Pre-Week Lecture on Succession

By: Albano

Who is a person of sound mind?

Soundness of mind- always presumed. Burden of proof lies upon the person who alleges that the testator is of
unsound mind. Exceptions:
1. That person executed a holographic will, despite a judicial decree declares such person of unsound mind.
Prove that the will was executed when he is of sound mind.
2. Prior to execution of the will, the person is known to be of sound mind.

Requirements of a will

Article 804, 805 and 806- memorize

Requirements of a notarial will

Rule on the number and presence of witness

3-witness rule ( presence of the 3 witnesses is required when the testator signs the will).

Notary Public cannot be considered as 1 of the 3 instrumental witnesses because he cannot subscribe before
himself.
The witness must sign in the presence of the testator and one another.

When the testator affixes his signature, the 3 witnesses must be present.

What is meant by the term “presence”?- sufficient that the witnesses have the opportunity to have witnessed the
signing of the document. Presence does not require actual seeing of the signing of the document. Considered also as
presence when:
1. See thru mirror (translucent mirror, not transparent)
2. Outside the room but has access to the other room thru the door
3. Witness in the CR, if it was opened, considered present.

Witness and testator must affix their signatures at the left margin, numbered in letters

Attestation clause

Notarization

Signature of a testator

Proof of presence of the witnesses and testator- intended to establish the extrinsic validity of the will

What the law requires is substantial compliance. Position of the signatures does not constitute a fatal defect.

What if 1 of the pages of the will was not signed by the testator? Valid, apply the liberality principle. It is not a fatal
defect. Giving tender care to the will. Denying the petition for the probation of the will is equivalent to allow the
testator to die without a will. (check recording no. 39 29

Tender care rule

Petition

If 4 out of 10 unsigned- fatal

Attestation clause:
1. Number of pages of the will
2. Testator and witness signed the document in the presence of one another
3. 3 witnesses must sign at the bottom of the attestation clause. Failure to sign at the bottom but signatures
are affixed at the marginal area of the attestation clause. The will is invalid

SC ruled that the signature below the attestation clause is mandatory in nature. It has a different significance
than those placed in the marginal side of the other pages of the will. Principle of liberality and tender care
rule are not applicable.

Notarization- The law does not require that the date of subscription be the same with the date of
notarization.

Check recording:

Notary public’s notarial commission already expired.

May a blind person act as a testator or as a witness?

Blind testator is possible subject to the 2-reading rule. The will must be read @ least twice: one before the notary
public and 1 before the witnesses.
If there is a substantial compliance with the 2-reading rule, the will is valid. The law does not require the witnesses
to have an actual copy of the will, reading before them is sufficient.

Holographic will- must be completely dated, completely written thru testator’s handwriting and signed by the
testator.

Date is only month and year—this was ruled by the court as substantial compliance of the requirement of the law.
Completely dated required by the law as long as it can be proven that it was executed on a any day of the said
month and year. It is not a fatal defect but a substantial compliance of the requirement of the law. The court must
give tender care to the will rather than allowing the testator to die without a will, being the voice of the testator
after his death.

Any erasure in the holographic will, it has to be authenticated by affixing complete signature.

A foreigner who executed a will in accordance with the formalities prescribed by the law of his country (requiring
only 1 witness) and brought in the Philippines (requiring 3-witnesses), can the will be admitted for probate? Applying
lex loci celebrationis principle, submitted to probate in the Philippines, it will be admitted for probate because the 1-
witness rule is in accordance with the formalities prescribed by the law of the country where it was executed.

If it is a Filipino citizen who executes a will at the Consular Office in the US, being an extra-territorial extension of the
PH jurisdiction, he has to comply with PH law re: succession.

Submission of the will executed abroad by a will to PH court for probate is equivalent to recognition of foreign
judgment.

Joint will executed by 2 Filipinos abroad- nationality principle will apply, under PH law, joint will is prohibited.

Joint will executed by foreigners abroad- validly recognized in PH

A Filipino citizen executing a last will and testament in accordance with the foreign law, can the will be submitted for
probate in PH court. If the Filipino citizen dies in that foreign country, the foreign court will refer it to PH court.

‘renvoi doctrine- the foreign court will refer back to PH court the will submitted to it for probate by a Filipino ‘citizen.
It cannot be admitted for probate by the foreign court because it involves amount of successional rights and
preterition of some heirs.

Domiciliary Theory- applies when a person is a national of one country with a domicile in different country.

INSTITUTION OF HEIRS- done by executing a will (holographic or notarial will).

Instituting a voluntary heir, subject to a condition that she/he will not marry.- not valid against moral

Preterition- when there is total omission of compulsory heir in the direct line (descendant/ascendant). Ascendant is
excluded by the presence of a descendant. In the absence of a descendant, ascendant will inherit.

Is there preterition of a spouse? None, spouse is not an heir in the direct line. Preterition is an omission of
compulsory heir in the direct line.

Preterition of a sister? None. Collateral not direct.

Preterition of an adopted child? Yes, equivalent to legitimate child, under direct line.

Prior to death of the father, a child received a donation from the former. Upon death, the son-donee was no longer
included in the heirs instituted. Preterited? No, because the donation is considered an advance inheritance, he is not
considered preterited. If the donation does not cover the entire amount of legitime, he can demand for the
completion of his share which will cause reduction of the shares of the instituted heirs but it will not cause
preterition.

Fideicomissary substitution- 2nd heir does not inherit from the 1st heir but directly from the testator.

Can heirs be deprived of their legitimes? No, it will result to preterition.

Renunciation of future heritance- future inheritance cannot be waived being contrary to law.

A person cannot enter into any contract stipulating re: future inheritance.

REserva troncal

A reservista cannot execute his own will to dispose the properties to his own relatives. The property is merely held in
trust for the reservatarios, not as part of his own estate. The property will go back to the reservatarios.

Can reservista acquire title of the property subject of reserva? Yes, but the title will include a notation re: reservable
character of the property in order to protect the interest of the reservatarios against the buyer in good faith and for
value.

Mere recording of an affidavit in the day book of the register of deeds is considered as notice to the whole world,
even not annotated in the title of the property- the buyer is considered a buyer in bad faith (reserva exists).

Curtain principle (sometimes known as mirror doctrine)- intended to protect the reservatarios.

Upon the death of the reservista, no reservatarios, it will go back to the estate of the origin decedent and will be
distributed thru intestate.

No perpetual thrust over the property, the prohibition against partition should last only for 20 years at its maximum.

An illegitimate child cannot inherit from the legitimate relatives of the ascendant (applicable only in case of intestate
succession)- iron curtain rule (barrier rule). In testamentary succession, a legitimate relative of ascendant may
institute the illegitimate child of his relative thru testamentary will.

Intestate succession
1. Descendant
2. Ascendant
3. Illegitimate descendant
4. Surviving spouse
5. Bro and sis
6. Nephews/nieces within the 4th civil degree

Testate succession

Right of representation

Adopted child will not inherit by right of representation because the relationship created by adoption is limited only
as between the adopted and adopter.

Right of accretion

Collation

In case of irrevocable donation, it can still be subjected to collation because to exclude a property from collation, it
must be expressly provided that it will not be subjected to collation.
A repudiating heir cannot represent but can inherit from the ascendant of the ascendant who he repudiated.