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CHAPTER 2TESTAMENTARY SUCCESSION
SECTION 1. - Wills
SUBSECTION 1. - Wills in General
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to acertain degree the disposition of this estate, to take effect after his death. (667a)
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion ofa third person, or accomplished through the instrumentality of an agent or attorney. (670a)
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A .According to Prof. Balane, the word "Person."-- refers only to natural persons. The phrase, "Permitted to control to a certain degree the
disposition." means that the testator cannot deprive the compulsory heirs of their legitime in the will. If there are no compulsory heirs, the
power of the decedent to dispose of his estate is absolute. If there are compulsory heirs, he only has a limited degree to dispose. That is why thewill can only cover the disposable portion of the estate (free portion.) He also comments that the word "act." is too general and it is better that a
word "document" is used because a will must be in writing.
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The making of a will is a purely personal act. It is an exercise of the disposing power which can not be delegated. But the physical
act of making a notarial will can be delegated to the secretary but not the execution or making of holographic wills.
Example: Mr. A dictated to his secretary, Ms. B, the content of his notarial will and the latter wrote it down and typed. Is the will
valid? Yes. What cannot be left in whole or in part to a third person is the exercise of the will making power, the exercise of the disposing ortestamentary power. The mechanical act can be delegated.
H , . E .Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of theportions which they are to take, when referred to by name, cannot be left to the discretion of a third person.(670a)
Things Which Cannot be Delegated to a Third Person by the Testator:
1. Designation of heir, legatee or devisee, e.g., I hereby appoint X as my executor and it is in his discretion to distribute my estate towhomever he wants to give it. This cannot be done.
2. Duration or efficacy of such disposition like, "Bahala ka na, Ruben."
3. Determination of the portion to w/c they are to succeed, when referred to by name.
Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money thathe may leave in general to specified classes or causes, and also the designation of the persons, institutions orestablishments to which such property or sums are to be given or applied. (671a)
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Art. 787. The testator may not make a testamentary disposition in such manner that another person has todetermine whether or not it is to be operative. (n)
: This provision clarifies what is meant that "a will is personal." This is in effect delegating the discretion to the disposition of the will.
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretationby which the disposition is to be operative shall be preferred. (n)
Art. 788 is the rule on interpretation in order that the will may be valid and not perish.
Rationale: The State prefers testate to intestate. Why? Because testamentary disposition is the express will of the decedent.
Intestamentary is the presumed will of the decedent. This is mere speculation on what the decedent wanted.
Ut res mages valet quam pereat.-- that the thing be valid than perish.
Example: The word "chick" can have 2 interpretations: (1) a girl in which case inoperative because she is not within the commerceof man and (2) sisiw.-- operative. Interpret according to the second.
Art. 789. When there is an imperfect description, or when no person or property exactly answers thedescription, mistakes and omissions must be corrected, if the error appears from the context of the will orfrom extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when anuncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into consideration the circumstances underwhich it was made, excluding such oral declarations. (n)
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Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, heshall designate two persons to read it and communicate to him, in some practicable manner, the contentsthereof. (n)
This provision lists down a special requirement if a notarial will is executed by a deaf-mute testator.
There are two cases contemplated: (1) If the testator can read, then he must read the will personally; (2) If illiterate, then 2 persons must read
the will and communicate to him the meaning of the will in some practicable manner.
-The law is not clear if the 2 persons reading it to him would do it separately or in consonance.
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)
-If the testator is blind, the will must be read to him twice: (1) by one of the subscribing witnesses; and (2) by the notary public, not
necessarily in that order.
-Is the provision mandatory? Yes. If this is not followed, the will is void. (Garcia v. Vasquez.)
In the case, the will was read to the testator only once. The SC denied probate of the will for failing to comply w/ the requirements of
Art. 808. Such failure is a formal defect.
b. Can this be presumed? No.
c. Can this be proven to have been complied w/ by competent evidence? Yes. In the absence of w/c the will is void. Such fact or
reading must be proven by evidence during the probate proceedings.
- Purpose: The reading is mandatory for the purpose of making known to the testator the provision of the will so that he may object if
it is not in accordance w/ his wishes.
-If the testator is deaf-mute and also blind, as a rule he cannot make a will unless the contents thereof can
be properly communicated to him in accordance with the legal requirements.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defectsand imperfections in the form of attestation or in the language used therein shall not render the will invalid ifit is proved that the will was in fact executed and attested in substantial compliance with all the requirementsof Article 805. (n)
This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance w/ Articles 805 and 806 will validate
the will despite some defects in the attestation clause.
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Looking at Art. 809, you get the impression of utmost liberalization. We can not determine how liberal we can be or can we go. This
article does not give a clear rule. JBL Reyes and Tolentino suggest that you make a distinction
.
Guide: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If not, then you have tobe strict.
Illustration: If in an attestation clause, the number of pages used was not stated, then you can liberalize because by examining the will itself,
you can detect the defect. This is because the pagination of statement in the attestation clause is merely a double check.
If the attestation clause failed to state that "the testator signed in the presence of witnesses," and this can not be remedied by visualexamination of the will, then you need to be strict.
Suggested amendment of the law: "If such defect and imperfections can be supplied by examination of the will itself and it is proved."
Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by thehand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, andneed not be witnessed. (678, 688a)
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Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows thehandwriting and signature of the testator explicitly declare that the will and the signature are in thehandwriting 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 itnecessary, expert testimony may be resorted to. (619a)
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Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated andsigned 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, andthe last disposition has a signature and a date, such date validates the dispositions preceding it, whatever bethe time of prior dispositions. (n)
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator mustauthenticate the same by his full signature. (n)
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.
- To authenticate additional dispositions, the same must be signed and dated by the testator.
Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
If a will has several additions, the testator has two options:
(1) Sign each disposition and sign and date the last; or(2) Sign and date each one of the additions.
RULES FOR CURING DEFECTS:
1. If the last disposition is SIGNED and DATED.
A) preceding dispositions which are signed but NOT dated are validated.
B) preceding dispositions which are not signed but dated are void.
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C) preceding dispositions which are not signed and dated are of course void unless written on the same date and occasion
as the latter disposition.
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.
Insertion, Cancellation, Erasure, or Alteration.-- Authenticate by "full signature," that is, in the manner the testator usually signs
his name.
Kalaw v. Relova.-- In the case, there were 2 alterations. In the first alteration, the name of Rosa as sole heir was crossed out andGregorio's name was inserted. In the second alteration, the name of Rosa as executor was crossed out and Gregorio's name was inserted. The
second alteration was initialed. Are the alterations valid? No.
Alteration 1: Not signed, thus, not valid.
Alteration 2: Initialed, thus, not valid; it must be full signature.
Gregorio cannot inherit as a sole heir because it was not authenticated. Rosa cannot inherit as sole heir because her name was
crossed out. This indicated a change of mind on the part of the testator. The SC held that a change done by cancellation and putting in a newname, w/o the full signature, is not valid. As such, the probate is denied and they both inherit by intestacy.
According to Prof. Balane, Rosa should inherit as sole heir. The cancellation was not done properly since it was not signed. Theeffect is as if the cancellation was not done. If the testator wants to change his mind, he should reflect it in the proper way.
Q: How do we make a change in a notarial will?
A: There is no provision of law dealing on this. The ordinary rules of evidence will apply. To prove change, the testator should affix either his
signature or initials. The best way, however, is to have the testator and notary public sign.
Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms establishedby the law of the country in which he may be. Such will may be probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalitiesprescribed by the law of the place in which he resides, or according to the formalities observed in his country,or in conformity with those which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed inaccordance with the law of the country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the same effect as if executed according to the laws of thePhilippines. (n)
SEE: THE FULL DISCUSSION UNDER ART. 795 ON EXTRINSIC and INTRINSIC VALIDTY OF A WILL.
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocalbenefit or for the benefit of a third person. (669)
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Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be validin the Philippines, even though authorized by the laws of the country where they may have been executed.(733a)
This provision is an exception to the rule enunciated in Articles 815 to 817 that for Filipinos, as long as the will is valid in the place of
execution, then it is valid in the Phils.
-Filipinos, whether here or abroad, cannot execute joint wills. It is against public policy.
Can aliens execute joint wills?
a. If executed in the country where it is allowed, YES, it may be probated here.
b. If made here and their country allows them to do this? There are 2 views on this:
(i) Yes, follow the personal law.
(ii) No because it is against public policy.
