WILLS AND SUCCESSION

Atty. Jan Jason G. Lumanag

2nd Part

SOURCES: Paras, Atty. Yang Yang-Espejo Notes, Mison, Lecturer’s undergrad notes.
Article 800. 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)

Under this article, the presumption is that the testator is of sound mind. And because
there is a presumption that the testator is of sound mind, the burden of proving otherwise,
rest upon the person who opposes the probate of the will.

Question: What is required to discharge the burden of the soundness of mind?

The burden of proof is clear and convincing evidence.

Instances when the testator would not presumed of sound mind.

1. If the testator , one month , or less , before making his will was publicly known to be
insane.
2. When the testator was judicially declared insane before making the will.

Take note: proof to the contrary may be allowed. So even if there was a judicial
declaration but again proof to the contrary may be allowed. So this is only a
rebuttable presumption.

3. Insanity of the general or permanent in nature show to have existed at one

time is presumed to have continued.

This is based in the Rules of Court under Rule 131 section 3 (ee)
Disputable presumption – the following presumptions are satisfactory if
uncontracted, but may be contracted and overcome by other evidence; xxxxx that
a thing once proved to exist continues as long as is usual with things of nature.
For instance:
When a person was born an idiot or imbecile. So since birth ingon ana
ilang status and there was never a time na Nakita nimo na tarong or na
ayo sya, then nawala sya and later on namatay sya and then it was
discovered that naa sya last will and testament. (presumed that he has
property ha)

What is the presumption?

Here, he is presumed that such mental condition (idiot or imbecile)
continued because it was already established that he was in that
mental condition and for a long time he had been in that condition. So
here, it is a presumption under the Rules of Court.

But again, you can still present proof to the contrary.

In these cases, how do establish soundness of mind?
1 you may use the testimony of the notary public.
As a general rule the testimony of a notary public is entitled to great
weight. Except in the case of Ramirez v. Ramirez.

In RAMIREZ V. RAMIREZ the supreme court held that where the

testimony of the notary public were far from satisfactory , vague,
evasive and tend to beg the very issue as where he could not say, but
merely supposed that the testatrix had recollection of her properties,
or of the relatives who would logically inherit from her and when asked
to explain his answer to the question concerning her mental state, he
simply referred to the certification in the will on that point, and so
declined to fully commit himself, such testimony fails to establish
testamentary capacity.
2. The testimony of the attesting witnesses
In notarial wills there are at least 3 witnesses. They attest the testator’s
signing the will and they attest that the testator was of unsound mind at the
time of executing the will.

3. The testimony of the attending physician

The testimony should be given the highest regard but subject to the
condition that the physician was present at the time of the execution of the
will.

In SAMSON V CORRALES, the Supreme court held that in sofar as the

physician is concerned, his testimony should be given highest regard if he
was present during the execution of the will. In this case, the doctor merely
gave professional opinion or speculation, he was not the attending physician.
So as against the testimony of the doctor who was not the attending
physician and the testimony of the attesting witnesses, the court gave
credence to the testimony of the latter.
Question: How about the testimony of other people who know about
the testator but were not present at the time of the execution?

The testimony of other witnesses may be received in evidence also

provided that their testimony proceeds from particular fact upon which
their conclusions are based.

Basis? Under the rules on evidence: A person may testify as to the

mental sanity of a person with whom he is sufficiently acquainted.
Article 801. Supervening incapacity does not invalidate an effective will,
nor is the will of an incapable validated by the supervening of capacity. (n)

Question: Even if after he made the will, he became insane, would the will
be affected?
Answer: No, the will would still remain to be valid. The supervening
incapacity does not invalidate an effective will.

Question: we have an insane testator, he made a will, and he made several

dispositions and then later on, he was cured, and he discovered that he
made a will. So he read it, and he was so impressed by what he read and
so he decided to keep that document as his will (he was already sane at
this time). Is the will valid?
Answer: No, article 801 provides that Supervening incapacity does not
invalidate an effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)
So kung gusto jud niya na kato iya will unsaon man?
REPUBLICATION. We should follow the proper procedure on
Republication.

Article 802. A married woman may make a will without the consent of
her husband, and without the authority of the court. (n)
Article 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property. (n)

Question. What can the married woman/ man dispose of in a will

1. Separate property
2. Share in the conjugal/community property
 SUBSECTION 3: FORMS OF WILLS

2 kinds of wills
1 Notarial will
2 Holographic will

Question: What are nuncupative wills?

Answer: Nuncupative wills are orally made by the testator in
contemplation of death and before competent witnesses. Article 804 of
the civil code provides that wills should be in writing , then
nuncupative wills are not recognized in the Philippines.
Article 804. Every will must be in writing and executed in a language
or dialect known to the testator. (n)
Question: Differentiate a notarial from holographic will.
NOTARIAL HOLOGRAPHIC

MUST BE WRITTEN MUST BE HANDWRITTEN

SUBSCRIBED BY 3 WITNESSES
MUST HAVE AN ATTESTATION CLAUSE
ADDITIONS AFTER THE SIGNATURE
MAKES THE WILL VOID
SIGNED BY TESTATOR OR SIGNED BY
ANOTHER PERSON AUTHORIZED BY
TESTATOR
NO WITNESSES NECESSARY
NO NEED FOR ATTESTATION CLAUSE BUT
MUST BE DATED (ALL PAGES)
ADDITIONS AFTER THE SIGNATURE DOES
NOT INVALIDATE A WILL
ONLY THE TESTATOR CAN SIGN HIS
SIGNATURE

MUST BE ACKNOWLEDGE BY THE NO NEED FOR ACKNOWLEDGMENT

TESTATOR AND WITNESSES BEFORE A
NOTARY PUBLIC
Question: who should write the will or should should do the
mechanical act of writing a will.
Answer: If the will is holographic will, the mechanical act of writing a
the will cannot be delegated. However, if it is a notarial will, the
mechanical act of writing the will may be delegated to a 3rd person or a
lawyer as long as the will is signed by the testator or by some other
person under his express direction and in the presence of testator.

Question: what form of writing is required?

Answer: with respect to medium, you can write in a peper, piece of
wood, anything that admits of writing. It could be a ball pen, signing
pen, and ink may be of different colors. It may be embodied in asingle
or several sheets of paper.
As to number of copies, the testator may produce only one because the
notary pblic is not required to keep copies of the wills. However, the
testator may want to give copies to his friends or family.
Question: In what language should the testator execute his will?
Answer: Under article 804, it must be in a language or dialect known to
the testator. He need not know the correct grammar as long as he
understands the language. Take note. It is not required that the
language used should be uniform.

Take note of this!

For every will, there is a presumption that the testator knew the
language used in writing the will.

Why? Because there is no statutory requirement that the will should

allege that the language used therein is understood by the testator.
In ABANGAN V. ABANGAN the Supreme Court held that , while actually
the testatrix here lived in a neighboring place not in Cebu. But still
there is a presumption that she knew the language of Cebu, the locality
she live near thereto. In the absence of proof to the contrary, it is
presumed that she knew this dialect in which her will was written.

In REYES V. VIDAL , the Supreme Court held that, the fact that the
testatrix was a mestiza espanola, was married to a Spaniard , made
several trip to Spain and some of her letters submitted as evidence by
the oppositor were written in Spanish by the testatrix in her own
writing gives rise to the presumption that the testatrix knew the
language in which the testament has been written, which presumption
should stand unless the contrary is proven.
In TESTATE ESTATE OF ABADA V ABAJA, the Supreme Court held that there is
no statutory requirement to state in the will itself that the testator knew the
language or dialect used in the will.

In ACOP V. PIRASO, the Supreme Court delves that In the instant case, not
only it is NOT PROVEN that English is the language of the City of Baguio
where the deceased Piraso lived and where the will was drawn, but that the
record contains positive proof that said Paraiso knew no other language than
the Iggorote dialect, with a smattering of Ilocano. That is, he did not know
the English language in which the will is written.

In TESTATE ESTATE OF JAVELLANA V. JAVELLANA, the supreme court held

that it is true that there is no statutory provision that requires that will
should allege that the language used therein is understood by the testator. In
this case, no evidence presented that the testator new of the Spanish
language. On the contrary , there is an evidence that the testator is a visayan
residing in San Juan, Rizal at the time of his death. There is no evidence that
Spanish is the language currently used either in San Juan, Rizal or Manila. It
follows therefore that no presumption can arise that the testator knew the
Spanish Language.
TAKE NOTE: IN THE BAR EXAMS, look at the language used in the will. Look
at the facts of the case relating to the circumstances of the testator.

For instance: the language used in the will is French and the testator was
B’laan, and he resides in Mt. Apo, then nay oppositor. Is the will valid? No.
Facts are contrary to the will.

You can also use or answer that:

Under the law, there is a presumption that the testator knew of the
language he used in the will, however the presumption did not arise in this
case. In Javellana v. Javellana the Supreme Court invalidates a wil when the
facts of the case clearly shows that there is no connection between the
language used in the will and the circumstances of the testator.

But if the problem is silent lang. Then you can safely answer the
presumption.
In SUROZA v. HONRADO, the Supreme Court held that while in the
opening paragraph of the will, it was stated that English was a language
understood and known to the testatrix. But in its concluding paragraph,
it was stated that the will was read to the testatrix “and translated into
Filipino language”. That could only mean that the will was written in a
language not known to the illiterate testatrix.

Question: How about with respect to the attesting witnesses because

notarial will are attested by at least 3 witnesses. Should these
witnesses know the language or dialect in which the will is written?
Answer: No. they are not required to know the language used in the
body of the will.

Question: How about the attestation clause?

Answer: It is not required that these witnesses know or understand
because there is a requirement that if they do not know the language
or dialect in the attestation clause, it shall be explained to them .
Question: Is it important to place in the will the date of the
execution?
Answer.:
With respect to notarial or ordinary will, the date is not an important
requirement for as long as it is made during the lifetime of the testator.
But the date becomes material when there are 2 or more wills. So that
we will know which of the wills was executed ahead and which is
executed later because in the law on succession, there is a revocation.

With respect to Holographic will, the date is very important. Because

holographic wills are written, dated and signed in the hand of the
testator. Any disposition after the date becomes invalid unless that
other disposition again bears another date, another signature.
Question: How about electronic document? Are wills covered by electronic evidence
law?
Answer. No. First electronic evidence refers to contract, instruments, a will is not a
contract. Second, wills must be handwritten, for example in holographic wills.

Article 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)
Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the requisite
that the will be “attested and subscribed by (instrumental witnesses)”
– the respective intents behind these two classes of signature are
distinct from each other.

Requirements for a notarial will

1. Must be in writing (handwritten, typed or printed, material on
which it is written is immaterial).
2. The will must be executed in a language or dialect known to the
testator.
3. The will must be subscribed (signed) at the end thereof by the
testator himself or by the testator’s name written by another
person in his presence, and by his express direction.
End of the will, means the LOGICAL , not the physical end of the will.
Thus if a will starts on the 1st page, continues on the 3rd page, but it is
concluded in the 2nd page , the end of the 2nd page is the logical end.

A testator can sign with his thumbmark or with his initials (YAP TUA C
YAP KA KUAN)

A testator can sign with a mere cross if he intends that to be his

signature ( LEARIO V. LEANO) (dapat sya naghimo)

The delegate must sign in the TESTATOR’S PRESENCE (this does not
necessarily mean that the testator must actually see the signing; it is
enough that he could have done so, or felt it – as when he is blind)-
without any physical obstruction, had he wanted to.
In TABOADA V ROSAL , article 805 uses the terms attested and subscribed.
Attestation consists in witnessing the testator’s execution of the will in order
to see and take note mentally that those things are done which the statute
requires for the execution of a will and that the signature of the testator exists
as a fact.

4. The will must be attested and subscribed by 3 or more credible witnesses in

the presence of the testator and of one another.

Thus requirement is aside from the other requirement that there must be an
attestation clause, because this requires an ATTESTING. Aside from attesting
itself , there must be proof of such attesting and this proof is what we call the
Attestation Clause.

in the presence does not necessarily require actually seeing, but possibility of
seeing without any physical obstruction.
Purpose of requiring presence : it is to avoid fraudulent substitution of the
will and to make more difficult the invention of false testimony by the
witnesses, since they may be the witnesses of one another.

5. The testator or the person requested by him to write his name, and the
instrumental witnesses of the will shall sign each and every page thereof
except the last, on the left margin.

Take note: the law says page not sheet. A sheet has two pages, the front and
reverse sides; if both are used, both must be paged.

Take note: the last page need not be signed on the margin, since the
signatures already appear at the end. (so therefore it is wrong to say that
the last page needs no signature at all.)
Take note: whenever the marginal signatures are required, although the law says
left margin, the purpose is served if there are on the right top or bottom margin.

Failure to have the marginal signatures of the testator and of the witnesses, when
needed, is a FATAL defect.

A credible witness is a one possessed of the qualifications imposed by law. He

must be able or competent to testify.

Witness can sign with a cross or mark, provided that such is the usual signature,
and provided further, that he really knows how to read and write.

6. All the pages shall be numbered correlatively in letters placed on the upper part
of each page.

Correlative numbering in letter – means “One” , “two”, “three” but “A”, “B”, “C”
would be sufficient.
7. The attestation (attestation clause) shall provide:

1. The number of pages used- upon which the will is written;

2. That the testator signed (or expressly caused another person to sign) the
will and every page thereof in the presence of the instrumental witnesses.
3. The instrumental witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

While article 809 requires mere substantial compliance- still – the

failure of the attestation clause to state the number of pages is a fatal
defect.

The attestation is , properly speaking m not part of the will itself, but same
may of course be incorporated into the will itself. Or it may be written in a
separate page.
Question. Suppose the attestation clause of a notarial will fails to state
that the testator signed the will in the presence of the witnesses, will
the will be considered valid or void?
Answer: It is submitted that the will is VOID.

Article 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)

Take note maski “every will”, it is understood to refer only to notarial or

ordinary wills.

This is evident because the law says that the acknowledgment should
be “ by the testator and the witnesses”, and holographic WILL needs no
witnesses.
A notarial will not acknowledged before a notary public by testator and
the witnesses is Fatally Defective . This is even if it is subscribed and
sworn to before a notary public.

Question: What is acknowledgment?

Answer: This is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed.

Question: What is jurat?

Answer: A jurat is that part of an affidavit whereby the notary certifies
that before him, the document was subscribed and sworn by the
executor.
Article 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)