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SUCCESSION - portion of the estate that is reserved by law to

compulsory heirs (legitime) ; this prevails all over other
Atty. Ganchoon kinds of succession
A.Y 2018-2019

5. Contractual Succession (Art. 130)

What is Succession? - applicable only to donations of future property by
Article 774. Succession is a mode of acquisition by virtue reason of marriage made by one of the future
of which the property, rights and obligations to the extent spouses to the other; future spouses may donate to
of value of the inheritance, of a person are transmitted each other in their marriage settlements their future
through his death to another or others either by will or by property to take effect upon the death of the donor
operation of law. and to the future property to take effect upon the
death (mortis causa) of the donor and to the extend
laid down by the provisions of the Civil Code relating
to testamentary succession.
- it is one of the mode of acquiring ownership under
Article 712

- It is a legal subrogation or substitution of a person in the 3 Elements:

transmissible rights and obligations of a deceased
person (mortis causa) 1. Subjective Element of Succession

Kinds: Article 775. In this Title, “decedent” is the general term

applied to the person whose property is transmitted
1. By will / Testamentary Succession (Art. 779) through succession, whether or not he left a will. If he left
a will, he is also called the testator.
- his estate is distributed according to his will
executed in the form prescribed by law

- designation of an heir is not essential for the This element consists of the:
validity of a will; what is essential is that the succession
must be effected through the testators will executed in a. Decedent - whether or not he left a will
the form prescribed by law

i. the testator / testatrix (woman)- with will

2. By law / Legal / Intestate (Art. 774) ii. Intestate - without a will
- without a will

- that which is effected by operation of law in default b. Persons who are called to succeed such decedent by
of a will; hence when the decedent even made a will but will or by operation of law such as the: (Art. 782)
not in accordance with the formalities prescribed by law,
his presumed will as provided by law shall govern the
distribution of his hereditary estate after his death
i. Heirs - the person called to the whole or to
an aliquot portion of the inheritance either
by will is called the voluntary heir and the
3. Mixed Succession (Art. 780) compulsory heir is the one who succeeds,
- based on the will and rules on legal succession by operation of law, to a portion of the
testator’s estate known as the legitime
- partly by will and partly by operation of law;
testamentary succession shall take place with respect to
that part of his property which he has disposed of in his 2 parts: Disposable free portion over which the testator
will, while legal succession shall take place with respect has absolute testamentary control and which may be
to that part which he has not disposed of. disposed of by his will and the Legal portion of legitime
over which the testator has no testamentary control
because the law has already reserved it for complusory
4. Compulsory Succession heirs hence cannot be disposed of by his will in favor of
any other person
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ii. Devisee - is a person to whom a gift of 3. All of the property and rights which may have
specific real property is given by virtue of accrued to the hereditary estate since the opening of
a will the succession - righst arising from obligations or rights
of obligation whether or not contractual or generally
iii. Legatee - is a person to whom a gift of transmissible except by nature, by agreement or by law
specific personal property is given by are instransmissible.
virtue of a will

Are all rights and obligations of the decedent

Since it is a rule that the testator has no testamentary transmissible? No. Only those not extinguished by his
control over the legitime, it follows that the devises of death and those rights arising thereto are transmissible.
legacies can only be charged against the disposable free
portion.

- Inherit only to the extent of the value of the

inheritance because under Art. 1311, the heir is not
Heirs succeed by universal title while devisees or liable beyond the value of the property he received from
legatees succeed by particular title. the decedent

Are all legal or intestate heirs, compulsory heirs? No. Art. 1311
Are all compulsory heirs, legal or intestate heirs? Yes. GR: Contractual Obligations are transmissible
The State is considered legal or intestate heirs? E: If the rights and obligations arising from the
contractual obligations are purely personal (legal support)
or by operation of law (Art. 1830 whereby death
2. Objective Element of Succession extinguishes partnership) or by stipulation

Article 776. The inheritance includes all the property, Estate of Hemady vs Luzon Surety (1956)
rights and obligations of a person which are not
extinguished by his death. Generally, contractual rights and obligations are
transmissible to the successors
Article 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations In this case, The contracts of suretyship entered into by
existing at the time of his death but also those which Hemady in favor of Luzon Surety not being rendered
have accrued thereto since the opening of the intransmissible due to the nature of the undertaking, nor
succession. by stipulations of the contracts themselves, nor by
provisions of law, his eventual liability thereunder
necessarily passed upon his death to his heirs. The
contracts therefore give rise to contingent claims
This element is known as the Inheritance which
provable against his estate. The reimbursement is a
includes:
payment of a sum of money resulting from an obligation
to give.

1. all the property which are existing at the time of

his death - properties which are available for
Union Bank vs. Santibanez (2005)
distribution among the persons called to inheritance after
settlement or liquidation (Contract of loan)

In testate succession, there can be no valid partition

among the heirs until after the will has been probated
2. All of his transmissible rights and obligations
and notice thereof given to the whole world otherwise the
which are existing at the time of his death - after the
right of the person to dispose of his property by will may
settlement of liquidation of his estate; rights relative to
be rendered nugatory.
property is tansmissible exceptexpressly made
intransmissble by operation of law; purely personal rights
not included/intransmissible
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A probate court has the jurisdiction to determine all the unless expressly authorized by law as provided under Art.
properties of the deceased, to determine whether they 1347
should or should not be included in the inventory or list of
properties to be administered. Therefore, filing of a - Presumption of death under Arts. 390 and 391
money claim against the decedent’s estate in the probate applies:
court within the time limited in notice is mandatory Art. 390. After an absence of seven years, it being
otherwise they are barred forever (in accordance with unknown whether or not the absentee still lives, he shall
Section 5, Rule 86). As petitioner failed to file its money be presumed dead for all purposes, except for those of
claim with the probate court, it may only go after Edmund succession.
(son of respondent) as co-maker of the decedent under
the promissory notes and continuing guaranty. The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
* Monetary obligations of the decedent can only be seventy-five years, an absence of five years shall be
charged against his estate and not against his heirs. sufficient in order that his succession may be opened.
It must be noted that the claims or obligations which can
be charged against the estate of the decedent after his Art. 391. The following shall be presumed dead for all
death are only those contracted by the decedent himself purposes, including the division of the estate among the
during his lifetime and not those contracted by his heirs. heirs:

(1) A person on board a vessel lost during a sea voyage,

or an aeroplane which is missing, who has not been
Alvarez v. IAC (1990)
heard of for four years since the loss of the vessel or
(Obligation to pay damages) aeroplane;

Doctrine of general transmissibility of the rights and (2) A person in the armed forces who has taken part in
obligations of the deceased to his legitimate children and war, and has been missing for four years;
heirs upon the former’s death - Petitioners being the
heirs of the Late Rosendo Alvarez, they cannot escape (3) A person who has been in danger of death under
the legal consequences of their father’s transaction, other circumstances and his existence has not been
which gave rise to the present claim for damages. The known for four years.
hereditary assets are always liable in their totality for the
payment of the debts of the estate. Uson vs. Del Rosario ( 1953)

Rights of inheritance becomes vested upon death

*No succession shall be declared unless and until a Future inheritance cannot be subject of a contract nor
liquidation of the assets and debts left by the decedent can it be renounced
shall have been made and all his creditors fully paid.
Retroactivity of the NCC cannot prejudice vested rights
Until a final liquidation is made and all debts are paid,
acquired under Old CC
the right of the heirs to inherit remains inchoate.
Nevertheless, this will not affect the principle that the
rights to the succession are transmitted at the moment of
the death of the decedent. Borja vs. Vda de Borja ((1972)

An heir may sell hereditary rights (individual share) to a

co-heir
3. Causal Element of Succession
Settlement entered into by an heir in their individual
capacity does not need court approval
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
Bonilla v. Barcena ( 1976)

(Substitution of the heirs during pendency of proccedings

- the death of the person is not only the condition but also in court is allowed by law)
the final cause of the transmission of successional rights.
Death is the determining factor when the heirs acquires a
- the rights of an heir to his inheritance is already in definite right to the inheritance
the nature of a vested right hence he may enter into a
contract with respect thereto except future inheritance
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Right to a parcel of land is not extinguished by death but

transmitted to the heirs upon death; from the moment of
death, the heirs already are the owners of the property Article 783. A will is an act whereby a person is permitted,
with the formalities prescribed by law, to control to a
In this case, when Fortunata Barcena died, her claim or certain degree the disposition of his estate, to take effect
right to the parcels of land in litigation in Civil Case 856 after his death.
was not extinguished by her death but was transmitted to
her heirs upon her death. Her heirs have acquired
interest in the case. Therefore, no reason for the Characteristics of a Will: SIFAFAD
respondent Court not to allow substitution as parties in
interest for the deceased plaintiff. The claim of the 1. Strictly personal act (Art. 784-787)
deceased plaintiff was an action to quiet title over the
2. Individual and unilateral act
parcels of land which affects primarily and principally
property and property rights and therefore is one that 3. Free and voluntary act
survives even after her death.
4. Act mortis causa (take effect after death)

5. Formal and solemn act (follow form prescribed by law)

Heirs of Conti vs. CA (1998)
6. Ambulatory and revocable during testator’s lifetime
Rights as co-owner, incidental to which is the right to ask
for partition were transmitted to her rightful heirs 7. Disposition of property

Heirs are entitled to immediate possession and all other

rights of ownership
Why only to a certain degree? Because there are
Art. 494 applies compulsory heirs hence there is a legitime reserved by
law.

Raymundo vs. De Suarez (2008)

Personal character of a will
(Teofista was sued by Rizal Realty Corp; properties were
levied and auctioned) GR: (Art. 784) It cannot be delegated or left in whole or in
part to the discretion of a third person or accomplished
The conjugal properties involved herein were titled in the through the instrumentality of an agent or attorney. (The
name of Marcelo Sr. married to Teofista. Upon he mere act of drafting does not fall within the prohibition)
former’s death, by virtues of compulsory succession,
Marcelo’s share in the conjugal partnership was
transmitted by operation of law to his compulsory heirs.
Acts which cannot be delegated: (Art. 785)
Compulsory succession reserves a portion of the net
estate of the decedent in favor of certain heirs. Such 1. The duration of designation of heirs, devisees,
portion is called the legitime which is that part of legatees
testator’s property which he cannot dispose of because
the law has reserved it for certain heirs who are called 2. The efficacy of the designation
compulsory heirs. Thus, the respondent’s rights to the
3. The determination of the portions which they are to
succession vested from the moment of their father’s
take when referred to by name
death and their ownership became absolute. Therefore,
the ownership of Teofista over the subject properties 4. The determination whether or not it is to be operative
levied upon is not absolute and only a portion therein (Art. 787)
could have been levied upon and sold to auction.

Acts which can be delegated or be entrusted to third

Heirs of Nicholas vs. Metrobank (2007) persons: (Art. 786)
(Writ of possession) 1. The power to distribute specific property or sums of
money which he may have left in general to specified
An heir who is not a party in a mortgage or foreclosure
classes or causes
cannot be deprived of his legitime by enforcement of the
writ of possession 2. The power to designate the persons, institutions or
establishments to which such property or sums of money
What is a Will?
are to be given or applied

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- The testator has already completed the testamentary

act of making a will; what he entrusts to third persons are
merely details thereof in order to make the devise or Effect of change:
legacy more effective. 1. If valid at the time of execution - it will not be
invalidated by a subsequent law

Construction of Wills - intention and purpose of the 2. If the change is after the execution and before death of
testator is controlling testator

GR: subsequent law cannot have retroactive effect

Interpretation in case of doubt - the interpretation by E: Expressly provided or is necessarily implied from the
which the disposition is to be operative shall be preferred; language used therein (this is not a violation of
that construction which will sustain and uphold the will in Constitutional prohibition because statute is enacted
all its parts (Art. 788) before death of the testator hence no rights vested yet in
the persons called to the inheritance)

Mistakes and omissions (Art. 789)

Vitug vs CA (2018)
1. When there is an imperfect description or when no
person or property exactly answers the description (Survivorship agreement between Mr. Vitug and his late
(Latent ambiguity) - when you implement the will, you wife)
see ambiguity; may use intrinsic or extrinsic evidence The survivorship agreement in question is not one of
mortis causa which should be embodied in a will. A will
has been defined as a solemn, revocable, and free act
2. When there is an uncertainty arising upon the face of by which as capacitated person disposes of his property
the will as to the application of any of its provisions and rights and declares or complies with the duties to
(Patent Ambiguity) - appears on the face of the will; the take effect after his death. In this case, the monies
testators intention is to be ascertained from the context subject of the savings account were in the nature of a
of the will and the circumstances under which it was conjugal funds absence of showing that the funds
made exclusively belonged to one party. Moreover, the
survivorship agreement is an aleatory contract whereby
2 persons bind themselves reciprocally. It is valid unless
- In both, you cannot use both witnesses oral attestation done for an unlawful purpose.
of the testator as to his intention (hearsay)

Who may make a will?

After-Acquired Property (Art. 793)

GR: Property acquired during the interval between the Article 796. All persons who are not expressly prohibited
execution of the will and the death of the testator are not by law may make a will.
included among the properties disposed of

E: It is expressly stated in the will that such is the

intention of the testator Except:

- This rule is only applicable to devises and legacies (Art. 1. Persons below 18 (Art. 797)
794)
2. Persons with unsound mind (Art. 798)

The law in force at the time of its execution is the law

governing the form of the will. (Art. 795) Exception to exception in #2 (Art. 799; Ortega vs.
Valmonte)
When the testator executes a will which is invalid for
failure to comply with the formalities prescribed by law at The person knows the:
the time of execution, then upon his death he should be 1. Nature of the estate to be disposed of
regarded and declared as having died intestate and his
heirs will then inherit in accordance with the rules of 2. The proper objects of his bounty; and
intestate succession
3. The character of the testamentary act
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- Hence absolute soundness of mind and memory is not It is incumbent upon those who oppose the probate of a
essential in order that a person can make a will. will to clearly establish that the decedent was in unsound
mind at the time of the execution of the will.

Forgetfulness is not equivalent to being of unsound

Art. 801 - supervening incapacity does not invalidate an mind.
effective will
As long as the testator knows the nature, bounty of his
property and character of the the act when he executed
Art. 800 the will, it is presumed that he is of sound mind. An
essential element of the validity of the will is the
Presumption: testator is of sound mind willingness of the testator or testatrix to execute the
document that will distribute his/her earthly possessions
Burden of proof of the testator’s unsound mind: on
upon his/her death.
the part of the oppositor

Except: if one month or less, before making his will was

publicly known to be insane, the burden shifts to the Art. 802-803
person who maintains its validity
A married woman may make a will without consent of her
husband and may dispose by will all her separate
property as well as her share of the conjugal partnership
Effect of:
or absolute community property.
old age The law prescribes no limit as long as no
fraud
Classification of Wills:
Senile dementia is the one that produces
testamentary incapacity (failure of mind as
to deprive him of intelligent action)
1. Ordinary or Notarial
infirmity or Does not affect his testamentary capacity
disease so long as at the time of the execution he
knows the nature, bounty of property and Article 804. Every will must be in writing and executed in
character of the act the language or dialect known to the testator.
insanity Does not affect the validity of the will
because the law does not require that the
testator be of full possession of all his Common Formalities: In writing and in a language
reasoning; as long as his mental weakness known to the testator
does not disqualify him from knowing or
appreciating the nature, extent or
consequences of his act Suroza vs. Judge Honrado (1981)
mental Does not affect unless the delusion The opening paragraph of the will was stated in English
delusion influenced him at the time of the execution said to be understood and known to the testatrix but in its
of the will in his determination of the concluding paragraph it was stated that the will was read
manner in which he should dispose of his to the testatrix and translated into Filipino language.
property Thus, the will is void because of the mandatory provision
of Art. 804 that every will must be in a language known to
Supernatur Does not affect testamentary capacity
the testator.
al belief

Intoxication Only if the mind of the testator has been

impaired by such habit to the extent that he Article 805.
is not of sound and disposing mind and
memory Form of Notarial Will Must be SASA

1. Subscribed at the end thereof:

Baltazar vs. Laxa a) by the testator himself

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b) By third person writing the testator’s name by 6. All the pages must be numbered correlatively in letters
the latter’s express direction and in his and placed on the upper part of each page
presence
7. Must contain attestation clause
2. Attested and subscribed by three or more credible
witnesses inthe presence of the testator and of one 8. Must be acknowledged before a notary public by the
another testator and witnesses

3. Signed on each and every page, except the last, on

the left margin, by the: Manner of signing by testator: whatever is used is
a) Testator himself or the person he requested to actually intended as signature, whether by writing initials
write his name or first name only

b) Instrumental witnesses

4. All the pages are numbered correlatively in letters A complete signature is not essential to the validity of the
placed on the upper part of each page will provided the part of the name written was affixed to
the instrument with intent to execute it as a will

Form of Attestation Clause must state FINI

Signatures by
1. Fact that the testator signed the will and every page
thereof, or caused some other person to write his name, Mark Sufficient compliance as long as it can be
under his express direction, in the presence of the established that such is the testator’s usual
instrumental witnesses signature

2. If the attestation clause is in a language not known to Another Must be the name of the testator, in his
the witnesses, it shall 3. Number of pages presence, by his expressed direction and
should be stated in the attestation clause
3. Fact that the instrumental witnesses have witnessed
and signed the will and all the pages thereof in the
presence of the testator and of one another
Payad vs. Tolentino (1936)

A statute requiring a will to be signed is satisfied if the

Article 806. signature is made by the testator’s thumbmark

Acknowledgment before a notary public

1. Must be acknowledged before the notary public by the Garcia vs. Lacuesta (1951)
testator and the witnesses
It was not shown that the cross is the usual signature of
the testator. A cross cannot and does not have the
trustworthiness of a thumbmark.
SUMMARY OF SPECIAL FORMALITIES

1. In writing
Place of signature: At the foot or end of the will
2. Written in a language known to the testator
The position of the signature at the end of the will
3. Subscribed at the end thereof by the testator himself furnishes in itself internal evidence of finality or
or the person requested by him in his presence and by completion of intent.
his express direction

4. Attested and subscribed by three or more credible

witnesses in the presence of the testator and of one Presence of 3 or more credible witnesses is mandatory
another
Attestation and subscription by witnesses is
5. Testator or the person requested by him to write his indispensable
name and the instrumental witnesses of the will, shall
also sign each and every page on the left margin except
the last Jaboneta vs. Gustillo

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“The true test of presence of the testator and the (The will was not numbered and not signed on the left
witnesses in the execution of wills is not whether they margin)
actually saw each other sign, but whether they might
have seen each other sign, had they chosen to do so, In a will consisting two sheets the first of which contains
considering their mental and physical condition and the testamentary dispositions and is signed at the bottom
position with relation to each other at the moment of by the testator and 3 witnesses and the second contains
inscription of each signature.” only the attestation clause and is signed also at the
bottom by the 3 witnesses, it is not necessary that both
sheets be further signed on their margins by the testator
and the witnesses, or be paged.
No order of signing by the testator or by
instrumental witnesses is required as long as each
signed in the presence of each other is sufficient (Gordon
v. Parker) Azuela vs. CA (2006)

- A will whose attestation clause does not contain the

number of pages on which the will is written is fatally
Barut vs. Cabacungan (1912) defective.

With respect to the validity, it is unimportant whether the - A will whose attestation clause is not signed by the
person who writes the name of the testatrix signs his own witnesses is fatally defective.
or not. It is immaterial who writes the name of the
testatrix provided it is written at her request and in her - A will which does not contain an acknowledgment but a
presence of all the witnesses to the execution of the will. mere jurat, is fatally defective.

Purpose of Marginal and Numbering: (mandatory)

1. To prevent fraud GR: Failure of the attestation clause to state the number
of pages on which the will was written is a fatal defect
2. To avoid substitution
E: If the will states elsewhere in it how many pages it is
3. To guarantee the truth and authenticity of the will comprised of (Caneda vs. CA)

Exception to the rule that it should be signed on the Caneda vs. CA (1993)
left margin:
While it appears that the testator have signed the will and
1. In the last page, when the will consists of two or more all its pages in the presence of the instrumental
pages witnesses as well as state the number of pages that were
used, what is lacking in the attestation clause is the
2. When the will consists of only one page statement that, the witnesses signed the will and every
3. When the will consists of two pages (Abangan v. page thereof in the presence of the testator and of one
Abangan) another. Absence of such is a fatal defect which must
necessarily result in the disallowance of the will.

Icasiano vs. Icasiano (1964)

Lopez v. Lopez (2012)
The will, while signed at the end and in every page, it
does not contain one of the signature of the 3 witnesses. Instead of 8 pages, the acknowledgment consists of only
However, the duplicate copy was attached was signed 7 pages.
by all the 3 witnesses in each and every page. The Court The Court disallowed the probate. The law is clear that
held that the inadvertent failure of one witness to affix his the attestation clause must state the number of pages
signature to one page of a testament, due to used upon which the will is written to prevent
simultaneous lifting of two pages (oversight) in the increase/decrease in pages to safeguard against perjury.
course of signing, is not per se sufficient to justify denial
of probate. Moreover, the will bears the coincident
imprint of the seal of the notary public.
Vda. De Ramos vs. CA (1978)

By signing the will, the witnesses impliedly certified to the

Abangan vs. Abangan (1919) truth of the facts which admit to probate, including the

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sufficiency of execution, the capacity of the testatrix, the Doctrine of Liberal Interpretation
absence of undue influence, and the like.

Article 809. In the absence of bad faith, forgery, or fraud,

Location of signature or undue and improper pressure and influence, defects
and imperfections in the form of attestation of in the
GR: Left margin of every page of the will except the last language used therein shall not render the will invalid if it
However, not mandatory in character is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of
Avera vs Garcia (1921) Article 805.
The instrument contains the necessary signatures on
every page and the only point of deviation from the
requirement of the statute is that these signatures This doctrine can only be applied to defects or
appear in the right margin instead of left. The will was still imperfections either in form of the attestation or in the
considered valid to attain the primordial ends as long as language used therein. It cannot be applied to defects
complete signatures. which are substantial such as when there is an absolute
omission in the attestation clause of one or more or all of
the essential facts which must be stated therein and such
omission cannot be cured by an examination of the entire
Rules in Arts. 807-808
will itself.

1. If the testator is deaf or deaf-mute, he must personally

Effect of defects or imperfections in the attestation
read the will if able to do so
clause: it will invalidate the will if the defect or omission is
2. If not, he shall designate two persons to read it and substantial in character and cannot be cured by an
communicate to him, in some practicable manner, the examination of the will itself. But if the defects are merely
contents thereof formal in character, the validity of the will is not affected
as long as it is proved that the will was executed in
3. If the testator is blind, the will shall be read to him compliance with Art. 805. (Doctrine of Liberal
twice: Interpretation)
a) Once by one of the subscribing witnesses

b) Once by the notary public before whom the will Cagro vs. Cagro (1953)
is acknowledged
The attestation clause is a memorandum of the facts
attending the execution of the will required by law to be
made by the attesting witnesses, and it must necessarily
Garcia vs. Vasquez (1970)
bear their signatures. An unsigned attestation clause
The testatrix executed 2 wills; one in 1956 consisting of cannot be considered as an act of the witnesses,
12 pages written in Spanish which is a language she since the omission of their signatures at the bottom
knew and spoke, witnessed by 3 persons and thereof negatives their participation.
acknowledged before a notary public and the other one
was in 1960 consisting of 1 page written in Tagalog, had
3 witnesses and acknowledged before a notary public. Notarial Acknowledgement - mandatory (applicable
The latter will was said to have been read “silently” by the only to ordinary wills)
testatrix before she signed it. The eyesight of the testatrix
in 1960 was already poor and defective that she could
not have read the provisions of the will. As declared by
Article 806. Every will must be acknowledged before a
her opthalmologist, although her left eye was operated
notary public by the testator and the witnesses. The
she can only see forms not read while her right eye can
notary public shall not be required to retain copy of the
only see distant objects; her vision remained mainly for
will, or file another with the office of the Clerk of Court.
viewing distant objects and not for reading fine print.
Thus, for all intents and purpose of the rules on probate,
the deceased testatrix was not unlike a blind testator and
the due execution of the will would have require the Cruz vs. Villasor (1973)
observation of Article 808. Atty. Angel Teves was one of the attesting witnesses and
acted as an acknowledging witness. The Court ruled that
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the will is invalid. The function of the notary public is to

guard against any illegal or immoral arrangement and
such function would be defeated if the notary public is Aluad vs. Aluad (2008)
one of the attesting witnesses as it would place him in The donation had only one witness, did not sign the
inconsistent position, violating article 806. To allow the attestation clause and did not acknowledge the will
notary public to act as attesting witness and before the notary public. Also, the will was not numbered
acknowledging witness at the same time would have the correlatively in letters placed on the upper part of each
effect of having only two witnesses to the will, violating page.
too article 805 which requires 3 or more witnesses.
The Deed of Donation in this case, as one of mortis
causa, not having followed the formalities of a will, is
Javellana vs. Ledesma (1955) void.

After the codicil was signed by the testatrix and

witnesses at the hospital, the notary public signed and 2. Holographic Wills (Arts. 810-814)
sealed the codicil in his office. The Court held that
whether or not the notary signed and sealed the
certification of acknowledgement in the presence of the
Article 810. A person may execute a holographic will
testatrix and witnesses, does not affect the validity of the
which must be entirely written, dated, and signed by the
codicil. The new Civil Code does not require that the
hand of the testator himself. It is subject to no other form,
signing of the testator, witnesses and notary should be
and may be made in or out of the Philippines, and need
accomplished in one single act. The subsequent signing
not be witnessed.
and sealing by the notary of his certification that the
testament was duly acknowledged by the participants
therein is no part of the acknowledgement itself nor the
testamentary act. Article 806 does not contain words SPECIAL FORMALITIES MUST BE: 4Es
requiring that the testator and witnesses should
acknowledge the testament on the same day or occasion
that it was executed. 1. Entirely written by the hand of the testator himself

2. Entirely dated by the hand of the testator himself

Ortega vs. Valmonte (2005) 3. Entirely signed by the hand of the testator himself; and
2 paged last will and testament - executed June 15, 1983 4. Executed in a language or dialect known to the
but notarized August 9, 1983. The Court held that the testator
conflict between the dates does not invalidate the
document because the law does not require that a
notarial will be executed and acknowledged on the same
Purpose: to deter and prevent any possible insertion or
occasion.
interpolation by others or any possible forgery

Guerrero vs. Bihis (2007)

Rules in insertions and interpolations by third
Did the will acknowledged by the testatrix and persons:
instrumental witnesses before a notray public acting
1. If the insertion was made AFTER the execution of the
outside the place of his commission satisfy the
will but WITHOUT CONSENT OF TESTATOR, such
requirement under Article 806 of the Civil Code? No.
insertion is considered as not written, because the
Acknowledgement can only be made before a competent
validity of the will cannot be defeated by the malice or
officer, a lawyer duly commissioned as a notary public.
caprice of a third person.
Under Article 240 of the Notarial Law, “No notary shall
possess authority to do any notarial act beyond the limits 2.If the insertion was made AFTER and WITH
of his jurisdiction.” Thus, Atty. Directo was not acting CONSENT, the will remains valid but the insertion is
within his authority hence the will was not duly void.
acknowledged which also renders it invalid.
3. If made AFTER and such insertion is VALIDATED BY
THE TESTATOR BY HIS SIGNATURE, it becomes part
of the will, and therefore, the entire will becomes void,
Donations Mortis Causa
because of failure to comply with the requirement that it
- effective upon death must be entirely written by the hand of the testator.
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4. If made CONTEMPORANEOUS to the execution of reason that nothing remains in the Will after that which
the will, the will is void because it is not entirely written could remain valid.
by the hand of the testator.

Probate of Holographic Will

Art. 810 does not require that the testator must sign the
will with his full signature. However, his full signature is
required when it comes to the authentication of an Article 811. In the probate of a holographic will, it shall be
insertion, cancellation, erasure or alteration. (Art. 814) 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
De Jesus vs. Roxas (1985) handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.
The contested will was dated “FEB/61”. Respondent
contends that the date must contain the day, month and In the absence of any competent witness referred to in
year, hence the will is void for non-compliance with Art. the preceding paragraph, and if the court deem it
810. The Court sustained the validity of the will. A necessary, expert testimony may be resorted to.
complete date is only necessary when there is 2
competing wills executed on the same day or of a
testator becoming insane on the day of the execution of Gan v. Yap (1958)
the will. If a will has been executed in substantial
compliance with the formalities of the law, and the Whether or not the will which is lost or destroyed may be
possibility of bad faith and fraud in the exercise thereof is admitted to probate upon the testimony of witnesses
obviated, said will should be admitted to probate. regarding its due execution and contents? Unlike in case
of holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. In
GR: month, day and year holographic wills the only guarantee of authenticity is the
handwriting itself while in ordinary, the testimony of
E: De Jesus Case provided no fraud, bad faith or testator subscribing or instrumental witnesses and the notary
is not insane public. The loss of the holographic will entails the loss of
the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate. In
Labrador vs. CA (1990) the case of holographic wills, if oral testimony were
admissible only one man could engineer the fraud; after
The date was written as month of March, 17th day in the making a clever and passable imitation of the
year of 1968, on the 2nd page of the will. It was handwriting and signature of the deceased. Therefore,
contended that the date is not in its usual place. However, the will having been lost as in this case it was not
the will has been dated in the hand of the testator himself presented, the forger may have purposely destroyed it.
in perfect compliance with Article 810. The law does not
specify a particular location where the date should be
placed in the will. The only requirements are that the Rodelas vs. Aranza (1982)
date be in the will itself and executed in the hand of the
testator. Whether or not a holographic will which was lost or
cannot be found can be proved by means of a
photostatic copy? Yes, because comparison can be
Kalaw vs. Relova (1984) made with the standard writings of the testator. The
authenticity of his handwriting can be determined by the
Ordinarily, when a number of erasures, corrections and probate court.
interlineations made by the testator in a holographic will
has not been noted under his signature, the will is not
thereby invalidated as a whole but at most only as Azaola vs. Singson (1960)
respects the particular words erased, corrected or
interlined. However, when the holographic will in dispute The rule of the first paragraph of Article 811 is merely
had only one substantial provision which was altered by directory and is not mandatory. In this case, since the
substituting the original heir with another, but which authenticity of the will was not contested, the appellant
alteration did not carry the requisite of full authentication can only present one witness “who knows the signature
by the full signature of the testator, the effect must be and handwriting of the testator” ; but even if it was
that the entire will is voided or revoked for the simple contested, Art. 811 cannot be interpreted as to require

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the compulsory presentation of 3 witnesses to identify by the law of the country in which he may be. Such will
the handwriting of the testator. may be probated in the Philippines.

DISPOSITIONS

- If he executes in the Philippines, the law which governs

the formal validity of the will shall be the law of the
Art. 812 - To be a valid, dispositions of the testator Philippines
written below his signature must be:
- If he executes outside the Philippines, the law of the
1. Dated by him; and country in which it is executed shall govern
2. Signed by him

When testator is an alien:

If the disposition is signed without being dated and the
last disposition has a signature and date, such date
validates the dispositions preceding it, whatever the time Article 816. The will of an alien who is abroad produces
of prior disposition. (Art. 813) effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in
Ajero vs. CA (1994) conformity with those which this Code prescribes.

Private respondents opposed the petition to probate the

holographic will on the ground that neither the If he executes in the Philippines, the law that governs is
testament’s body nor the signature therein was in either:
decedent’s handwriting; it contained alterations and
corrections which were not duly signed by the decedent 1. The law of the Philippines
and the will was procured through improper pressure and
undue influence. In case of holographic wills, what 2. The law of the country of which he is a citizen or
assures the authenticity is the requirement that they be subject (Art. 817)
totally autographic or handwritten by the testator himself
as provided in Art. 810. Failure to strictly observe other
formalities will not result in the disallowance of a If he executes outside of the Philippines:
holographic will. If the testator fails to sign and date
1. The law of the place where the will is executed
some of the dispositions, the result is that these
dispositions cannot be effectuated (Art. 813) but such 2. The law of the place in which he resides (Art. 816)
failure does not render the whole testament void.
3. The law of his country (Art. 816)

4. The law of the Philippines

Codoy vs. Calugay (1999)

If the authenticity is contested, 3 witnesses is mandatory

as the word “shall” in Art. 811 connotes a mandatory JOINT WILLS
order.

Article 818. Two or more persons cannot make a will

LAW WHICH GOVERNS FORMAL VALIDITY OF jointly, or in the same instrument, either for their
WILLS reciprocal benefit or for the benefit of a third person.

GR: Law of the country in which it is executed (Art. 17)

E: Arts. 815-819 supplement Perez v. Tolete (1994)

The spouses Cunanan executed a separate last will and

testament containing the same provisions. Whether or
When testator is a Filipino: not there should be separate probate proceedings? No.
Since the two wills contains essentially the same
provisions and pertain to property which in all probability
Article 815. When a Filipino is in a foreign country, he is are conjugal in nature, practical considerations dictate
authorized to make a will in any of the forms established
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their joint probate. The law prohibits joint execution not 4. Below 18
joint probate.
5. Any person who is blind, deaf or dumb

Article 819. Wills, prohibited by the preceding article,

executed by Filipinos in a foreign country shall not be Competency vs. Credibility
valid in the Philippines, even though authorized by the
laws of the country where they may have been executed.
Gonzales v. CA (1979)

Petitioner contends that a witness must not only be

- Applicable only to joint wills executed by Filipinos in a competent as provided under Arts. 820 and 821, but
foreign country must be credible too under Art. 805. The Court rejected
- Such shall not be valid in the Philippines even though this contention. The rule is that the instrumental
authorized by the laws of the country where they may witnesses in order to be competent must be shown to
have been executed have the qualifications under Art. 820 and none of the
disqualifications under Art. 821 and for their testimony to
be credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be first
QUALIFICATIONS AND DISQUALIFICATIONS OF established on record that the witnesses have a good
WITNESSES standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable for a
person is presumed to be such. What is necessary is that
Article 820. Any person of sound mind and of the age of the instrumental witnesses must be competent and their
eighteen years or more, and not blind, deaf or dumb, and testimonies must be credible before the court allows
able to read and write, may be a witness to the execution probate.
of a will mentioned in Article 805 of this Code.

Subsequent Incompetency of witnesses - It will not

Qualifications must be SENA: prevent the allowance of the will as long as they were
competent at the time of the attesting or execution of the
1. Sound mind
instrument. (Art. 822)
2. Eighteen years of age or more

3. Not blind, deaf or dumb; and

Competency of Interested Witness (Art. 823)
4. Able to read and write
GR: If he is a legatee, devisee under the will it is void

E: there are three other competent witnesses to such will

Article 821. The following are disqualified from being
witnesses to a will:
Competency of Creditor - competent (Art. 824)

1. Any person not domiciled in the Philippines

CODICILS
2. Those who have been convicted of falsification of a
document, perjury or false testimony.

Definition (Art. 825)

Disqualifications are CATABA: A codicil is a supplement or addition to a will made after
the execution of a will and annexed to be taken as part
1. Cannot read and write
thereof, which any disposition made in the original will is
1. Any person not domiciled in the Philippines explained, added to, or altered.

2. Those who have been convicted of falsification of a

document, prejury or false testimony
In order to be effective, it shall be executed as in the
3. Any person not of sound mind case of a will. (Art. 826)

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Five instances under the Civil Code:

INCORPORATIONS BY REFERENCE a) When there is a decree of legal separation. In

such case, provisions in favor of the offending
spouse made in the will of the innocent spouse
Article 827. If a will, executed as required by this Code, shall be revoked by operation of law.
incorporates into itself by reference any document or b) Where there is a preterition of omission of one,
paper, such document or paper shall not be considered a some, or all of the complusory heirs in the
part of the will unless the following requisites are present: direct line, whether living at the time of the
1. The document or paper referred to in the will must be execution of the will or born after death of the
in existence at the time of the execution of the will testator. In such case, the preterition shall
annul and institution of heir.
2. The will must clearly describe and identify the same,
stating among other things the number of pages thereof c) When in the testator’s will there is a legacy of a
credit against third person or of remission of
3. It must be identified by clear and satisfactory proof as debt of the legatee, and subsequently, after the
the document or paper referred to therein; and execution of the will, the testator brings an
action against the debtor for the payment of his
4. It must be signed by the testator and the witnesses on
debt. In such case, the legacy is revoked.
each and every page, except in case of voluminous
books of account or inventories d) When the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or denomination it had, or
REVOCATION OF WILLS when he alienates by any title or for any cause
the thing bequeathed or any part thereof, or
when the thing bequeathed is totally lost during
the testator’s lifetime or after his death without
Article 828. A will may be revoked by the testator at any
the heir’s fault. In such cases, the legacy is
time before his death. Any waiver or restriction of this
revoked.
right is void.
e) When the heir, devisee or legatee commits any
of the acts of unworthiness which by express
- Upon being revoked, the will or testamentary provision of law will incapacitate a person to
disposition intended to be revoked, ceases to exist and is succeed. In such case, any testamentary
as inoperative as if it has never been written. disposition in favor of such heir, devisee or
legatee is revoked.
Laws governing revocation (Art. 829)

1. If the act of revocation takes place in the Philippines, it

essential that it must be done in accordance with the 2. By some will, codicil, or other writing executed as
laws of the Philippines regardless whether the testator is provided in cases of wills; or
domiciled here or in some other country.
Express: If when in a subsequent will, codicil or other
2. If it takes place outside the Philippines done by a writing there is a revocatory clause expressly revoking
testator who is domiciled here, it is essential that it must the will or a part thereof; the intention of the testator to
be done in accordance with the laws of the Philippines. revoke must be clearly and unmistakably manifested

3. If it takes place outside the Philippines by a testator

who is not domiciled here, it is essential that it must be
Article 832. A revocation made in a subsequent will
done either in accordance with the laws of the place
shall take effect, even if the new will should become
where the will was made or in accordance with the laws
inoperative by reason of the incapacity of the heirs,
of the place where the testator had his domicile at the
devisees or legatees designated therein, or by their
time of revocation.
renunciation.

- the revocatory clause must be entirely separated

GR: No will shall be revoked except in the following from the other testamentary dispositions which are
cases: (Art. 830) affected by the incapacity or the renunciation of the heirs,
devisees or legatees.

1. By implication of law; or
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As regards revocation by codicil: if revocation is partial, it presence. The intention of revoking the will is manifest.
will have the effect of republishing the will as of the date (animo revocandi)
of the codicil with respect to all parts not revoked but if
the revocation is total, there is no republication.
Maloto vs. CA (1988)

As regards revocation by nontestamentary writing, it is It is clear that the physical act of destruction of a will, like
not essential that the writing should contain any burning in this case does not per se constitute an
affirmative disposition of property. effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. Animus
revocandi is only one of the necessary elements for the
effective revocation of the last will and testament. The
Implied: when the provisions of the subsequent will or intention to revoke must be accompanied by the overt
codicil are partially or absolutely inconsistent with those physical act of burning, tearing, obliterating or cancelling
of the previous will the will carried out by the testator or by another person in
his presence by his express direction. These
requirements were not proven in this case. It was not
Article 831.Subsequent will which do not revoke the established that the document burned by the maid of the
previous ones in an express manner, annul only such testator is actual will made by the latter, in his presence
dispositions in the prior wills as are inconsistent with or and by his express direction.
contrary to those contained in the later wills.

Presumption of Revocation:
3. By burning, tearing, canceling or obliterating the
will with the intention of revoking it, by the testator 1. Where the will cannot be found following the death of
himself, or by some other person in his presence, the testator and it was shown that it was in the testator’s
and by his express direction. If burned, torn, possession when last seen, the presumption is, in the
cancelled, or obliterated by some other person, absence of other evidence, that he must have destroyed
without the express direction of the testator, the will it animo revocandi (Gago vs. Mamuyac)
may still be established, and the estate distributed in 2. Where the will cannot be found following the death ot
accordance therewith, if its contents, and due the testator and it is shown that the testator had ready
execution and the fact of its unauthorized access to it, the presumption is, in the absence of other
destruction, cancellation, or obliteration are evidence, that he must have destroyed it animo
established according to the Rules of Court. revocandi

3. Where it is shown that the will is in the custody of the

Physical Destruction Requisites: TAPI testator after execution, and subsequently found among
testator’s effects after his death in such a state of
1. Testator must have testamentary capacity at the time mutilation, cancellation or obliteration as represents
of performing the act of destruction sufficient act of revocation, it will be presumed in that
such was performed by the testator.
2. Act of destruction must have been performed with
intention (animo revocandi) 4. Doctrine of conditional or dependent relative
revocation - if the testator revokes a will with a present
3. Performed by the testator himself or by some other
intention of making a new one immediately and as
person in his presence, and by his express direction
substitute, and the new will is not made, or if made but
(personal act)
fails to effect for any reason, it will be presumed that the
4. Intention must have been accompanied by an actual testator preferred the old will to intestacy and the old one
physical act of destruction manifested by the acts will be admitted to probate.
mention in Par. 3 (Art. 830)

Molo v. Molo (1951)

Diaz vs. De Leon (1922)
2 will - 1918 and 1939, the latter allegedly contains a
It appears that the testator shortly after the execution of revocatory clause nullifying the 1918 will. However, the
the will asked the same be returned to him, ordered his 1939 will was not done in accordance with the provisions
servant to tear the document which was done in his of the law. It is universally agreed that where the second
will is invalid on account of not being executed in
accordance with the provisions of the statute, or where
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the testator who has not sufficient mental capacity to Article 837. If after making a will, the testator makes a
make a will is procured through undue influence, of the second will expressly revoking the first, the revocation of
such, in other words, where the second will is really no the second will does not revive the first will, which can be
will, it does not revoked the first will or affect it in any revived only by another will or codicil.
manner. (Doctrine of Conditional or dependent relative
revocation applies)
- The only way by which a previously revoked will may be
revived is through another will or codicil hence, the
Revocation by Mistake (Art. 833) testator will have to make another will or codicil either
reproducing the contents of the revoked will or
Where a testator by a codicil or later will revokes a incorporating thereto such revoked will be reference in
devise or legacy in his will, expressly grounding such accordance with Art. 837
revocation on the assumption of a fact which turns out to
be false, the revocation does not take effect.
ALLOWANCE OF WILLS (Art. 838)

Effect of Revocation upon Recognition of Child (Art.

834) Nature of Probate: Not an ordinary civil action but a
proceeding in rem, binding on all persons in interest
The revocation of the will where an illegitimate child is whether they appear to contest the probate or not. Thus,
acknowledged by the testator as his natural child will not Notice of time and place of hearing is required to be
affect the validity of the recognition or acknowledgement. published (ROC)

REPUBLICATION OF WILLS - either express or Necessity of Probate (Art. 833 par. 1): MANDATORY - It
constructive revocation is within the jurisdiction of a probate court to approve the
sale of property of a deceased person by his prospective
heirs or administrator before final adjudication otherwise,
such sale is null and void and title does not pass to the
Express purchaser.
Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form. Guevara vs. Guevara
“Even if the decedent left no debts and nobody raises
any question to the authenticity and due execution of the
- It is express if the testator reproduces in a subsequent will, none of the heirs may sue for the partition of the
will the dispositions in a previous one which is void as to estate in accordance with that will without first securing
its form. its allowance or probate by the court, first, because the
law expressly provides that no will shall pass either real
- Its purposes is to cure the will of its formal defects or personal estate unless it is proved and allowed in the
proper court. Second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with
and substituted by any other proceeding, judicial or
Constructive extrajudicial, without offending against public policy
Article 836. The execution of a codicil referring to a designed to effectuate the testator’s rights to dispose of
his property by will in accordance with law and to protect
previous will has the effect of republishing the will as
the rights of the heirs and legatees under the will and to
modified by the codicil.
protect the rights of the heirs and legatees under the will
thru the means provided by the law.”

- It is constructive if the testator for some reason or

another executes a codicil to his will Lasam vs. Umengan (2006)
The Last Will and Testament cannot be relied upon to
establish the right of possession without having been
REVIVAL OF WILLS (Art. 837) probated, the said last will and testament could not be
- is the restoration to validity of a previously revoked will the source of any right. Article 838 of the Civil Code is
instructive. Before any will can have force or validity, it
by operation of law.
must be probated. Since the will was not probated, it has

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no effect and cannot be the basis of any claim of the right available to prove the voluntariness of his actions, aside
of possession. from the fact that the transfer of the estate is usually
onerous in nature and that no one is presumed to give
Statute of limitations is not applicable to the probate - Nemo praesumitur donare. No intestate distribution of
of wills because such proceedings are not established in the estate can be done until and unless the will had failed
the interest of the surviving heirs but primarily for the to pass both its extrinsic and intrinsic validity. If the will is
protection of the testator’s expressed wishes. extrinsically void, the rules of intestacy apply regardless
of the intrinsic validity thereof. If it is extrinsically valid,
the next test is to determine its intrinsic validity that is
Questions Determinable by the Probate Court: ICE whether the provisions of the will are valid according to
the laws of succession. In this case, the court had ruled
1. WON the instrument which is offered for probate is the that the will of Alejandro was extrinsically valid but the
last will and testament of the decedent (question of intrinsic provisions thereof were void. Thus, the rules of
identity) intestacy apply as correctly held by the trial court.
2. WON the testator had testamentary capacity at the WHEN PROBATE COMMENCED (Art. 838 par. 2)
time of the execution of the will (question of capacity)
1. Probate ante mortem / During the testator lifetime -
3. WON the will has been executed in accordance with testator himself files the petition for probate
the formalities prescribed by law (question of due
execution) 2. Probate post mortem / After his death - it is any person
interested in the estate who files

GR: The probate court cannot inquire into the intrinsic

validity of testamentary disposition Procedure in Probate Proceeding

E: Given the exceptional circumstances (the will is - The pertinent provisions of the Rules of Court for the
intrinsically void), the probate court is not powerless to allowance of wills after the testators death shall govern ,
do what the situation constrains it to do and pass upon whether the will is presented during testator’s lifetime or
certain provisions of the will (Nepomuceno vs CA, where after his death (Art. 838 par. 2)
the probate court declared the donation void under Arts.
739 and 1028 as having been made between persons - The Supreme Court shall formulate additional Rules as
who are guilty of adultery or concubinage at the time of may be necessary (Art. 838 par. 3; see Art 811)
the execution of the will)

Effect of allowance of Will: CONCLUSIVE (Art. 838

Dorotheo vs. CA (1999) par. 4)

It should be noted that probate proceedings deals - not subject to collateral attack; it stands as final if not
generally with the extrinsic validity of the will sought to be modified, set aside or revoked by a direct proceeding
probated, particularly on three aspects: whether the will
submitted is indeed, the decedents last will and
testament; compliance with the prescribed formalities for Gallanosa v. Arcangel
the execution of wills; the testamentary capacity of the
testator; and the due execution of the last will and The decree of probate is conclusive as to the due
testament. Under the Civil Code, due execution includes execution or formal validity of the will. That means that
a determination of whether the testator was of sound and the testator was of sound and disposing mind at the time
disposing mind at the time of its execution, that he had he executed the will and was not acting under duress,
freely executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was
fraud, menace or undue influence and that the will is signed by him in the presence of the required number of
genuine and not a forgery, that he was of the proper witnesses, and that the will is genuine. Accordingly,
testamentary age and that he is a person not expressly these facts cannot again be questioned in a subsequent
prohibited by law from making a will. proceeding, not even in a criminal action for the forgery
of the will. After the finality of the allowance of a will, the
The intrinsic validity is another matter and questions issue as to the voluntariness of its execution cannot be
regarding the same may still be raised even after the will raised anymore. The SC also held that the decree
has been authenticated. Thus, it does not necessarily of adjudication, having rendered in a proceeding in rem,
follow that an extrinsically valid last will and testament is is binding upon the whole world.
always intrinsically valid. It can be clearly inferred from
Article 960 of the Civil Code, on the law of successional Manahan vs Manahan
rights that testacy is preferred to intestacy. But before Once a will has been authenticated and admitted to
there could be testate distribution, the will must pass the probate, questions relative to the validity thereof can no
scrutinizing test and safeguards provided by law more be raised on appeal. The decree of probate is
considering that the deceased testator is no longer conclusive with respect to the due execution thereof and
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it cannot impugned on any of the grounds authorized by - To establish undue influence it must be shown that the
law, except that of fraud, in any separate or independent influence exerted upon the testator was such as to
action or proceedings. amount to force, coercion, or importunities which he
could not resist.
When allowance may be set aside:

1. By means of appeal (Art 838 par. 4)

5. If the signature of the testator was procured by
2. By means of a petition for relief from the judgment by fraud
reason of fraud, accident, mistake or excusable
negligence (Sections 2 and 3 of ROC) - Fraud is present to invalidate a will if by
misrepresentation and deception the testator is led into
3. By means of petition to set aside the judgment by making a will different from what he would have made
reason of lack of jurisdiction or lack of procedural due but for the misrepresentation and deception
process
- Any trick, deception, or artifice by which the testator is
4. By means of an action to annul and judgment by so circumvented, cheated, or deceived as to fall into
reason of extrinsic or collateral fraud error respecting the disposition of his property

- Intent to deceive the decedent is an essential element

EXCLUSIVE GROUNDS FOR DISALLOWANCE OF of fraud avoiding a will in the absence of any element of
WILLS (Art. 839) undue influence

1. If the formalities required by law have not been 6. If the testator acted by mistake or did not intend
complied with that the instrument he signed should be his will at
the time of affixing his signature thereto
- Chapter 2, Subsection 3
- Mistake which will invalidate a will is a mistake as to the
2. If the testator was insane, or otherwise mentally identity or character of the instrument which he signed,
incapable of making a will, at the time of execution as well as a mistake as to the contents of the will itself.

- Art. 798 - Mistake in the execution not mistake in the expression

3. If it was executed through force or under duress,

or the influence of fear, or threats

- There is violence when in order to compel the testator

to execute the will, serious or irresistible force is
employed

- There is intimidation when the testator is compelled by

a reasonable and well-grounded fear of an imminent and
grave evil upon his person or property, or upon his
spouse, descendants or ascendants, to execute the will

- Whether the violence or intimidation is employed by a

beneficiary or by a stranger is immaterial

4. If it was procured by undue and improper pressure

and influence, on the part of the beneficiary or of
some other person

- There is undue influence when a person takes improper

advantage of his power over the will of another, depriving
the latter of a reasonable freedom of choice; such must
be directly connected with the execution of the
instrument and was present and operating directly upon
the mind of the testator

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