WILLS AND SUCCESSION 1 Main Reference: Jurado, D.; Other References: Tolentino, A.

and Navarro Notes GENERAL PROVISIONS ----------------------------------------------------------------------------------Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n) ----------------------------------------------------------------------------------Concept of Succession Two senses: 1. Broad substitution or subrogation of a person in the transmissible rights and obligations of another. So, covers both mortis causa and inter vivos. 2. Strict juridical - substitution or subrogation of a person in the transmissible rights and obligations of a deceased person. So, limited to mortis causa. (Art. 774) Basis of Succession Extreme individualists and socialists death extinguishes all rights; illogical to fix the birth of a right from the moment when the will which is supposed to create the right has ceased to exist For those who accept the idea, bases are the ff: 1. Right to private property - includes power to dispose by means of testament, since a testament is nothing more than an instrument of alienation conditioned upon his death 2. Right of the family family co-ownership; here, intestate succession is the normal kind, while testamentary is the abnormal or exceptional kind 3. Eclectic harmonious combination of private ownership and the family; the basis for succession is the recognized necessity of perpetuating mans patrimony beyond the limits of human existence. This necessity in turn is based on the necessity of giving greater stability to the family and to the social economy. Code Commission: Human happiness may be attained by tempering the concept of extreme individualism with State guidance Purification of private ownership of abuses1 ----------------------------------------------------------------------------------Article 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n) ----------------------------------------------------------------------------------Subjective Elements of Succession 1. Decedent (also called testator, if he left a will) 2. Those called upon to succeed a. Heirs person called to the whole or to an aliquot portion of the inheritance either by will or by operation of law b. Devisee a person to whom a gift of real property is given by will c. Legatee a person to whom a gift of personal property is given by will ----------------------------------------------------------------------------------Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659) ----------------------------------------------------------------------------------Objective Element of Succession Inheritance 1. Universality of all the property, rights and obligations constituting the patrimony of the decedent which are not extinguished by his death (Manresa) 2. The entirety of the patrimonial properties and the relations which constitute the objective elements of succession (Castan) 3. More accurate definition: Universality of all the property and transmissible rights and obligations constituting the patrimony of the decedent which are not extinguished by his death and which are available for distribution among those who are called to succeed after settlement or liquidation. Inheritance vs. Succession 1. Inheritance see Manresa definition 2. Succession legal mode by which such are transmitted Restricted Concept of Inheritance No succession shall be declared until a liquidation of the assets and debts left by the decedent shall have been made and all his creditors fully paid. Until then, the right to inherit remains inchoate, and partakes of the nature of a mere hope and nothing more. Liquidation is necessary to determine whether or not the decedent has left any liquid assets which may be transmitted to his heirs. Old code: Heirs are a continuation of the personality of the decedent and succeed to all the rights and obligations of the latter by the mere fact of his death. Now, it is the estate which is responsible for the payment of debts of the decedent, and if the estate should not be sufficient to pay such debts, the heirs cannot be made to pay for the unpaid balance.

closing of channels upon which wealth flowed in torrents from generation to generation of a particular family removing the bondage of undue conservation which denied them the right to share in the estate of their parents elimination of distant relatives who may succeed to property to the accumulation of which they contributed nothing staying of the dead hand to prevent it from meddling with the affairs of the living socialization of ownership effectively adapting property to the needs of society

WILLS AND SUCCESSION 2 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes ----------------------------------------------------------------------------------Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) ----------------------------------------------------------------------------------Causal element of succession (Efficient cause) 1. Expressed will manifested in last will and testament 2. Presumed will provided by law The fact of his death is the condition; and more than just being a condition, it is the very reason of succession itself, and the manifestation of the will of the decent. It is the final cause of the transmission of successional rights. Transmission of Successional rights Art 777 is complemented by Arts. 1042 and 533: Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989) Article 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same. (440) Some commentators: More accurate to say that the succession is opened (se abre) by the death Manresa: succession is a mode of acquisition; there is therefore a true transmission Nevertheless: The moment of death the decisive moment when the heirs acquire a definite right to the inheritance whether such right is pure, conditional or with a term. Before death, no heir may enter into a contract with respect to his future share, as such contract would have no object whatsoever. Rule in case of presumptive death General rule: The time when the absentee died must be proved in accordance with the ordinary rules of evidence. If this is not possible, he is deemed to have died at the time of the expiration of the period designated by law.2
2

Exception: When the absentee disappeared under one of the extraordinary cases enumerated in Art. 391. Because he disappeared under the danger of death, he is deemed to have died at or about the time he disappeared. Effect of judicial settlement The fact that the hereditary estate is placed under administration will not affect the application of Art. 777. This does not deprive heirs of the right to intervene in the administration of the estate for the protection of their interests, when the administrators acts are prejudicial to their interests. Formal declaration or recognition of the right of the heirs requires judicial confirmation in the proper testate or intestate proceedings. Nevertheless, such right has always been protected from encroachments made or attempted before judicial declaration. While it is true that the heirs acquire ownership over the inheritance from the moment of the decedents death, the judicial administrator, by virtue of his appointment, acquires a right to the possession of the estate subject to the orders of the court, unless he consents to the heirs continuing in the possession thereof. Thus, before liquidation and distribution is made, the heirs have no cause of action against the executor or administrator for the possession of the property (Rule 87, Sec. 3). This will not affect the principle that the rights to the succession are transmitted at the moment of death. Once the administration proceedings is terminated and the heirs accept their portions in the inheritance, possession thereof is deemed transmitted to them without any interruption from the moment of the death of the decedent. Elements for Transmission (Tolentino) 1. The express will of the testator, within the limits prescribed by the law, calling certain persons to succeed him, or in the absence of a will, the provision of the law prescribing the presumed will of the decedent 2. The death of the person whose succession is in question 3. The acceptance of the inheritance by the person called to the succession ----------------------------------------------------------------------------------Art. 778. Succession may be: (1) Testamentary (2) Legal or intestate; or (3) Mixed. (n)

Article 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. 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 seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

WILLS AND SUCCESSION 3 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n) Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) ----------------------------------------------------------------------------------Kinds of succession (based on the manner of effecting the succession) o Testamentary - is that which results from the designation of an heir, made in a will executed in the form prescribed by law. o the decedent's EXPRESS WILL shall govern. Note: The designation of an heir is not essential for the validity of a will. What is essential is that the succession must be effected through the testator's will executed in the form prescribed by law. o Intestate - that which is effected by operation of law in default of a will. o the decedent's PRESUMED WILL shall govern. ----------------------------------------------------------------------------------Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n) ----------------------------------------------------------------------------------Extent of inheritance (1) all of his PROPERTY which are existing at the time of his death; (2) all of his TRANSMISSIBLE RIGHTS AND OBLIGATIONS which are existing at the time of his death; (3) all of the PROPERTY AND RIGHTS which may have accrued to the hereditary estate since the opening of succession. Properties in existence at decedent's death o refer only to those properties which are AVAILABLE for distribution among the persons called to the inheritance after settlement or liquidation. Note: corpse does not form part of the inheritance; it is not a property. However, any organ of a person's body may be utilized for medical, surgical or scientific purposes after his death with authority from the grantor under R.A. No. 349, as amended by R.A. No. 1056. Requisites of the grant/authorization: (1) be in writing; (2) specify the grantee (person or institution); (3) specify the organ to be detached; (4) specify the use/s of the organ; (5) be signed by the grantor and two disinterested witnesses. Transmissible rights and obligations Rules/Guidelines in determining transmissibilty of a right or obligation (1) rights relative to persons and family or purely personal rights, are by their very nature, intransmissible in character.
(2) rights relative to property or patrimonial rights are

Default: if the decedent has not made any will, or when he has made one, but without the formalities prescribed by law. o Mixed - one effected partly by will and partly by operation of law. o if the testator makes a will which does not dispose all of his property.

Contractual Succession - it is the act of future spouses of giving or donating to each other in their marriage settlements their future property to take effect upon the death of the donor and to the extent laid down by the provisions of the Civil Code relating to testamentary succession. Note: Contractual succession is NOT allowed anymore, for it was not expressly provided in the Family Code. Modes of testamentary succession o will- a formally executed instrument by which a person makes disposition of his or her estate to take effect after death. o codicil- a formally executed document made after a will that adds to, subtracts from, or changes the will Both may be either: (i) notarial- attested, or acknowledged by a notary public; (ii) holographic- written out in the hand of the testator from beginning to end, with date and signature. Kinds of testate and intestate succession (a) voluntary or compulsory (b) by right or by representation

generally transmissible in character. Exception: those which are made intransmissible by operation of law such as personal and legal usufructs and personal easements.
(3) rights arising from obligations or rights of obligations,

whether contractual or otherwise, are generally transmissible in character. Exceptions: (a) those arising from contracts which by their very nature are intransmissible; (b) those expressly made intransmissible by agreement of the parties; (c) and those( expressly made intransmissible by operation of law.

WILLS AND SUCCESSION 4 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes Examples of intransmissible rights and obligations: (1) rights and obligations between husband and wife; (2) property relations between husband and wife; (3) action for legal separation; (4) action to compel acknowledgnent of a natural child; (5) criminal responsibilty; (6) parental authority; (7) rights of a guardian; (8) right to receive and the obligation to give support; (9) right to hold publi office (10) right to exercise a profession or vocation. Monetary Obligations - Monetary obligations CANNOT be included in the inheritance based on provisions of the Rules of Court and decided cases. -Under the New Rules of Court, only monetary obligations or claims for money must be filed within the time limited by the rules against the estate of the decedent; otherwise they are barred forever. it refers to those monetary obligations contracted by the decedent himself during his lifetime and not those contracted by his heirs. Under our system of procedure, monetary obligations of the decedent can be charged against his estate and not against his heirs. ----------------------------------------------------------------------------------Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. ----------------------------------------------------------------------------------General Rule: A testator's hereditary estate is divided into two (2) portions:
(1) legitime or legal portion- testator has no testamentary

control because the law has reserved it for certain heirs (compulsory heirs); cannot be disposed of by will in favor of any other person.
(2) disposable free portion- testator has the absolute

testamentary control; may be disposed of by will in favor of any person not disqualified by law to succeed. Heir a person called to the whole or an aliquot portion of the inheritance either by will, or by operation of law. succeeds by universal title

Obligations which may form part of the inheritance are those arising by operation of law from patrimonial rights which are adjudicated to the heirs after liquidation of the estate such as those arising from contracts the object of which is the delivery of a thing other than money. chargeable against the heirs but only to the extent of the value of the property which they may have received from the decedent.

Kinds of Heirs (Jurado and Tolentino) (1) Voluntary or Testamentary heir- an heir called to succeed to the whole or an aliquot part of the disposable free portion of the hereditary estate by virtue of the will of the testator. o Succeeds by reason of the will of the decedent (2) Compulsory heir- an heir called by law to succeed to a portion of the testator's estate known as legitime. o Succeeds regardless of the will of the decedent (3) Legal or intestate- an heir who succeeds to the estate of the decedent who dies without a valid will. o Succeeds in the absence of the will of the decedent Devisee a person to whom a gift of REAL PROPERTY is given, as against the disposable portion the testator's hereditary estate, by virtue of a will. Legatee a person to whom a gift of PERSONAL PROPERTY is given, as against the disposable portion of the testator's hereditary estate, by virtue of a will. Heirs, Devisees & Legatees, Distinguished Distinction Heirs Devisees & Legatees As to title Always called to succeed to an indeterminate or aliquot portion of the deceden't hereditary estate -succeed UNIVERSAL TITLE As to portion of Testate Always called to succeed to individual items of property

Accretions any property or right which may have accrued thereto since the opening of the succession. Two Views: (1) Critics of the NCC: any accretion shall belong in common to the heirs, not because it is included in the inheritance, but because of the principle of accession, since from the time of the death of the decedent, the heirs become the owners in common of the hereditary estate.
(2) Defenders of the NCC: since any accretion is subject

to the payment of the debts of the decedent, in the same way as any existing property or transmissible right,and what will be distributed to the heirs will be the net remainder or residue of the estate, it is but right to include in the inheritance all property and transmissible rights which may have accrued since the opening of the succession.

-succeed by PARTICULAR by TITLE

Devise or legacy

WILLS AND SUCCESSION 5 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes the estate succession (i) Voluntarycharged against the whole or aliquot part of the disposable free portion; (ii) Compulsorycharged against the legitime or legal portion is charged ONLY against the FREE PORTION of the testator's property. However, if the testator is not survived by compulsory heirs, his entire property is cobsidered as free property 1. Of practical importance only if testator is survived by compulsory heirs who are entitled to a legitime. Importance of Distinction In case of preterition or pretermission in the testator's will of one, some or all the compulsory heirs in the direct line, the effect is to annul entirely the institution of heirs, but legacies and devises shall be valid insofar as they are not innoficious. (Art. 854) In case of imperfect or defective disinheritance, the effect is to annul the institution of heirs to the extent that the legitime of the disinherited heir is prejudiced, but legacies and devises shall be valid insofar as they are not inofficious. (Art. 918) In case properties are acquired by the testator after the execution of the will, as a rule, such are not included among the properties disposed of unless it should expressly appear in the will itself that such was the testator's intention. (Art. 793) This rule is applicable only to legacies and devises, NOT to institution of heirs. CHAPTER II TESTAMENTARY SUCCESSION Section 1. Wills Subsection 1. - Wills in General ----------------------------------------------------------------------------------Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. ----------------------------------------------------------------------------------Other Definitions: 0 (Page) A disposition, made by a competent testator in the form prescribed by law, of property over which he has legal power of disposition, which disposition is of such nature as to take effect after his death. (iii) (Jarman) An instrument by which a person makes disposition of his property to take effect after his death, and which is, in its own nature, ambulatory and revocable during his life. (6) (Bigelow - elements of a will) It is: 1. a written instrument 2. duly executed and attested, by which 3. a competent person makes 4. a voluntary disposition 5. of property 6. in favor of another competent person 7. to take effect after the maker's death, 8. meantime being revocable. Characteristics of Wills 1. It is a strictly personal act; 2. It is an individual and unilateral act; 3. It is a free and voluntary act; 4. It is a formal and solemn act; 5. It is a disposition of property; 6. It is an act mortis causa; 7. It is ambulatory and revocable during the testator's lifetime.

As to the means Either by means Always called to of succession of a WILL succeed by (voluntary) or by means of a WILL OPERATION OF LAW (compulsory) Hypothetical Questions (from Navarro Notes) (1) Q: May a person be a compulsory and voluntary heir at the same time, in the same will (dual status)? A: Yes, if in a will a compulsory heir is given more than his legitime, he assumes a dual status: (a) In so far as his legitime considered, he is a compulsory heir. (b) In so far as the excess is concerned, he is a voluntary heir. (2) Q: Suppose the only properties left by by the decedent are his 3 cars. The decedent gave you 1/3 of his estate, which is, one car. As a beneficiary, are you considered an heir? A: Yes, because an aliquot part (1/3 thereof) of the estate was given to me, not a specific part thereof. The answer would have been different, if the decedent has given me a specific car, in which case I would become a legatee. (3) Q: X executed a will in 1985. He died in 1995. In his will, X gave Y, all of his cars. At the time of the execution of the will in 1985, X had only 2 cars. Assuming that in 1995, he already has 200 cars. How many cars will Y inherit? A: Y will inherit only 2 cars, because the remaining cars are after-acquired properties. Y is merely a legatee, he does not succeed to a portion of the estate. (4) Q: If in the will, X stated to give 1/2 of his estate to Y, what is the effect? A: Y now becomes an heir, because he is to succeed to a portion of the estate. Therefore in the preceding problem, if the only estate of X are the 200 cars, Y will get 100 cars (1/2 of the estate). (3) As a general rule, the devise of legacy is a charge against the free portion of the testator's property.

WILLS AND SUCCESSION 6 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes ----------------------------------------------------------------------------------Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. ----------------------------------------------------------------------------------Prohibited Delegation It is the making of the disposition, the expression of the will of the testator, that is not subject to delegation. The testator cannot substitute the mind or will of another for his own. (Tolentino) The mere act of drafting or writing of the will does not fall within the prohibition ----------------------------------------------------------------------------------Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. ----------------------------------------------------------------------------------The following testamentary acts cannot be left in whole or in part to the discretion of a third person: 0 Duration of the designation of heirs, devisees or legatees; 0 Efficacy of the designation; 0 Determination of the portions which they are to take when referred to by name. ----------------------------------------------------------------------------------Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. ----------------------------------------------------------------------------------Delegation of Non-Testamentary Acts The testator is allowed to entrust to a third person: 0 The power to distribute specific property or sums of money which he may have left in general to specified classes or causes; 0 The power to designate the persons, institutions or establishments to which such property or sums of money are to be given or applied. What the testator entrusts to the third person are merely the details of the will, in order to make the devise or legacy more effective. ----------------------------------------------------------------------------------Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. ----------------------------------------------------------------------------------The purpose of this article is to prevent the testator from substituting the will of a third person for his own. Construction of Wills ----------------------------------------------------------------------------------Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. ----------------------------------------------------------------------------------Disposition susceptible of different interpretations Under this rule, that construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law. ----------------------------------------------------------------------------------Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. ----------------------------------------------------------------------------------Mistakes and Omissions (M/O) 0 Supplementary to the Parole Evidence Rule (Sec. 9, Rule 130, RC) 0 Refers to a will where there are mistakes or omissions with regard to persons or property or where there are uncertainties with regard to the application of its provisions. 0 Two distinct cases: 0 Imperfect description/No person or property exactly answers the description - The M/O must be corrected by ascertaining the testatorial intention using for this purpose intrinsic or extrinsic evidence or both, but NOT oral declarations of the testator as to his intention. 1 Uncertainty arising upon the face of the will as to the application of any of its provisions the testatorial intention is to be ascertained from the context of the will and the circumstances under which it was made, but NOT oral declarations of the testator as to his intention. Two kinds of ambiguity in a will (Tolentino): 1. Patent or extrinsic appears upon the face of the instrument Ex. To some of the six children of my brother Dodong 2. Latent or intrinsic cannot be seen from a mere perusal or reading of the will, but which appears only upon consideration of extrinsic circumstances Ex. When the testator gives a legacy to my cousin Teteng and it turns out that he has two or more cousins named Teteng o May arise either: 1. When the will names a person as the beneficiary of a gift, and there are two or more persons/properties that answer to such name/description 2. Where there is a misdescription of the beneficiary or of the thing given as a gift ----------------------------------------------------------------------------------Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

WILLS AND SUCCESSION 7 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. ----------------------------------------------------------------------------------Intent of Testator Paramount (Tolentino) The supreme law in succession is the intent of the testator. It is only when the intent is contrary to law, morals, or public policy that it cannot be given effect. Literal Meaning of Language (Tolentino) The words and provisions must be plainly construed to avoid a violation of his intentions and real purpose. ----------------------------------------------------------------------------------Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. ----------------------------------------------------------------------------------Effectivity of all parts (Tolentino) It is to be presumed that every word or clause was intended by the testator to have some meaning; and no word or clause should be rejected if it is at all possible to give it a reasonable effect. Prevention of Intestacy (Tolentino) Courts will give the broadest meaning to the words of a bequest, when it is necessary to do so in order to prevent intestacy. ----------------------------------------------------------------------------------Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. ----------------------------------------------------------------------------------After-acquired Property 0 As a rule, not included among the properties disposed of, unless it should expressly appear in the will itself that such was the intention of the testator. 0 This rule can only be applied to devises and legacies, NOT to institution of heirs. ----------------------------------------------------------------------------------Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. ----------------------------------------------------------------------------------Intention of Testator (Tolentino) When the testator does not state the extent of the interest he gives, it is understood that his WHOLE interest passes. But the testator, under this article, and under Art.929, may expressly convey a larger interest. In such case, the intention of the testator will be followed. ----------------------------------------------------------------------------------Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. ----------------------------------------------------------------------------------Law Governing Form of Wills Basis: The formal validity of a will is to be judged at the time the instrument was executed. Effect of changes after testators death Upon the death of the testator, successional rights arising from the will are vested in the persons called to the inheritance either as heirs or as devisees or legatees, i.e., the title of the heirs becomes a vested right. A will perfectly valid at the time of its execution cannot be invalidated by a law enacted after the death of the testator, neither can a will totally void at the time of its execution be validated by such subsequent legislation. Effect of changes before testators death General rule: Any statutory change enacted after the execution of the will but before the death of the testator cannot have any retroactive effect upon the formal validity of a will. Exception: When a retroactive effect is expressly declared by the statute itself or is necessarily implied. This is not violative of due process because no rights are as yet vested in the persons called to the inheritance. SUBSECTION 2. - Testamentary Capacity and Intent Nature of Testamentary Capacity Refers to the ability as well as the power to make a will. Majority view: It is purely a creature of statute, and is subject to legislative regulation and control. ----------------------------------------------------------------------------------Art. 796. All persons who are not expressly prohibited by law may make a will. ----------------------------------------------------------------------------------Persons with Testamentary Capacity Only those who are expressly prohibited from making a will are those who do not possess the necessary age and mental requirements. Requisites for Making a Will 1. He must be at least 18 years of age; and 2. He must be of sound mind Testamentary capacity must exist at the time of the execution of the will. -----------------------------------------------------------------------------------

WILLS AND SUCCESSION 8 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes Art. 797. Persons of either sex under eighteen years of age cannot make a will. ----------------------------------------------------------------------------------Age Requirement 18 years old Failure to conform shall invalidate the will When does a person reach the age of 18? Conflicting views: 1. Anglo-American Law and Tolentino at the commencement of the day preceding his birthday, in accord with the liberal policy of the law to presume capacity to make a will. 2. Spanish authors and Jurado In view of Art. 133 of the NCC, a person is said to have reached the age of eighteen only at the commencement of the day of his birthday. -----------------------------------------------------------------------------Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) -----------------------------------------------------------------------------Mental Requirement He must be of sound mind at the time of the execution of the will. Absolute soundness of mind and memory is not essential. ----------------------------------------------------------------------------Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) ---------------------------------------------------------------------------Soundness of mind It is the ability of the testator mentally to understand in a general way the nature and extent of his property, his relation to those who naturally have a claim to benefit from the property left by him, and a general understanding of practical effect of the will as executed. Test of soundness of mind The testator must be able to understand the business in which he is engaged, and to appreciate the effect of the disposition made by him of his property. he must know the nature of the estate to be disposed of, the proper object of his bounty, And understands the character of the testamentary act Questions asked In Probate Proceedings Whenever the testamentary capacity of the testator is put in issue during the probate proceedings, these 3 questions are always asked to in order to determine whether or not the
3

testator was of sound mind at the time of the execution of the will: whether he knew, at least in a general way, the nature of the estate to be disposed of; whether he knew, at least in a general way, the proper object of his bounty; and Whether he understood or comprehended the character of the testamentary act. ----------------------------------------------------------------------------Art. 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) ------------------------------------------------------------------------------ It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document. Chief Justice Arellano: The code might have adopted either one of 2 systems: 1. That of establishing as a general rule the presumption of soundness of the mental faculties until the contrary be proven a will made should be declared valid in all cases, in the absence of evidence to the contrary 2. That of presuming mental weakness in the absence of proof that the act was performed whiles the mental weakness in the absence of proof that the act was performed while the mental faculties were in their normal condition. it would have to be considered as void upon the presumption that it was executed by a person demented unless the contrary is shown The code has adopted the first system as being the most rational, by accepting the principle that mental soundness is always to be presumed with respect to the person who has not been previously incapacitated until the contrary is proven by the proper persons. The intervention of the notary and the witnesses constitutes a true guaranty of the capacity of the testator, by reason of their knowledge of the matter. Inversion of Presumption 2nd part of 2nd paragraph the burden of proof is shifted to the proponents of the will they must prove that the testator made the will during a lucid interval Lucid Interval That period in which an insane person is so far free from his disease that the ordinary legal consequences of insanity do not apply to acts done therein. refers to that period in which an insane person has so far recovered from his insanity so that he is in a position to be able at the time of the making his will to know the nature

Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included.

WILLS AND SUCCESSION 9 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes of the state to be disposed of, the proper objects of his bounty, and the character of the testamentary act. In American Law Insanity of a confirmed or permanent nature, shown to have afflicted the testator at one time, is presumed to have continued to the subsequent time of the execution of a will. The burden is shifted to the proponent of the will to produce evidence that the incapacity did not exist when the will was executed, or to show that it was executed during a lucid interval. In our Law If it cannot be established that the testator was publicly known to be insane within the required period, the presumption of mental capacity stands. 2nd Presumption of mental incapacity When the testator makes a will at a time when he is still under guardianship Sufficiency of evidence of mental incapacity burden is cast upon the contestants of the will to prove incapacity of the testator / upon the proponents to prove mental capacity Evidence must cover a wide range in order that all facts may be brought out. Testimonies of the following are entitled to great weight where they are truthful and intelligent The testimony of the subscribing witnesses Those present at the execution of the will attending physician concerning the testators mental condition In case of conflicting testimonies: Where the testimony of the attending physician is based on mere professional speculation, such testimony cannot prevail over the positive statements of credible witnesses whose testimony does not in itself seem unreasonable. However if the testimony of the physician is not in the nature of mere professional speculation, as when it is established that he attended the testator during his last illness and saw him on the day when the will was supposed to have been executed, then such testimony shall be given more credence. Effect of Old Age: The law prescribes no limit in point of age beyond which a person cannot dispose of his property by will The will of an aged person should be regarded with great tenderness, where it appears not to have been procured by fraudulent means, but contains those very dispositions which the circumstances of his situation and natural affections dictated the usual tests of testamentary capacity must still have to be applied Senile dementia: peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood It produces mental incapacity if there is a failure of mind as to deprive him of intelligent action. Effect of infirmity of disease not inconsistent with mental incapacity evidence of such fact is admissible in the issue of testamentary capacity the usual tests of testamentary capacity must still have to be applied Effect of Insanity In its broadest sense, Insanity refers to any disorder of the mind resulting from disease or defect in the brain, whereby mental freedom may be perverted, weakened or destroyed. Sometimes confused with idiocy, imbecility or senile dementia. o Idiocy, imbecility, and senile dementia are permanent forms of mental diseases, thus people who are suffering from them do not possess testamentary capacity Idiocy - is used to describe those who are congenitally deficient in intellect Imbecility - is used to describe those who are mentally deficient as a result of disease Senile dementia - those who are incapable of any intelligent action die to old age. Weakness of Intellect Weakness of intellect may render the testator incapable of making a valid will if such weakness disqualifies him from knowing from knowing or appreciating the nature, extent or consequences if the act he is engaged in. Effect of Mental Delusion An insane delusion which will render one incapable of making a will is defined as a belief in things which do not exist, and which no rational mind would believe to exist. to justify the setting aside of a will, it must be shown that the will was the product of the delusion, or at least that it was influenced by the delusion. Effect of belief in supernatural A belief in spiritualism is not in itself sufficient evidence of testamentary incapacity However, a will of a person who becomes a monomaniac upon the subject of spiritualism by dwelling upon it too persistently and profoundly, may be invalidated upon the ground of an insane delusion. Effect of drunkenness Does not invalidate his will provided that he then comprehends the nature, extent, and disposition of his estate and his relation to those who have or might have a claim on his bounty A person addicted to the use of drugs or liquor, if lucid and sober when a will is made, does not lack testamentary capacity merely by reason of the habit. ----------------------------------------------------------------------------Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

WILLS AND SUCCESSION 10 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 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) ----------------------------------------------------------------------------Capacity of the spouse the right to dispose the property of a spouse is subject to the result of the settlement or liquidation of the partnership or of the community of property. only the ideal share of the spouse making the will and not any specific or determinate property belonging to the partnership or community may be disposed of. SUBSECTION 3. - Forms of Wills Classification of wills Ordinary (notarial) Holographic Ordinary A will executed in accordance with the formalities prescribed by Articles 804 to 808 of the civil code. Holographic It is a written will which must be entirely written, dated, and signed by the hand of the testator himself, without the necessity of any witness. Object of Formalities The objective of the solemnities of a will is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. o Laws on this subject should be interpreted in such a way as to attain these primordial ends. -----------------------------------------------------------------------------Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) -----------------------------------------------------------------------------Common Formalities Every will whether ordinary or holographic must comply with these formalities: 1. The will must be in writing 2. It must be written in a language or dialect known to testator Written form of wills every will must be in writing if the will is holographic, it is essential that it must be entirely written in the handwriting of the testator himself if the will is ordinary, so long as it is in writing it does not matter on what material, whether on paper or parchment, it is written. it may be written by hand or typewritten, or printed from plates or type. validity is not affected by the fact that it is written partly in pen and party in paper, or that it was written wholly in lead pencil the law does not specify that the testator himself must perform the act of writing. However, in case of a holographic will, the will must be entirely written in the handwriting of the testator himself (Art 810). Language of wills must be executed in the dialect or language known to the testator There is no statutory requirement that the testators knowledge or understanding of the language or dialect in which the will is executed should be expressed in the body of the will. thus it is a matter that may be established by proof aliunde where a will is drawn in a dialect of a certain locality and is established that the testator was living in or was a resident of that locality, there arises a presumption that the will is drawn up in a language or dialect know to the testator ----------------------------------------------------------------------------------Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) ----------------------------------------------------------------------------------Special Formalities of Ordinary Wills 1. Must be in writing; 2. Must be written in language or dialect known to the testator; 3. Must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction; 4. Must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;

WILLS AND SUCCESSION 11 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes 5. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin; 6. All the pages of the will shall be numbered correlatively in letters placed on the upper part of each page; 7. Must contain an attestation clause; 8. Must be acknowledged before a notary public by the testator and the witnesses Subscription - Manual act of the testator and instrumental witnesses of affixing their signatures to the instrument. - Purpose for the testator: to identify the testator and to authenticate the documents. Manner of Signing A sufficient signature to a will depends largely on the custom of the time and place, habit of the individual and the circumstances of each particular case but it should be manifest that whatever is used is actually intended as a signature. Imperfect or illegible signature does not invalidate his will, it will be sufficient if he intended it as his signature. Signature by mark. Any mark or combination of marks placed on a will by the testator as his signature is a sufficient compliance with the law. Where a testator signs with his thumb mark or affixes a cross against his name, intending such to be his signature, there is sufficient compliance. However, if the signature is only a mere cross without any proof that it is the usual signature of the testator or at least one of the ways by which he signed his name, it is not a sufficient signature because it does not have the trustworthiness of a thumb mark. Signature by another. When the testators name is written by some other person in his presence, and by his express direction, it should be stated in the attestation clause. The testators name must have been written by the third person. The testators name must have been written in the testators presence and that the third person must have affixed the testators name at the testators direction. Mere knowledge or acquiescence or mere implied assent of the testator in such act does not meet the requirement of an express direction. The law does not require any specific form in which the name of the testator should be affixed at the end of the will when written at his request by another person. The only requirement is that the will shall bear the name of the testator. Place of Signature The law fixes the location of the signature at the foot or end of the will. Purpose: not only to show that the testamentary purpose expressed therein is completed and to prevent any opportunity for fraud or interpolations between the written matter and the signature. The position of the signature is an internal evidence of finality or completion of intent. A will is a NULLITY where it is not signed at the end as required by law. Presence of witnesses. It is also required that the subscription of an ordinary will by the testator should take place in the presence of the instrumental witnesses. This is a mandatory in character as prescribed by the article which provides that the attestation clause state the fact that the testator signed the will xxx or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses. Attestation and subscription by witnesses. An ordinary will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It must be stated in the attestation clause. Instrumental witnesses one who takes part in the execution of an instrument or writing. Attestation- act of the witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law. Purpose of attestation: to render available proof during the probate proceedings that the will has been executed in accordance with the requirements prescribed by law and that the instrument offered for probate is authentic.

Subscription the manual act of the instrumental witnesses in affixing their signatures to the instrument. Purpose: identification

Attestation Subscription Act of the senses Act of the hand Mental act Mechanical act Purpose is to render available Purpose is for identification. proof during the probate of the will, not only of the authenticity of the will, but also of its due execution. Order of signing. Will the fact that the testator signed the will after one, two, or all of the witnesses have already signed impair its validity? In the US, there are two conflicting opinions:

WILLS AND SUCCESSION 12 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes 1. Until the testator signs, there is nothing to attest since the signature of the testator is the principal, if not the only matter to which the attestation contemplated by law applies; 2. The execution of the will by the testator and the signing of the same by the subscribing witnesses constitute one continuous transaction, the signing by each, taking place in the presence of the others, is sufficient and is to all intents and purposes an attestation by the subscribing witnesses to a fact which has already taken place. (Majority opinion and in conformity with the liberality of the Philippine Civil Code). Meaning of presence. The will must be attested and subscribed by the instrumental witnesses in the presence of the testator and of one another. Purpose: to prevent the substitution of a surreptitious will. It is essential that one of the three instrumental witnesses must actually sign not only in the presence of the testator but also in the presence of the other witnesses. It is not sufficient if the witnesses merely acknowledged their previously affixed signatures in the presence of the testator or in the presence of each other. The phrase in the presence of the testator and of one another has a technical meaning. The words of the statute imply contiguity with an uninterrupted view between the testator and the witnesses, so that, if he desires, he can see the act of attestation, whether in the same room or not, and an attestation in the same room with the testator is generally held to be sufficient subscription in his presence, unless there is some obstruction or physical obstacle which intervenes and prevents him from knowing of his own knowledge or perceiving by his senses the act of attestation. Test of presence. The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. Marginal signatures. 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. This requirement is mandatory in character. The law also provides that the attestation clause shall state the fact. It is essential that all of the pages of the will, except the last, should be signed not only by the testator but also by all of the instrumental witnesses. Location of signatures o Signatures of the testator and the instrumental witnesses should be on the LEFT MARGIN OF EVERY PAGE EXCEPT THE LAST- not mandatory as long as there is signature in every page except last

Numbering of pages o All of the pages of the will shall be numbered correlatively in letters placed on the upper part of the page (REASON: to forestall any attempt to suppress or substitute any of the pages of the will)- mandatory Not needed if there is one page only Not necessary whether the numbers are in numerical or word form Substantial compliance is sufficient (e.g. use of alphabet letters, Arabic numerals or any form of identification)

o o o

Attestation clause- (def) memorandum or record of facts wherein the witnesses certify that the instrument had executed before them and that it has been executed in accordance with the formalities prescribed by law PURPOSES OF THE CLAUSE 1. to preserve in permanent form a record of the facts attending the execution of a will so that in case of failure of the memory of the instrumental witnesses or in case such witnesses are no longer available, such facts may still be proved 2. to render available proof that there has been a compliance with the statutory requisites for the execution of the will (Paras, 2008 ed., p. 96) 3. to minimize the commission of fraud or undue influence (Paras, 2008 ed., p. 96) o For continuity, must be located right after the signature of the testator at the end of the will; not mandatory as long there is presence of this clause and that the anomaly is not serious and substantial as to affect the wills validity

Contents 1. No. of pages used upon which the will is written 2. 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 3. The fact that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another

WILLS AND SUCCESSION 13 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes o Must express the material matters mentioned in Art. 805 with substantial accuracy otherwise WILL IS NULL Must be signed by the witnesses (not by the testator) In the case of Milam vs Stanley, it was held that In determining whether the paper is testamentary or not, the court will look not only at the language of the instrument, but at the situation of the maker and at his intention. A will may be in any form. The words in which the intention of the testator is expressed is immaterial, if it sufficiently appears from the instrument that he was making a disposition of his property testamentary in character. Probate of Holographic Wills - Art. 811 provides that: If the probate of a holographic will is not contested, it shall be necessary that at least one witness who knows the handwriting and signature of the testator shall explicitly declare that the will and the signature of the testator are in the handwriting of the testator. If the probate is contested, at least three of such witnesses shall be knowledgearequired. In the absence of any competent witness, expert testimony may be resorted to, if the court deems it necessary. If the testator himself, while he is still living, will present his holographic will for probate, shall the above requirements still have to be complied with? According to Sec. 12, Rule 76 of the Rules of Court: Where the testator himself petitions for the probate of his holographic will and no contest is filed, the fact that he affirms that the holographic will and the signature are his own handwriting, shall be sufficient evidence thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof, shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. ------------------------------------------------------------------------------Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Art. 816. The will of an alien who is abroad produces 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 conformity with those which this Code prescribes. Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a -

Language of the attestation- if the language used is not known to the witnesses, it shall be interpreted to them (different from Art. 804) -------------------------------------------------------------------------Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. -------------------------------------------------------------------------Acknowledgement (def)- 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. It involves an extra-step undertaken whereby the signor actually declares to the notary that the executor of the document has attested to the notary that the same is his own free act and deed (Paras, 2008 ed., p. 101) Notarial acknowledgment is MANDATORY REQUIREMENT (Reason: to prevent or minimize fraud) Applicable only to ORDINARY or NOTARIAL WILLS (not to HOLOGRAPHIC WILLS since such does not need a witness) If there are three witnesses and the third witness is the notary publicthe will is NULL for it failed to meet the requirements in Art. 804. In the case, he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will (Cruz vs. Villasor) Notary public is not required nor allowed to read the will unless testator permits. Only instance where notary public is required to read the will is provided in Art. 808 (blind testator). (Paras, 2008 ed, p. 102) Testator and instrumental witness do not have to make the acknowledgement in the presence of one another. Such is only required in attestation and not in acknowledgement. (Paras, 2008 ed, p. 102) Notarial will is NOT a public instrument since notary is not required to retain a copy of the will or file another with the office of the clerk of court. (Paras, 2008 ed, p. 102)

WILLS AND SUCCESSION 14 Main Reference: Jurado, D.; Other References: Tolentino, A. and Navarro Notes citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit for the benefit of a third person. Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. ------------------------------------------------------------------------------Law Which Governs Formal Validity of Wills - General rule: The formal validity of a will shall be governed by the law of the country in which it is executed. Where testator is a Filipino - If the testator is a Filipino citizen and he executes a will in the Philippines, the law which governs the formal validity of the will shall be the law of the Philippines. - If he executes a will outside of the Philippines, the law which governs shall be the law of the country in which it is executed. May a will executed in a foreign country in accordance with the formalities prescribed by the law of the Philippines, by a Filipino citizen, who is either a resident or a transient in that country, be probated in the Philippines? The question seems to require a negative answer. However, it is submitted that a Filipino, who is either a resident or a transient in a foreign country, may execute a will in that country in accordance with any of the forms established by the law of the Philippines, because it would be absurd to allow a will which is executed in accordance with any of the forms established by the law of the country in which he may be and, at the same time, disallow one which is executed in accordance with any of the forms established by the law of his own countrya law which he presumed to be familiar. Also, under Art. 816, the will of an alien which is executed abroad in conformity with the formalities which the Civil Code prescribes may be probated in the Philippines. Not to grant the same privilege to a Filipino citizen would be not only illogical, but unjust. Where testator is an alien - If he executes a will in the Philippines, the laws which govern the formal validity of the will shall be either: (1) the law of the Philippines in accordance with the general rule established in Art. 17, or (2) the law of the country of which he is a citizen or subject in accordance with the special rule established in Art. 817. If he executes a will outside of the Philippines, the laws which shall govern shall either be: (1) the law of the place where the will is executed in accordance with the general rule established in Art. 17, or (2) the law of the place in which he resides in accordance with the special rule established in Art. 816, or (3) the law of his country in accordance with the special rule established in Art. 816, or (4) the law of the Philippines again in accordance with the special rule established in Art. 816.

Joint Wills Joint will - a single testamentary instrument which contains the wills of two persons, jointly executed by them, either for their reciprocal benefit or for the benefit of a third person Mutual will executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other Reciprocal will wills in which the testators name each other as beneficiaries under similar testamentary plans

A joint will may be either mutual or reciprocal. Mutual or reciprocal wills may be joint if they are contained in a single testamentary instrument. In practice, husband and wife ordinarily make mutual or reciprocal wills contained in separate instruments. Such is not prohibited by the provisions of Art. 818. What is prohibited is the execution of a joint will or a will contained in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Art. 819 is applicable only to joint wills executed by Filipinos in a foreign country; it does not apply to joint wills executed by aliens. Law Which Governs Intrinsic Validity of Wills - The intrinsic validity of wills is governed by the national law of the person whose succession is under consideration.