Problem — D was indebted to C for P500.

When he died, he had no property, but he was survived by X, his son, who
was making good in a certain business. As D had no property, C brought an action against X for the payment of the
P500 plus legal interest thereon on the ground that not only the property but also the rights and obligations of a
person are transmitted to his heirs upon his death either by will or by operation of law. Is C entitled to the remedy
sought for?
Answer — C is not entitled to the remedy. While it is true that the inheritance of a person includes not only his
property but also his rights and obligations which are existing at the time of his death, yet his monetary obligations
are excluded by operation of law. This is so because under our system of procedure for the settlement of the estate
of deceased persons, such monetary obligations of the decedent can only be charged against his estate and not
against his heirs.
Problem – What is meant by a will?
Answer – 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 his estate, to take effect after his death. (Art. 783, NCC.)
Problem – Clara, thinking of her mortality drafted a will and asked Roberta, Hannah, Luisa and Benjamin to be
witnesses. During the day of the signing of her will, Clara fell down the stairs and broke both her arms. Coming from
the hospital, Clara insisted on signing her will by thumbmark and said that she can sign her full name later. While the
will was being signed, Roberta experienced a stomach ache and kept going to the restroom for long periods of time.
Hannah, while waiting for her turn to sign the will, was reading the 7th Harry Potter Book on the couch, beside the
table on which everyone was signing. Benjamin, aside from witnessing the will also offered to notarize it. A week
later, Clara was run over by a drunk driver while crossing the street in Greenbelt. May the will of Clara be admitted to
probate? Give your reasons briefl y (2007).
Answer — Yes, the will of Clara may be probated. A thumbmark has been considered by the SC as a valid signature
if intended by the testator to be his signature (Garcia vs. La Cuesta, G.R. No. L-4067, Nov. 29, 1951; De Gala vs.
Gonzales, G.R. No. L-37756, Nov. 28, 1933).
The three witness rule required for the validity of an ordinary will is satisfied, provided, either of the two following
conditions exists: 1. Roberta could see Clara and the other witnesses sign the will at any time while she was in the
toilet, had she wanted to. 2. If Roberta could not have seen Clara and the other witnesses sign the will, the same is
valid if the will was acknowledged before a Notary Public other than Benjamin. It is not necessary that the testator or
the witnesses should actually see the others subscribe their names to the instrument, provided that he is in a position
to see them sign if he chooses (Nera vs. Rimando, G.R. No. 5971, Feb. 27, 1911;Yap Tua vs. Yap Ka Kuan, G.R. No.
L-6845, Sept. 1, 1914). Thus, the signing must be considered to be in the presence of Hannah who was reading a
book on the couch beside the table (Suggested Answers to the 2007 Bar Examination Questions, PALS)
Problem – What is the effect of the failure to state the number of pages on which the will was written?
Answer – The failure of the attestation clause to state the number of pages on which the will was written is a fatal fl
aw, despite Art. 809. The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages. The failure to state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which
they had ostensibly just witnessed and subscribed to. There is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of. However, in the case of Felix Azuela vs. CA, et al., G.R.
No. 122880, April 12, 2006 , there could have been no substantial compliance with the requirements under Art. 805
since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which
comprise the will.
Problem – What is the effect of an unsigned attestation clause?
Answer — An unsigned attestation clause results in an unattested will. The attestation clause is a “memorandum of
the facts attending the execution of the will” required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses
since the omission of their signatures at the bottom thereof negates their participation. The signatures on the left-
hand corner of every page signify that the witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. An unsigned attestation clause results in an unattested will (Felix
Azuela vs. CA, et al., supra).
Problem – What is the effect of a notarial will that has been subscribed and sworn to before a notary public but has
not been acknowledged before the notary public by the testator and the witnesses?
Answer — A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before the notary public. A jurat is that part of an affi davit where the
notary public certifies that before him, the document was subscribed and sworn to by the executor. On the other
hand, an acknowledgment 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. It involves an extra step undertaken whereby the signor actually declares
to the notary that the executor of a document has attested to the notary that the same is his own free act and deed.
(Ibid).
Problem — X, a Spanish citizen but a resident in San Francisco, California, U.S.A., executed a will in Tokyo, Japan.
May such will be probated in the Philippines and his estate in this country distributed in conformity with the provisions
of the will? Explain your answer. (1973 Bar Problem)
Answer — Yes, the will of X may be probated in the Philippines and his estate in this country may be distributed in
conformity with the provisions of the will, provided that said will was executed in accordance with the formalities
prescribed by any of the following laws: (1) The law of the place where X resides (San Francisco, California); or (2)
The law of his own country (Spain); or (3) The Civil Code of the Philippines; or (4) The law of the place where the will
was made (Tokyo, Japan). (Arts. 17, par. 1, 816, Civil Code). The first three are stated in Art. 816, while the last is
stated in the first paragraph of Art. 17 of the Civil Code.
Problem — A and B, a married couple of French citizenship but residents of the Philippines, went to Argentina and
there executed a joint will, mutually instituting each other as sole heir, which will is valid according to the law of the
state. Subsequently, they returned to the Philippines where A died. May the joint and mutual will executed in
Argentina be probated as valid in the Philippines? Reasons. (1971 Bar Problem)
Answer — The joint and mutual will executed in Argentina by A and B may be probated as valid in the Philippines.
True, Art. 818 of the Civil Code of the Philippines prohibits two or more persons from making a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit of a third person, and Art. 819 of the same Code
extends this prohibition to joint wills executed by Filipinos in a foreign country, even though authorized by the laws of
the country where they may have been executed. But then, from the phraseology of Art. 819 itself, there is a clear
implication that the prohibition does not apply to foreigners, and certainly, A and B are foreigners. Therefore, the
provision of the third paragraph of Art. 17 of the Civil Code which declares that prohibitive laws concerning persons,
their acts or property, and those which have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign
country, cannot be applied in the instant case. What is applicable is the first paragraph of the same article, which
declares that forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of
the country in which they are executed.
Problem — Would a person who is qualified to make a will necessarily be qualified to be a witness to the will of
another? Explain. (1968 Bar Question)
Answer — A person who is qualified to make a will is not necessarily qualified to be a witness to the will of another. In
order that a person can make a will, two requisites are necessary. They are: fi rst, that the testator is at least 18 years
old; and second, that he is of a sound mind. (Arts. 797, 798, Civil Code). In order that a person can act as a witness
to the will of another, four requisites are necessary. They are: fi rst, that he is at least 18 years of age; second, that he
is of a sound mind; third, that he is not blind, deaf, or dumb; and fourth, that he is able to read and write (Art. 820,
Civil Code). In addition, the law also declares the following are disqualified from being witnesses to a will: fi rst, any
person not domiciled in the Philippines; and second, those who have been convicted of falsifi cation of a document,
perjury or false testimony (Art. 821, Civil Code). It is clear, therefore, that even if a person can make a will because
he can comply with the age and mental requirements imposed by law, he cannot be a witness to the will of another in
four specifi c cases. They are: (1) where he is not domiciled in the Philippines; (2) where he had been convicted of
falsifi cation of a document, perjury or false testimony; (3) where he is blind, deaf, or dumb, and (4) where he is not
able to read and/or write.
Problem — “A” instituted “B” (his son) and his brothers “C” and “D” as his heirs to an estate of P600,000. Distribute
the estate. Reasons. (1972 Bar Problem)
Answer — Art. 846 of the Civil Code, which declares that heirs instituted without designation of shares shall inherit in
equal parts, is applicable. It must be noted, however, that one of the instituted heirs (“B”) is a compulsory heir while
the other two (“C” and “D”) are voluntary heirs. All commentators in this country agree that the rule enunciated in Art.
846 is applicable only to the disposable free portion and not to the legitime of compulsory heirs. Therefore, the estate
of P600,000 of “A” shall be divided as follows: “B,” being the son of the testator, shall be given his legitime of 1/2 of
the estate, or P300,000. That leaves a disposable free portion of 1/2 of the estate, or P300,000. It is this portion
which will be divided in equal parts among the three instituted heirs pursuant to Art. 846 of the Civil Code. Thus, the
division will be as follows:
“B” ........................... P 300,000, as compulsory heir 100,000, as voluntary heir
“C” ........................... 100,000, as voluntary heir
“D” .......................... 100,000, as voluntary heir
P 600,000
Problem — A died in 1980. He left a will which contains the following institution of heirs: “I designate as my heirs my
son B, my daughter C, the children of my deceased son D, and my friend X.” D, who died in 1969, is survived by his
three legitimate children E, F and G. The net residue of A’s estate is P180,000. How shall the distribution be made?
Answer — The provisions of Arts. 846 and 847 of the New Civil Code are applicable to the instant case. Manresa,
commenting on Art. 846, maintains that where there are compulsory heirs among the heirs instituted, the rule that the
heirs shall inherit in equal parts should be applied only to the disposable free portion (6 Manresa, 7th Ed., pp. 116-
117). Correlating this with the provision of Art. 847, the distribution of the estate shall be as follows: First satisfy the
legitime of B, C, E, F, and G. B and C shall be entitled to P30,000 each, in their own right, while E, F and G shall be
entitled to P10,000 each, by right of representation (Arts. 888, 902, Civil Code). The disposable free portion of
P90,000 will then be divided equally among the instituted heirs B, C, E, F, G, and X. Therefore, the shares of each
will be:
B – P30,000, as compulsory heir 15,000, as voluntary heir
C – P30,000, as compulsory heir 15,000, as voluntary heir
E – P10,000, by right of representation 15,000, as voluntary heir
F – P10,000, by right of representation 15,000, as voluntary heir
G – P10,000, by right of representation 15,000, as voluntary heir
X – P15,000, as voluntary heir
180,000
Problem — Jandon is twice a widower. He has three children by his fi rst marriage, and two children by his second
marriage. In his will, Jandon institutes as his exclusive heirs the children of his second marriage. What is the effect on
the will of the preterition of Jandon’s children by the fi rst marriage? Upon Jandon’s death, how will the hereditary
estate be divided? (1974 Bar Problem)
Answer — The preterition of Jandon’s children by the fi rst marriage in his will shall annul entirely the institution of
heirs as ordained by Art. 854 of the Civil Code. All of the three requisites of preterition or pretermission are present.
The omitted heirs are compulsory heirs in the direct line; the omission is total and complete; and the omitted heirs
have survived the testator. Assuming then that there are no legacies and devises in Jandon’s will and that the only
testamentary disposition thereof is the institution of the children of the second marriage, since such institution is void,
the will itself, as far as the distribution of the hereditary estate is concerned, becomes useless. Total intestacy results.
(Nuguid v. Nuguid, 17 SCRA 449). The estate, therefore, shall be divided among the three children of the fi rst
marriage and the two children of the second marriage in accordance with the rules of intestate succession. Each of
the fi ve shall be entitled to one-fi fth (1/5) of the entire (Art. 980, Civil Code).
Problem No. 1 — A, a very wealthy man, executed a will wherein he instituted as his only heirs his three brothers, B,
C and D without designating their shares. Before A died, both C and D were killed in a vehicular accident. C is
survived by a son, E, while D is survived by two daughters, F and G. A died two days later without changing his will,
survived only by B and the children of C and D. The net value of his estate is P6,000,000. How shall such estate be
divided?
Answer — B alone is entitled to the entire estate. It must be noted that both C and D are voluntary heirs; they are not
compulsory heirs. Consequently, they cannot transmit any right to their own heirs (Art. 856, Civil Code). In other
words, their children cannot inherit from the testator by right of representation. It would have been different had A
died intestate. In such a case, the children of C and D would then represent them in the succession (Arts. 972, 975,
Civil Code). As it is, since A died testate and since both of the requisites prescribed by law for accretion to take place
in testamentary succession are present, the shares of C and D, which were rendered vacant by reason of
predecense, shall now pass to their co-heir B by right of accretion. (Arts. 1015, et seq., Civil Code).
Problem No. 2 — In his will, widower Kano instituted his only child Luis and a friend Mario as his heirs. Mario died
ahead of Kano. If Kano dies without changing his will, would the children of Mario step into the shoes of their father
and inherit from Kano? (1974 Bar Problem)
Answer — The children of Mario cannot step into the shoes of their father and inherit from Kano; in other words, they
cannot inherit from Kano by right of representation. The following reasons are decisive: (a) In testamentary
succession, only a compulsory heir may be represented. Mario is not a compulsory heir; he is merely a voluntary heir
whose share is chargeable against the free portion. Under the law, a voluntary heir who dies before the testator
transmits nothing to his heirs (Art. 856, Civil Code). (b) The above case is one involving accretion and not
representation. It must be observed that had Mario survived the testator, Luis would have been entitled to his legitime
of onehalf (1/2) of the hereditary estate in his capacity as compulsory heir and one-half (1/2) of the one-half (1/2) dis
posable free portion in his capacity as voluntary heir; Mario, on the other hand, would have been entitled also to one-
half (1/2) of the one-half (1/2) disposable free portion as voluntary heir. But then, the latter died before the testator.
Therefore, the provisions of the Civil Code on accretion (Art. 1015, et seq.) are applicable and not the provisions on
representation (Art. 970, et seq.). Since the requisites of accretion in testamentary succession are present, Mario’s
share shall now accrue to Luis.
Problem — X died in 1960 leaving a will wherein he devised a house and lot, now valued at P2,000,000, to his friend,
A, as fi duciary heir and to B, the eldest son of A, as fideicommissary substitute or second heir. B died in 1975,
survived by two legitimate children, E and F. In 1980, A died intestate survived by: (a) his two sons, C and D, and (b)
his two grandchildren, E and F. C and D now claim that the house and lot (subject matter of the fi deicommissary
substitution) should be divided in accordance with, the rules of intestacy; in other words, C is entitled to 1/3 of the
property; D, to 1/3; and E and F, also to 1/3 by right of representation. E and F, on the other hand, contend that they
are entitled to the property to the exclusion of all others. Decide.
Answer — E and F are correct. It must be observed that B, as fideicommissary substitute or second heir, acquired a
right to the subject property upon the death of the testator, X. This is ordained by Art. 866 of the Civil Code. When he
died in 1975, this right passed to his children, E and F. This is also ordained by Art. 866 of the Civil Code. Therefore,
E and F are now entitled to the subject property to the exclusion of all others.
ment leaving his estate valued at P12 Million to his commonlaw wife Roshelle. He is survived by his brother, Ronnie
and his half-sister Michelle. 1. Was Don’s testamentary disposition of his estate in accordance with the law on
succession? Explain your answer.
2. Assuming further that he died intestate, survived by his father Juan, his brother Ronie, his half-sister Michelle and
his legitimate son Jayson. How will you distribute his estate? Explain.
Answer – 1. Yes. Don’s testamentary disposition of his estate is in accordance with the law on succession. Don has
no compulsory heirs not having ascendants, descendants nor a spouse (Art. 887, NCC). Brothers and sisters are not
compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise incapacitated to inherit
from him. A common-law wife is not incapacitated under the law as Don is not married to anyone.
2. Jayson will still be entitled to the entire P12 Million as the father, brother and sister will be exluded by a legitimate
son of the decedent (Art. 887, NCC). This follows the principle that the descendants exclude the ascendants from
inheritance. (Suggested Answers to the 2006 Bar Examination Questions, PALS)
Problem No. 1 — In 1970, O, a son of A by his fi rst wife, B, donated a valuable lot located in Metro Manila to his
halfbrother, P, a son of A by his second wife, C. In 1975, both A and O were killed in a vehicular accident. In 1978, P
died intestate. The lot passed to his mother, C, who was the only intestate heir. In 1980, C also died intestate. The lot
is now claimed by: (1) X, a brother of A; (2) Y, a sister of B; and (3) Z, a sister of C. Who is entitled to the property?
Why?
Answer — X alone is entitled to the property. Undoubtedly, the lot is reservable within the meaning of Art. 891 of the
Civil Code. All of the requisites of reserva troncal are present. In the fi rst place, the property had been acquired by
operation of law by an ascendant (C) from his descendant (P) upon the death of the latter; in the second place, the
property had been previously acquired by gratuitous title by the descendant (P) from a brother (O); and in the third
place, such descendant (P) died without any legitimate issue in the direct descending line who can inherit from him.
Conse quently, when the property passed by operation of law to C, the latter was obliged to reserve it for the benefi t
of relatives of P who are within the third degree and who belong to the line from which the reservable property came.
The real question, therefore, is — who, among the three claimants can qualify as reservatorio or reservee? In order
to answer this question, two tests should be applied. They are: fi rst, is the claimant a relative of the descendant-
propositus (P) within the third degree; and second, does he belong to the line (line of O) from which the reservable
came? Applying these tests to the case at bar, it is clear that Y cannot qualify because she is not even a relative of
the descendant-propositus, P. Neither can Z qualify because she does not belong to the line from which the property
came. She is not related by consanguinity to O. But X can qualify. He is not only a relative of P (being a paternal
uncle) within the third degree; he also belongs to the line from which the reservable property came. Therefore, he
alone shall be entitled to the property. Problem No. 2 — O and P are the legitimate children of H and W. H died in
1970. In 1972, O donated to his brother, P, a valuable lot located in Metro Manila. In 1975, O was killed in a vehicular
accident. In 1978, P died intestate. The lot passed to his mother, W, who was the only intestate heir. In 1980, W also
died intestate. The lot is now claimed by S, a sister of W, and by B, a brother of H. Who is entitled to the property?
Why?
Answer — Both S and B are entitled to the property in equal shares. Undoubtedly, the lot is reservable within the
meaning of Art. 891 of the Civil Code. All of the requisites of reserva troncal are present. In the fi rst place, the
property had been acquired by operation of law by an ascendant (W) from a descendant (P) upon the death of the
latter; in the second place, the property had been previously acquired by gratuitous title by the descendant (P) from a
brother (O); and in the third place, such descendant (P) died without any legitimate issue in the direct descending line
who can inherit from him. Consequently, when the property passed by operation of law to W, the latter was obliged to
reserve it for the benefi t or relatives of P who are within the third degree and who belong to the line from which the
reservable property came. Since both S and B are third degree relatives of P and both belong to the line from
whence the reservable property came, the property should now be given to them automatically and by operation of
law. (Note: We are, of course, aware of the view of Justice Paras that the origin of the property must be a half-brother
or half-sister, thus implying that if the origin is a brother or sister of the full blood, the property is not reservable within
the meaning of Art. 891 of the Civil Code (3 Paras 232). It is respectfully submitted, however, that the law does not
make such a distinction. As far as the origin of the property is concerned, it speaks only of “another brother or sister”.
Consequently, even if the origin is a brother or sister of the full-blood, the property is still reservable although the
question of line becomes unimportant. (See 6 Manresa, 7th Ed., 334). Of course, if in the above problem, W was
survived also by, let us say, a son or daughter, who is a brother or sister of O and P, the question of whether or not
the property is reservable will become moot and academic. Whether under instestate succession or under Art. 891 of
the Civil Code, the property shall pass to such brother or sister.)