at the time of its execution;

c. If it was executed through force or under duress, or the influence of fear, or threats;

d. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

e. If the signature of the testator was procured by fraud;

f. If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

 

3. REVOCABLE OR AMBULATORY. (Article 828)

A will may be revoked by the testator at any time before his death. Any waiver or restriction of his right is void.

Since the dispositions will only take effect upon the death of the testator, he is given the leeway to change his mind and revoke his will.

No rights can be said to have been impaired since succession only opens at the moment of death. Since no rights are vested until death, the testator can revoke his will anytime during his lifetime.

FORMAL (804-808; 810-814; 818-819)

The will making of a will is surrounded by solemnities prescribed by law.

While HOLOGRAPHIC WILLS are subject to no other form, NOTARIAL WILLS are required to comply with certain formalities as found in Article 804-809.

4. UNILATERAL (Article 783)

Only one party is necessary to make a will.

5. EFFECTIVE MORTIS CAUSA.

6. Regardless of the tenor of the will, the effectivity of the property dispositions is effective only upon death of the testator.

However, if the testator provides otherwise, then the law on donations should be applicable.

7. INDIVIDUAL (Article 818)

Two or more persons cannot make a will jointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person

The making of a will is an individual act. Thus, making of a will can never be a joint undertaking between spouses.

8. STATUTORY (Article 783)

The right of making a will allowing the testator to control his property beyond his lifetime is a right provided by the legislature.

Thus, Congress can prescribe forms, set restrictions, and regulate the testamentary powers of the testator.

 

II.    TIME OF VESTING SUCCESSIONAL RIGHTS

Article 777. The rights to the succession are transmitted from the moment of the death of the decedent.

Two kinds of Death:

1. Actual Death

2. Presumed – Ordinary and Extraordinary presumptions

(Article 390-391)

-            Rights to the succession are deemed transferred from the very moment of death of the decedent.

-            The time of death is the determining point when the heirs acquire a definite right to the inheritance whether such right be pure or conditional.

-            During the lifetime of the decedent the right of the heirs is a mere expectancy.

GR. The right of heirs is vested from the moment of death even before judicial declaration.

ETR. When the testator specified a period when an heir can enter into possession of the legacy, the transmission of rights will take place on that day and not on the date of the death of the decedent.

III.  TESTAMENTARY CAPACITY

Art. 796. All persons who are not expressly prohibited by law may make a will. (662)

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)

 

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)

 

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

 

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)

 

Art. 800.

GR. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

 

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

 

ETRs.

1. When the testator, one month or less, before the execution of the will was publicly known to be insane (Article 800)

2. When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity (under Rules 93d and 101) and before said order has been lifted.

3.  

Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

 

TESTAMENTARY CAPACITY – The ability to execute a will has 3 components; age, soundness of mind and express statutory prohibition.

 

Who have testamentary capacity?

All natural persons, unless disqualified by law.

Juridical persons are not granted testamentary capacity.

 

A. Those under 18 (Article 797)

B. Those of unsound mind

-            As long as the testator/, at the time he made the will, was capable of perceiving the three things:

1. Nature of the estate to be disposed of;

2. Proper objects of one’s bounty; and

3. Character of testamentary act.

 

IV.    ARTICLE 16 OF NCC – NATIONALITY PRINCIPLE

 

Art. 16.  Real property as well as personal property is subject to the law of the country where it is stipulated.

 

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

 

V.      FORMALITIES OF A VALID WILL

 

1. Formal Will

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

(1)        In writing

(2)        In a language or dialect known to the testator

 

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

 

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

 

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

 

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

 

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n)

 

1. Subscribed by the testator or his agent in the presence and by his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses;

2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another;

3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses;

4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another;

5. All pages numbered correlatively in letters on upper part of each

6. Attestation clause, stating

a. The number of pages of the will;

b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses:

c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another;

7. Acknowledge before a notary public

NOTES:

1. No statement that the testator must sign in the presence of the witnesses.

2. No statement that the testator and witnesses must sign every page in one another’s presence.

3. There is no requirement that an attested will should be dated, unlike a holographic will,

4. Thumbmark as signature.

Two requisites for signing by the agent:

1. Must sign in testator’s presence; and

2. By his express direction.

 

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

 

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

 

2. Holographic Will

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a)

 

The requirements for a holographic will:

 

1. Completely handwritten by the testator;

Entirely handwritten by the testator. If the testator executes only part of the will in his handwritten, and other parts of the will are not so written, the entire will is void, because then the article would be violated.

2. Dated by the testator

3. Signed by him

 

Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

 

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a)

 

Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

 

Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

 

1. Formal requirement for additional dispositions in a holographic will:

A. Signature: and

B. Date

2. When there are several additional dispositions:

A. Signature and date after each additional dispositions; or

B. Each additional disposition signed and undated, but the last disposition signed and dated.

 

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

 

VI.    TEST OF PRESENCE DURING ATTESTATION OF A WILL

 

Presence of the witnesses depends upon the opportunity of the witnesses depends upon the opportunity of the witnesses to see the execution of the will.

 

“In the presence of each other” does not depend upon proof of the fact that the eyes of the witnesses were precisely cast upon the instrument at the moment of each subscription.

-            It depends on the existing conditions and positions of the witnesses in relation to each other such that by merely casting their eyes in the proper direction they could have seen each other sign without changing their relative positions or existing conditions.

VII.  JURISDICTION OF A PROBATE COURT

 

VIII.CODICILS

Codicil – explains, add to alters a disposition in a prior will

Subsequent will – makes independent and distinct dispositions.

 

Must the codicil conform to the form of the will to which it refers?

 

The law does not require this. Thus, an attested will may have a holographic codicil; a holographic will may have an attested codicil.

The forms of the will and the codicil may concur.

 

Requisites for a valid codicil:

The elements for a valid codicil are as follows:

1. It is supplement or addition to a will

2. It is made after the execution of the will

3. It is to be annexed and taken as part thereof

4. It explains, ads or alters the original will

5. It must be executed following the formalities of a will

Effects of the execution of a codicil: While treated as an independent document, a codicil also serves as a supplement or an annex to the will itself, thus, any codicil executed before a will is invalid.

 

IX.    MODES OF REVOCATIONS

(Articles 828 – 834)

A will is essentially revocable or ambulatory. This characteristic cannot be waived even by the testator.

There is no such thing as irrevocable will.

 

Article 829

 

Rules for Revocation:

A. If revocation made in the Philippines – Follow Ph Law

B.  

If revocation made outside the Philippines;

1. Follow the law of the place where the will was made; or

2. Follow the law of the place where testator was domiciled at the time of the revocation.

If testator domiciled in the Philippines (not governed by Art. 829)

1. Follow Philippine law (consistently with the domiciliary principle followed by this Article)

2. Follow the law of the place of revocation (consistently with the principle of lex loci celebretionis in Article 17)

3. Follow the law of the place where the will was made (by analogy with the rules on revocation where the testator is a non-Philippine domiciliary)

Article 830

This article enumerates the modes of revoking a will under Philippine law.:

1. By operation of law

a. Preterition

b. Legal separation (Article 63 par 4)

c. Unworthiness to succeed

d. Transformation, alienation, or loss of the object devised or bequeathed (Article 957)

2. By a subsequent will or codicil

The revocation may also be total or partial

Requisites for a valid revocation by a subsequent instrument:

a. The subsequent instrument must comply with the formal requirements of a will;

b. The testator must possess testamentary capacity

c. The subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will.

3. By physical destruction

The law gives four ways of destroying:

1. Burning

2. Tearing

3. Cancelling

4. Oblitering

Revocation by overt acts:

1. Testamentary capacity of the testator at the time of revocation

2. The burning, tearing, cancellation or obliteration of the will by the testator or by another in his presence and his express direction

3. The completion of the subjective phase of the act

4. The intent to revoke or animus revocandi.

X.      ALTERATION IN A HOLOGRAPHIC WILL.

Requisites to make a valid alteration.

 

ARTICLE 814. In case of any insertion, cancellation, erasure, or alteration in a holding in a holographic will, the testator must authenticate the same by his full signature.

 

Amendments may be done in a holographic will by cancellation, addition, erasure or alteration, provided they are authenticated by the full signature of the testator himself.

The date is not required because it is presumed that the alteration to the will was made at the time or date of its execution.

Any cancellation, addition, erasure or alteration in a holographic will is precisely executed in consideration of secrecy.

 

Effect of lack of authenticating signature: Any cancellation, erasure, or alteration must be authenticated by the testator.

Failure to do so would result in the nullity of the cancellation, addition, erasure of alteration as if it was not written at all.

The will would stand as it were prior to the cancellation, addition, erasure or alteration.

NOTE:

Full signature does not necessarily mean the testator’s full name; it rather means his usual and customary signature.

 

XI.    SPECAIL RULES FOR HANDICAPPED TESTATORS.

 

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

 

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

 

These two articles lay down special requirements for handicapped testators.

A. For deaf/deaf-mute testator:

1. If able to read – he must read the will personally

2. If unable to read – he must designate two persons to read the will and communicate to him, in some practicable manner its contents.

B. For blind testator:

Will to be read to him twice, once by one of the subscribing witnesses, and another time by the notary.

 

Failure to comply with these rules would result in nullity and denial of probate.