WILLS AND SUCCESSION REVIEWER

SUCCESSION I. General Provisions (Arts. 774-780) A. Definition/What is transmitted Art. 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 ill or by operation of law.

Art.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.

Art.776.The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. INHERITANCE Is the property or right acquired SUCCESSION Is the manner by virtue of which the property or right is acquired

Art.777.The rights to the succession are transmitted from the moment of the death of the decedent. Two kinds of Death in Succession: 1. Actual Death 2. Presumed Death Ordinary Presumption Caused by ordinary absence At the end of 10 years or at the end of 5 years in case he disappeared after the age of 75 Art.788.Succession may be: 1. Testamentary 2. Legal or intestate 3. Mixed Other kinds of Succession : a) Compulsory ( or necessary or forced ) succession succession to the legitime b) Contractual Succession this happens when a future husband and future wife give to each other in their marriage stttlement as much of their future property, in the event of death, as they may validly dispose of in a will. Extraordinary Presumption Caused by an extraordinary or qualified absence 4 years

Art.779.Testamentary succession is that which results from the designation of an heir, made in a will excuted in the form prescribed by law. Rules for Testamentary Succession: 1. Testamentary succession may be done thru a will or thru a codicil. 2. The will or codicil may be: a. Notarial ordinary, attested or acknowledged b. Holographic handwritten by the testator from beginning to end, coplete with date and signature 3. In case of doubt, testamentary succession is preferred to legal or intestate succession. Art.780.Mixed succession is that effected partly by will and partly by operation of law.

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.

Art.782.An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. Kinds of Successors a. Heirs Voluntary Like a friend

Compulsory If entitled to the legitime b. Legatees & Devisees Legatees If they succeed to particular personal properties ( legacies )

Devisees If they succeed to particular real properties ( devises)

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 his estate, to take effect after his death. Essential Elements and Characteristics of a Will: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. The making of a will is a statutory right. It is a unilateral act. It is a solemn or formal act. There must be animus testandi. The testator must be capacitated to make a will. The will is strictly a personal act in all matters that are essential. It is effective mortis causa. It is essentially revocable or ambulatory. It is free from vitiated consent. It is an individual act. It disposes of the testators estate in accordance with his wishes. Last will Testament

Disposes of real property

Disposes of personal property

Art.784.The making of a will is a strictly personal act;it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Art.785.The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they arer to take, when referred to by name, cannot be left to the discretion of a third person.

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 poperty or sums of money are to be given or applied.

Art.787.The testaor may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. Example: I institue X as my heir provided that my friend, Y will agree. The institution of X is void, as well as the participation or delegation of Y. (2) Rules of Construction and Interpretation/Law Governing Formal Validity 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.

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 testators 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. Kinds of Ambiguity in a Will : a) Latent or Intrinsic Ambiguity that which does not appear on the face of the will, and is deiscovered only by extrinsic evidence. Example : I institute my brother in law ( when it is discovered that I have two brothers-in law). This ambiguity is not found in the will itself, which is clear. The doubt arises only because of things outside the will. NOTE: In a will, this kind of ambiguity arises: 1. when there is an imperfect description of the heir,legatee, or devisee; 2. when there is an imperfect description of the gift given; 3. when only one recipient is designated but it turns out that there are two or more who fit the description.

b.Patent of Extrinsic Ambiguity- that which appears on the face of the will itself; in other words, by examining the provision itself, it is evident that it is not clear. Example : I hereby institute some of my seven brothers. It is evident here that we do not know how many of the brothers are being instituted. 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. 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 the will was drawn solely by the testator, and that he was unacquainted with such technical sense.

Art.791.The words of a will are to receive an interpretation which will give to evry 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.

Art.792.The invalidity of one several dispositions contained in a will does not result in the invalidity of 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 testaor had possessed it at the rime of making the will that such was his intention.

Art.794.Every devise or legacy shall convey all the interest which the testaor could devise or bequeth in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest.

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.

Art.796.All persons who are not expressly prohibited by law may make a will.

Art.797.Persons of either sex under eighteen years of age cannot make a will.

Art.798.In order to make a will it is essential that the testator be of sound mind at the time of its execution.

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.

Art.800.The law presumes that every person is of sound mind, in the absence of proff 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.

Art.801.Supervening capacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening capacity.

Art.802.A married woman may make a will without the consent of her husband, and without the authority of the court.

Art.803.A married woman may dispose by will of all separate property as well as her share of the conjugal partnership or absolute community property.

Art.804.Every will must be in writing and executed in a language or dialect known 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 testators 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 witnessses, 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.

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.

Art.807.If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art.808.If the testator is blind,the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Art.809.In the absence of bad faith,forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

Art.810.A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

Art.811.In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.

Art.812.In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.

Art.813.When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Art.814.In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

Art.815.When a Filipino is in a foreign country, he is authorized to make 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 citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if exceuted 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 or 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.

Art.820.Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code.

Art.821.The following are disqualified from being witness to a will: 1.Any person not domiciled in the Philippines; 2.Those who have been convicted of falsification of a document, perjury or false testimony.

Art.822.If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.

Art.823.If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.

Art.824.A mere change on the estate of the testator for the payment of debts due at the time of the testators death does not prevent his creditors from being competent witnesses to his will.

Art.825.A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered.

Art.826.In order that a codicil may be effective, it shall be executed as in the case of a will.

Art.827.If a will as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:

1. The document or paper referred to in the will must be in existence at the time of the execution of the will; 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof; 3. It must be identified by clear and staisfactory proof as the document or paper referred to therein; and 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

Art.828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.

Art.829.A revocation done outdside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testaor had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.

Art.830.No will shall be revoked except in the following cases: 1. By implication of law; or 2. By some will,codicil, or other writing executed as provided in case of wills; or 3. By burning,tearing,cancelling, or obliterating the will with the intention of revoking it,by the testator himself, or by some other person in his presence, and by his express direction.If burned,torn,cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unathorized destruction,cancellation,or obliteraion are established according to the Rules of Court.