WILLS

DEFINITION OF WILL:

• It is an act whereby a person is permitted with the formalities

prescribed by law, to control to a certain degree the disposition of his
estate to take effect after his death. (Art. 783 NCC)
KINDS OF WILL:

1) Holographic will – it is a will entirely written, dated and signed by the

hands of the testator. No witnesses required; no marginal
signatures required; no acknowledgement and no notarization
required.
2) Notarial or Ordinary will – one which must be acknowledged before
a notary public by the testator and the witnesses. (Art. 806)
WHO CAN MAKE A WILL?

1) All persons who are not expressly prohibited by law may make a will
(Art. 796)
2) Either sex at least 18 years of age; of sound mind at the time of the
execution of the will (Arts. 797-798 NCC)
CHARACTERISTICS OF A WILL:
1) Statutory
2) Unilateral (heirs cannot accept while testator is alive)
3) Solemn or formal
4) There must be animus testandi
5) Strictly personal (cannot be left to the discretion of a 3rd person)
6) Effective mortis causa
7) Revocable or ambulatory
VALIDITY OF WILLS:

1) As to extrinsic validity – depend on the law in force at the time of

the execution (Art. 17; 795 NCC)
2) As to intrinsic validity – it is governed by law in force at the time of
the death of the decedent
FORMS OF A WILL:

• It must be in writing and executed in a language or dialect known to

the testator. (Art. 804 NCC)
• NOTE: In case of holographic will, it is required that it must be written
in its entirety by the hands of the testator.
PROBATE OF WILL (ALLOWANCE OF THE
WILL)
• It is a special proceeding.
• It is the act of proving before a competent court the execution of a will
by a person with testamentary capacity and approval of the same will
by the court.
• NOTE: The procedure to be followed is provided under Rule 73-90 of
the 1997 Rules of Court
NECESSITY OF PROBATE:

1) No will shall pass real or personal property unless proved and

allowed in accordance with the Rules of Court. (Art. 838 NCC)
2) It is conclusive as to:
 Due execution of the will
 Testamentary capacity of the testator
KINDS OF PROBATE:

I. During testator’s life (ante mortem probate)

This is to enable the testator to correct at once legal infirmities
To prevent or minimize fraud, intimidation or undue influence in
the execution of the will
It probated during lifetime of the testator, the only question left
after his death would be the intrinsic validity of the disposition.
II. After death of the testator (post mortem probate)
During the probate proceeding, the court shall:
Order the probate of the will
Grant letter testamentary or letters with a will annexed
Hear and approve claim against the estate
Order payment of lawful debts
Authorize the sale, mortgage or other encumbrances of real
property
Direct the delivery of the property to those who are entitled
GROUNDS FOR DISALLOWANCE OF
PROBATE OF WILLS:
• Those grounds of disallowance of wills enumerated in Art. 839 of the
NCC are EXCLUSIVE and no other grounds can serve to disallow a
will (Pecson vs Coronel 45 Phil. 216)
• NOTE: There is no undue influence if the testator gives the whole free
portion to an illegitimate child or mistress. Mere affection, although
illegitimate is not undue influence, as long as the giving was voluntary.
(Coso vs Fernandez 42 Phil. 596) However, a mistress is incapacitated
to inherit, on ground of public morality and public policy. (Art. 1028 in
relation to Art. 739 NCC)
• As a rule, in probate proceedings, the Court will not look into the
intrinsic validity of the provisions of the will.
• EXCEPTION: When the only testamentary disposition under the will is
the giving of the free portion since legitimes are provided by law, the
court may consider the intrinsic validity of the said will. (Nuguid vs
Nuguid et. al L-23445 June 23, 1966; Nepomuceno vs CA L-62952
October 9, 1985)
WHAT IS THE “TWO READING RULE”?

• 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.
INSTITUTION OF HEIR
WHO IS AN HEIR?

• A person called to succession either by provisions of the will or by

operation of law (Art. 782 NCC)
INSTITUTION OF HEIR:

• It is an act by virtue by which a testator designates in his will the

person or persons who are to succeed him in his property and
transmissible rights and obligations. (Art. 840 NCC)
• When a person is instituted to a fractional portion of the estate, he is
called an Heir; if a person is supposed to receive a specific property
comprising the estate, he is called either Legatee or Devisee.
REQUISITES OF A VALID INSTITUTION:

1) This will must be EXTRINSICALLY and INTRINSICALLY valid

2) The instituted heir must be identifiable or ascertainable
3) Refers only to voluntary heir, it cannot affect legitime
4) Exists only in testamentary succession
5) There must be no preterition
REQUISITES OF A VALID INSTITUTION:

6) Applicable also to devisees and legatees

7) Even a conceived child can be instituted
8) The instituted heirs can be both compulsory and voluntary heirs
9) Must be effective – that there be no predecease, no repudiation by
the heirs or incapacity of the heirs
PRINCIPLES IN THE INSTITUTION OF
HEIRS:
1) Equality – heirs instituted without designation of shares shall inherit
in equal shares
2) Individuality – heirs collectively instituted are deemed individually
named
3) Simultaneity – several heirs instituted simultaneously and not
successively
KINDS OF HEIRS:

1) Compulsory heir – one for whom legitime is reserved by law

– must be in the direct line, whether
descending or ascending such as the:
(a) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(b) The legitimate parents and ascendants with respect to their
legitimate children and descendants
 (c) Illegitimate children – no distinction between a direct line by
consanguinity or by fiction of law. Hence, an adopted child is
considered a compulsory heir (Nuguid vs Nuguid 17 SCRA 449)

2) Voluntary heir – is one whose share is chargeable against the free

portion of the estate
PRETERITION
Defined as: It is the omission in the testator’s
Will of one some or all of the
compulsory heirs in the direct line,
whether living at the time of the
execution of the will or born after
the death of the testator. It is also
called pretermission.
It is the omission in the testator’s Will of the
compulsory heirs in the direct line, or anyone
of them, either because they are not mentioned
therein or although mentioned, they are neither
instituted as heirs nor expressly disinherited.
(Neri vs. Akutin 74 Phil. 185; Nuguid vs. Nuguid
17 SCRA 449)
Requisites:
1) the heir omitted must be a compulsory heir in
the direct line

2) The omission must be total and complete in

character in such a way that the omitted heir does
not and has not received anything at all from the
testator or by any title whatsoever.

3) The omitted heir must survive the testator

EFFECT OF PRETERITION

The effect is to annul entirely the

institution of heirs; but legacies
and devises shall be valid in so
far as they are not inofficious.
Signed in the presence of:
1) that the testator subscribed to and professed
before the (3) witnesses that the document
was his last Will;
2) that the testator signed the Will at the left
margin of each page of the will in the
presence of those (3) witnesses
(Testate of Alipio Abado vs. Alipio Abaja et. al.,
GR#147145 1/31/2005
Effects of alterations, cancellations, erasures of a
holographic Will – testator must authenticate
by his full signature but the Will is not
invalidated as a whole, at most only as a
respect the particular words, erased, corrected
or interlined. (kalaw vs. Relova 132 SCRA 237) It
will result only to the disallowance of such
changes (Ajero vs. CA)
Significance of signature at Attestation Clause & pages
= It is the witnesses and not the testator who are
required under Art. 805 to state the number of pages
used upon which the Will is written (Azuela vs. CA
GR#122880 April 12, 2006)

= Even if the instrumental witnesses signed the left

margin of each page if they have not signed the
attestation clause, the Will is Void.