14/09/2019

Succession law notes part 3

Atty. Jan Jason Lumanag

SOURCES: Paras, Atty. Yang Yang-Espejo

Notes, Mison, Lecturer’s undergrad notes

Subsection 5
Codicils and incorporation by reference
Art. 825. A codicil is supplement or addition to a will, made after the execution
of a will and annexed to be taken as a part thereof, by which disposition made in
the original will is explained, added to, or altered. (n)

Article 825 gives you the definition of a codicil. In latin codicil is called CODEX,
which means little will or little code.

The provision clearly states that codicil is part of the will. Since it is part of the will
then it cannot exist as its own.

The provision also states that a codicil is executed after the will.

Question: if the original will is a notarial will, should the codicil be also in the
form of notarial codicil?
Answer: NO. when you executed first a notarial will, you may execute a notarial
codicil or holographic codicil and still it is taken a part of the original will
regardless of the form.

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Question: what is a holographic codicil?

Answer: Like a holographic will, it is written , dated , signed in the handwriting of the
testator.
Answer: what is a notarial codicil?

Answer: When you say Notarial Codicil, it is attested by at least 3 witnesses, has an
attestation clause, signed on the left hand margin in each and every page. Thus all the
requirements for a notarial will should also be followed in the execution of a notarial
codicil.

Question: what if the will and the codicil are in conflict.

Answer: the one who will prevail is the codicil because it is executed AFTER the will then
it is considered the later expression or the wishes of testator.

Art. 826. In order that a codicil may be effective, it shall be executed as

in the case of a will. (n)

It follows here that the codicil will be void if it does not comply with the
formal requirements laid down by the law. But the invalidity of the codicil
will not affect the validity of the will. So the original will stands as if it is
unaffected by the codicil.

Art. 827. If a will, executed 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 satisfactory 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. (n)

This is the rule on incorporation by reference.

Reason for this rule: When the testator executes the will, there are certain other documents which the
testator wants to be part or incorporate in his will.

For instance: the testator executes his will and he wants his inventory of properties to form part of his
will, the testator need not copy the provisions or the contents of the 10-page inventory because if he
should not be allowed to just incorporate by reference , then it would be very exhausting for the
testator to execute his will. So he can just refer to his inventory and he has to follow article 827.

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General rule: In probate of wills, only documents or

papers which are executed in the form of wills can be
allowed probate. That’s why codicils can also be
probated.
Exception: article 827. why? Because while a document
or the paper mentioned here is not in the form of will, it
can be probated along with the will.

Question: what is the rule of incorporation by

reference?
Answer: it is incorporation of an intrinsic or separate
document or paper into a will by reference so as to
become part thereof and probated such.

Take note: in order for a codicil or a will to be

probated it must be executed in compliance with
the requirements prescribed by law. In article 827,
it provides an exception to the rule that only
documents executed in compliance with the
requirements should be allowed probate. In this
article even if the requirements prescribed by law
for documents to be admitted to probate are not
followed, still the document may be admitted to
probate.

… the inventory need not be attested by subscribing

witnesses or contain an attestation clause etc.

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1st requirement: the document or paper referred to in the will must be in existence
at the time of the execution of the will.
When you execute the will and you want to incorporate the will for example the
inventor, then the inventory has to be already in existence AT THE TIME OF THE
EXECUTION of the will because when you incorporate an inventory which is yet to be
prepared then that is not a valid incorporation by reference.

For example: I say in my will “My property referred to in page 8 of my inventory to

be executed tomorrow”. It is clear that inventory will still have to be executed. So, it
is not valid as provided under article 827.

2nd requirement: the will must clearly describe and identify the same, stating among
other things the number of pages thereof;

Question: what about if the document is voluminous 1000+ pages?

Answer: Still there is a need to state the number of pages because the law does not
give any exception.

3rd requirement” it must be identified by clear and satisfactory proof as the

document or paper referred to therein.
Here, you have to prove that the document you are presenting is the same document
that is being referred to in the will. This is during the probate.

4th requirement: 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.

For example, the inventory: the inventory must be

signed on each and every page by the testator and
witness.

SUBSECTION 6
REVOCATION OF WILLS AND TESTAMENTARY DISPOSATIONS

Article 828. A will may be revoked by the testator at any

time before his death. Any waiver or restriction of this
right is void. (737a)
Article 828 speaks REVOCATION.

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Question: what is Revocation?

Answer: revocation is an act of the mind terminating the potential
capacity of a will to operate at the death of the testator manifested by
some outward and visible act or sign symbolic thereof.

an act of mind- there must be an intent to revoke. The mind wants to

revoke.

FORMULA
Intent to revoke +outward act= revocation takes place
No intent to revoke + overt act = no revocation
Intent to revoke + no overt act = no revocation

as long as the testator is alive he can revoke his will. This is the essence of
the will being ambulatory and essentially revocable. So you cannot
prevent the testator from revoking his will. If the testator agrees in writing
that, “ yes , I waive my right to revoke my will”, that is void.

Article 829. A revocation done outside 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 testator 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. (n)

This article talks about the laws governing revocation.

Rules:
1. With respect to wills revoked OUTSIDE the Philippine by a non-resident whether Filipino or
foreigner. It is governed by:
a. The law of the place where the will was MADE (not where the will is revoke)
b. The law of the place of DOMICILE of the testator.

2. If made by RESIDENT whether a Filipino or foreigner. It is governed by:

a. The law of the place of REVOCATION – this is provided under article 17 NCC, the rule of lex
loci celebrationis. The law of the place of execution and the execution in that case is the
revocation.
b. The law of the place of DOMICILE- in this case, the Philippines because he is a resident of
the Philippines.
So when the revocation is made in the Philippines, what applies is the law of the Philippines
regardless of the nationality or domicile because the Philippines is the Place of Celebration, in
this case the Celebration of Revocation.

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PINAKA IMPORTANTE! YOU HAVE TO REMEMBER THAT IN LAWS GOVERNING

REVOCATION, THE NATIONAL LAW OF THE TESTATOR HAS NO RELEVANCE.
Omit the national law of the testator.

Article 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
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (n)

1 by implication of law

QUESTION: why is it that there is an implication of law?

Answer:Because there are certain circumstances wherein logically,
these acts are done only by a person who wants to revoke his woll.
That is why the law presumes that if these acts are done by the
testator then the testator has revoked his will. It is presumed by law
because it is presumable the intention of the testator.

QUESTION: what happened if despite the execution of the act which

the law considers as the act of revocation, the testator really has no
intention of revoking his will?
Answer: the law shall prevail. If testator wants to give effect to his
will then he has to re execute his will and refrain from doing those
acts which the law considers to be an implication that he has revoke
his will.

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What are the acts considered by law as an act of revocation?

1 article 854 preterition
When the testator omits a compulsory heir in the direct line , the institution of heris in the will is
annulled. In effect , there is revocation by operation of law.

2 Article 957 of the NCC- when after the testator has made a will he sells, donate the legacy or devise
Example: A gives a car to B . A after giving the cat by virtue of the will sells the car to C. In this case, it is
presumed that A has revoked the legacy of the car to B.

3.Artivle 396 when a credit has been given as a legacy is judicially demanded by the testator.
Example: Paolo jas receivebales from JC. But in his will Paolo is giving the credit from JC to inigo. One
month after the execution of the will giving his legacy of the credit, paolo judicially demand or filed a
case against JC for collection of the amount. In that case, the legacy or credit is deemed to have been
revoked by operation of law.

4 Under article 1032 of NCCC when the heir,legatee or decisee commits an act of unworthiness.
Example: A house is given to Bimby, but Bimby attempts the life of kris, his mother so that is an act of
unworthiness. In that case, the disposition in favor of bimby is revoked by operation of law

5 Article 106 of the FC provisions in the will in favor of the spouse who has given cause to legal
separation, these provisions are considered revoked by operation of law. The moment the decree of
legal separation has been rendered.

Q: Arthur executed a will which contained only: (i) a provision

disinheriting his daughter Bernica for running off with a married man,
and (ii) a provision disposing of his share in the family house and lot in
favor of his other children Connie and Dora. He did not make any
provisions in favor of his wife Erica, because as the will stated, she
would anyway get ½ of the house and lot as her conjugal share. The
will was very brief and straightforward and both the above provisions
were contained in page 1, which Arthur and his instrumental witness,
signed at the bottom. Page 2 contained the attestation clause and the
signatures, at the bottom thereof, of the 3 instrumental witnesses
which included Lambert, the driver of Arthur; Yoly, the family cook,
and Attorney Zorba, the lawyer who prepared the will. There was a 3rd
page, but this only contained the notarial acknowledgement.
The attestation clause stated the will was sighed on the same occasion
by Arthur and his instrumental witnesses who all signed in the
presence of each other, and the notary public who notarized the will.
There are no marginal signatures or pagination appearing on any of
the 3 pages. Upon his death, it was discovered that apart from the
house and lot, he has a P1 million account deposited with ABC back.
(2008)
Was Erica preterited?

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2 Revocation by the execution of another will or codicil

Revocation in this manner may be express or implied.

Question: When is there implied revocation?

Answer: Implied revocations consists in complete inconsistency between
two wills.

Question: A made a will no.1 . After one month, he wanted to revoke the
same, so he executed will No. 2 , expressly revoking No.1. In the belief that
he had already accomplished what he wanted, he then tore ino two pieces
will no. 1 . On his death, it was discovered that will No. 2 had not been
validly executed.
Answer: While it is true that the revocation was not produced by an invalid
will, revocation here was made thru an overt act (the act of tearing) with
intent to revoke. Hence will no. 1 had indeed been revoked.

Answer 2: There was no revocation, because the act of tearing is prompted

on the belief that the second will had been validly executed. Thus it is not
valid under the doctrine of dependent relative revocation article 833.

3 by overt act
Remember this requsite:
1. There must be an OVERT ACT specified by law;
2. There must be completion of subjective phase of the overt act;
3. There must be animus revocandi or intent to revoke;
4. The testator at the time of revoking must have capacity to make a will;
5. The revocation must be done by the testator himself, or by some other person in his presence
and by his express direction.

The act of burning

It is sufficient even if a small part of the instrument itself be burned even though the entire writing itself
be left untouched. (basta with intent to burn)

Question. A wanted to revoke his will, so he threw the will to the stove so that it would be burned
later on when a fire would be lighted in the stove. However, the will was later removed by another
person from the stove BEFORE the stove was lighted. Is there revocation?
Answer:
NO, there was no revocation. The law provides that a revocation by overt act is valid only when there
was an overt act coupled with animus revocandi.

Here , while there was animus revocandi, however, there was no overt act. Thus there was no
revocation.

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TESTATE ESTATE OF THE LATE ADRIANA MALOTO V. CA

It is clear that the physical act of destruction of a will, like burning in

this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by
the testator himself. It may be performed by another person but under
the express direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself.

Take note that if a will is burned accidentally, there is no revocation in

view of the lack of intention.

In one case if the envelope containing a will is burned, but the will
itself is untouched, there is NO REVOCATION even if there be intent to
revoke. Why? There was no over act of burning the will distinguished
from burning the envelope. (REED V. HARRIS)

The overt act of tearing

Take note that even the slight tear is sufficient. The greater is the evidence of animo
revocandi. Tearing into Three pieces is sufficient. When all the other requsites are
present. As a matter of fact tearing into two is even enough.

PERKES V. PERKES
FACTS: in a fit of anger, a testator tore his will twice and was continuing to so tear
when somebody held his arms and persuaded him to refrain from tearing his will. He
then placed the torn pieces in his pocket and said, “nothing significant has after all
been torn”. Later, the testator died, and the torn will was found.

Issue: was there a revocation here?

HELD: The will was NOT revoked for the act of tearing was subjectively not yet
complete, inasmuch as he intended to tear up cutting the will some more.

Tearing includes cutting.

VERY IMPORTANT: the act of CRUMPLING or the removal of FASTENER binding the
pages of a will, does not constitute a revocation even though there be animo
revocandi.

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the overt act of OBLITERATING or CANCELING

obliteration – renders the word illegible ; cancellation - is
the drawing of lines across a text , but the words remain
legible.

Take note of this rule: If there is cacellation or obliteration

of non-vital part leaves the other parts in force.

Article 831. Subsequent wills which do not revoke the

previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills. (n)

This article speaks of implied revocation , and this may be total or partial. If there is inconsistency only
in certain portions.

The law does not favor revocation by implication , and therefore efforts to RECONCILE must be made.

Article 832. A revocation made in a subsequent will shall take effect, even if the new will should
become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein,
or by their renunciation. (740a)

Effect on revocation if NEW WILL is inoperative.

Take note there is a difference between an invalid will, and a valid but ineffective will.

We already know that an invalid revoking will cannot revoke. But a valid though ineffective will can
revoke.

Example: A made a will making X his heir. Later, A expressly revoked his first will by executing a second
will containing a revocatory clause. A made Y his heir. The second will was validly made, but on A’s
death, A refused to accept the inheritance. Is the first will still revoked?

Ans: Yes. Therefore , A will be considered to have died intestate, and X cannot inherit, except if he be
also one of the intestate heirs.

If the revoking will is both invalid and ineffective, it is clear that there can be no revocation.

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Article 833. A revocation of a will based on a false cause or an illegal cause is null
and void. (n)

This is revocation based on false or illegal cause. As already discussed under Art. 830 ,
this article 833 is one of the aspects of “dependent relative revocation”, or ore
properly , at least for the purpose of this article. “A revocation made under a mistake”.

Example: T made a will making A his heir. T then learned that A was dead, so he
made another will instituting B as heir. If A turns out to be still alive, who inherits?
Ans: A inherits, because the revocation was based on a false cause.

The fact that the cause for the revocation was a false belief or a mistake must be
found on the face of the will or codicil itself, if the revocation is through a will or
codicil.

If the testator states in his second will: “ I am not sure whether A is dead or still
Alive. However , I hereby revoke the legacy to him which I made in my first will”. Is
there a revocation of the legacy?
Ass: Yes. For here, he cannot be said to be proceeding upon an error.

Article 834. The recognition of an illegitimate child does not lose its legal effect, even
though the will wherein it was made should be revoked. (741)

Effect of revocation on the recognition of an illegitimate child.

According to Article 278 voluntary recognition of an illegitimate child may be

done:
1 in a record of birth
2 will
3 statement before court of record
4 any authentic writing

Now then , if the will in which recognition had been made is subsequently
revoked, the recognition still remains valid.

Reason for Art. While a will is essentially revocable, recognition is irrevocable

(unless there be vitiated consent)

Moreover –
1 recognition is not really a testamentary disposition
2 recognition does not wait for the testator’s death to become effective.

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SUBSECTION 7. Republication and Revival of Wills

Article 835. The testator cannot republish, without

reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form. (n)

Republication is the process of re-establishing a will, which

has become useless because it was void, or had been revoked.

How made?
Republication may be made by:
1 re execution of the original will (the original provisions are
copied)
2 execution by a codicil ( also known as implied republication)

Instance where publication of the settlement does not

constitute constructive notice to the heirs.

CUA v. VARGAS
Facts: A notice via publication of the settlement was made.
Issue: Did the publication of the settlement constitute
constructive notice to the heirs had no knowledge of it?
Held: It did not constitute constructive notice to the heirs who
had no knowledge or did not take part in it “because the
same”, in other words of the Supreme Court, is notice after
the fact of execution.

In the abovementioned case, the heirs who actually

participated in the execution of the extrajudicial settlement,
which included the sale to a third person of their pro indiviso
shares in the property.

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Art. 836. The execution of a codicil referring to a previous will has the effect
of republishing the will as modifi ed by the codicil. (n)

(1) Requisites and Limitations of Republication

(a) To republish a will void as to its FORM, all the dispositions must be
reproduced or copied in the new or subsequent will.

Example: T made a notarial will in 2002 with only 2 attesting witnesses. This
will is void as to its form and is therefore useless. If he desires to give life to
the will, say in 2004, what he should do is to republish it. How? By executing a
new will in 2001, copying all the provisions in the old will, but this time, he
must use three attesting witnesses. The effect is as if he made the will not in
2002 but in 2004. In other words, the will is a reestablished act, and therefore
the will governs property he had acquired up to 1997.

[NOTE: Please observe that under Art. 793, had the original will been valid,
and no republication been made, X would get only 5 automobiles, even if by
the time of T’s death, T already had 8 automobiles, unless of course, there
was an express contrary provision in the will.].

(b) To republish a will valid as to its form but already

revoked, the execution of a codicil which makes reference to
the revoked will is suffi cient. (Here, mere reference is
enough: there is no necessity of reproducing all the previous
dispositions). (Of course, in this case there would be nothing
wrong with a RE-EXECUTION.)

Question: The Case of In Re Engles’ Estate (Or.) 276 p. 270 — T

made a will in Feb. 1921, which he revoked later in August
1921. In June 1925, he made a codicil to the will of Feb. 1921
(not August), describing the will, giving its date, with a formal
statement that he was declaring it to be his last will and
testament. The codicil merely referred to the will, without
reproducing same. Is there suffi cient republication?

Answer: Yes, and, therefore, the will of Feb. 1921 should be

given effect. There was no necessity here of reproducing.

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(2) Effects of Republication by Virtue of a Codicil

(a) The codicil revives the previous will.
(b) The old will is republished as of the date of the codicil
— makes it speak, as it were, from the new and later
date.
[NOTE: See “example of this effect” under Comment No.
1(a).].
[NOTE: In case some parts of the will are revoked by the
codicil, those still remaining speak as of the date of the
codicil. (See 57 Am. Jur., Wills, Sec. 427).].

(c) A will republished by a codicil is governed by a statute

enacted subsequent to the execution of the will, but
which was operative when the codicil was executed. (57
Am. Jur., Wills, Sec. 626).

Example: At the time a notarial will was executed with

two witnesses, the law required three. Suppose later on,
the law changed the required number to two, and
suppose this time a codicil referring to the will is made
with two (as required) witnesses, is the old will
republished?

ANS.: While it is true that generally a void will (as to its

form) cannot be republished merely by reference in a
later valid codicil, and while it is true that according to
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,
still it is submitted that in this particular case, there was a
valid republication because of the fact that here, the
defect has been cured.

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(3) Some Problems on Republication

(a) In 2002, T made a notarial will, without an attestation

clause. Later on, he made a private instrument to the effect
that he was ratifying said will. Is there a republication here?
ANS.: No, since there would be a reproduction of all the
provisions. Of course, even a holographic will would be
sufficient, but even here, reproduction is required.

b) A testator revoked his will by cutting out his signature in the

will, with animo revocandi. Later, he changed his mind, and
pasted back his signature in its previous position. Does the
revocation remain or has there been a republication?
ANS.: The will remains revoked, the attempted republication
not having complied with legal requirements for
republication.

(4) Query
Can a will, invalid because of fraud or force or undue influence or
because the testator was under 18 or was insane, be republished by
mere reference in a codicil?

ANS.: It is submitted that the answer is yes, because this is not a case
when the will is void as to its FORM. (Form — in this Article, it is
believed, refers to such things as those covered by Art. 805, et seq.,
like defect in the number of witnesses, lack of or fatal defect in the
attestation, lack of acknowledgment, etc.). But not to vitiated consent
or to lack of testamentary capacity, although of course these are
included in the phrase “extrinsic validity,” as distinguished from
“intrinsic validity.’’

Art. 837. If after making a will, the testator makes a second will
expressly revoking the fi rst, the revocation of the second will
does not revive the fi rst will, which can be revived only by
another will or codicil. (739a)

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(1) Use of Republication and Revival As has already been

intimated, a void will or a revoked one is a nullity, devoid
of any effect, and is useless. And the only ways of giving
effect to it are:

(a) republication (this includes both re-execution and

reference by a codicil — already discussed)
(b) revival

(2) Distinctions Between Republication and Revival

(a) Republication is an act of the TESTATOR.
(b) Revival is one that takes place by OPERATION of LAW.

(“Revival” has been defined as the restoration or

reestablishment of revoked will or revoked provisions thereof,
to effectiveness, by virtue of legal provisions.)

Example of revival
While omission of a compulsory heir in the institution of
heirs annuls the institution, still if the omitted heir dies
ahead of the testator, the institution is revived, without
prejudice to the right of representation.

Three Problems on Revival

(a) I made 3 wills. Will No. 2 expressly revoked Will No. 1.
Will No. 3 revoked Will No. 2. Is Will No. 1 revived?
ANS: No, by express provision of Art. 837. The rule
is based on the principle that the revocatory clause of
the second will took effect immediately or at the instant
the revoking will was made.

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(b) T made 3 wills. Will No. 2 is completely inconsistent with, and

therefore, impliedly repeals Will No. 1. Later Will No. 3 revokes Will
No. 2. Is Will No. 1 revived?

ANS.: Yes. This is a clear inference from Art. 837. Since the Article uses
the word “expressly,” it follows a sensu contrario (contrariwise) that in
case of an “implied” revocation by the second will, an automatic
revival of the first occurs. Apparently, the reason is the fact that an
“implied revocation” is ambulatory, the inconsistency being truly and
actually apparent only mortis causa, when the properties are
distributed.

(c) A made Will No. 1, then Will No. 2 expressly revoking the first. Then
he destroyed Will No. 2, and orally expressed his desire that his fi rst
will be followed. Should this be allowed?

ANS.: No, the oral expression of the desire to revive cannot be given
effect. He should have made a new will or codicil. (Art. 837, see also 65
Am. Jur., Wills, Sec. 621).

Subsection 8. — ALLOWANCE AND DISALLOWANCE OF WILLS (PROBATE)

Art. 838. No will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for
the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution. (n)

‘Probate’ Defined
Probate is the act of proving before a competent court the due execution of a will by a
person possessed of testamentary capacity, as well as approval thereof by said court.
Probate is one thing; the validity of the testamentary provisions is another. The fi rst
decides the execution of the document and the testamentary capacity of the testator; the
second deals with descent and distribution. (Sumilang v. Ramagosa, L-23135, Dec. 26,
1967).

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Two Kinds of Probate

(a) Probate during the testator’s lifetime (this does
not prevent the testator from revoking his
probated will or from making another one).
In Palacios v. Catimbang Palacios, L-12207 (Dec. 24,
1959), the Supreme Court held that after a will has
been probated during the lifetime of a testator, it
does not necessarily mean that he cannot alter or
revoke the same before his death.

(b) Probate after the testator’s death

Need for a Probate

(a) It is essential because under the law “no will shall pass either real
or personal property unless it is proved and allowed in accordance
with the Rules of Court.’’ (Art. 838, first paragraph). Even if only one
heir has been instituted, there must still be the judicial order of
adjudication. (Lopez v. Gonzaga, et al., L-18788, Jan. 31, 1964).

Thus in probate proceedings, the court —

1) orders the probate proper of the will
2) grants letters testamentary or letters with a will annexed
3) hears and approves claims against the estate
4) orders the payment of the lawful debts
5) authorizes the sale, mortgage, or any other encumbrance of real
estate
6) and directs the delivery of the estate or properties to those who are
entitled thereto. (Timbol v. Cano, L-15445, Apr. 29, 1961).

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Pastor, Jr. v. Court of Appeals

GR 56340, June 24, 1983
If the deceased was survived by his wife (a Spanish national) and his
children, there is need, aside from liquidating the conjugal partnership,
to set apart the share of the surviving spouse in the conjugal property,
preparatory to the administration and liquidation of the estate of the
deceased.

Reyes v. Barretto Datu

L-17818, Jan. 25, 1967
FACTS: The judgment of the CFI (now RTC) distributed the estate of the
deceased erroneously, but the decision was not appealed. It
consequently became final. What can be done about the erroneous
distribution of the estate?

HELD: The distribution remains, for the judgment has become final,
and therefore can no longer be attacked except for lack of jurisdiction
or extrinsic
fraud.

Why probate is essential?

firstly, because the law expressly requires it;

secondly, probate is a proceeding in rem (requiring
publication, among other things) and, therefore, cannot
be dispensed with or substituted by any other
proceeding, judicial or extrajudicial without offending
public policy;
thirdly, the right of a person to dispose of his property by
virtue of a will may be rendered nugatory; and
fourthly, because absent legatees, and devisees, or such
of them as may have no knowledge of the will could be
CHEATED of their inheritance thru the collusion of some
of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others. (Ventura v.
Ventura, et al., L-11609, Sep. 24, 1959)

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Vera v. Navarro (En Banc)

FACTS: The Commissioner of Internal Revenue garnished the properties of a decedent
while the death taxes (e.g., estate tax) had not yet been paid. But the trial judge
ordered a partial distribution of the estate among the heirs on the supposition that
the estate still had enough assets with which to pay the taxes. And so it lifted the writ
of garnishment. Was this proper for the Court to do?

HELD: The actuation of the judge was improper and is considered a grave abuse of
discretion. The distributive shares cannot be given unless the state tax is fi rst paid, or
unless there be a sufficient bond given for the payment of the tax.

Heirs of the Late Jesus Fran v. Salas

210 SCRA 303
Where part of estate is not distributed yet, recourse is not to reopen probate
proceedings, but a motion for execution or an action for reconveyance. A probate
judgment long closed cannot be attacked by a mere motion for reconsideration.

Failure to attack the original of the will to the petition is not critical where the will
itself was adduced in evidence. Otherwise stated, it is not necessary to attack the
original will to the petition for probate.

Intestate Estate of the late Don Mariano San Pedro y

Esteban, represented by its Heir-Judicial Administrator
Engracio F. San Pedro v. CA, Aurelio Ocampo, Dominador
D. Buhain, and Teresa C. Dela Cruz GR 103727, Dec. 18,
1996 77 SCAD 481

A probate court’s jurisdiction is not limited to the

determination of who the heirs are and what shares are
due them as regards the estate of a deceased person.

Neither is it confined to the issue of the validity of wills.

Parenthetically, questions of title pertaining to the
determination prima facie of whether certain properties
ought to be included or excluded from the inventory and
accounting of the estate subject of a petition for letters of
administration, may be resolved by the probate court.

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Nufable v. Nufable
As a general rule, courts in probate proceedings are limited only to passing
upon the extrinsic of the will sought to be probated and the compliance with
the requisites or solemnities prescribed by law.
Well-entrenched is the rule that a co-owner can only alienate his pro indiviso
share in the co-owned property.

Probate may also be called “probation,’’ “legalization,’’ “protocolization,’’ and

“authentication.” (Manahan v. Manahan)

Procedure and Reason for ‘Ante Mortem’ Probate

(a) Testator himself petitions the competent court for the probate of his will.
(b) He then follows the procedure for the post mortem of ordinary probate,
except insofar as the Supreme Court may impose additional rules for ante
mortem probates
(Art. 838, second and third pars).
[NOTE: Up to the time of writing, no additional rules have been formulated.].
(c) Reason for allowing this kind of probate — to prevent or minimize fraud,
intimidation, and undue infl uence; also to enable the testator to correct at
once failure to observe legal requirements.

VERY IMPORTANT POINTS IN POST-MORTEM PROBATE

I. The probate proper (this deals with EXTRINSIC

VALIDITY)
In Dorotheo v. CA, Probate proceedings deals generally with the
extrinsic validity of the will sought to be probated.

II. The inquiry into INTRINSIC VALIDITY and the DISTRIBUTION itself of
the property.].

Take note, Even if a will has already been probated, if later on a

subsequent will is discovered, the latter may still be presented for a
probate.

Take note: Even if the discovered will had been made earlier than the
probated will, it can still be probated as long as the two wills can be
reconciled, or if there are portions in the fi rst which have not been
revoked in the second.

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Effect of Probate Proper (EXTRINSIC VALIDITY)

As long as there has been FINAL JUDGMENT by a court of COMPETENT JURISDICTION,

and the period for filing a petition for relief (Rule 38, Secs. 2 and 3, Rules of Court) has
expired without such petition having been submitted, the PROBATE PROPER (or
allowance) of the will is binding upon the WHOLE WORLD (being a proceeding in rem)
insofar as TESTAMENTARY CAPACITY (at least 18; sound mind) and DUE EXECUTION
(including all formalities and absence of any ground for disallowance) are concerned.
(See Art. 838, last paragraph). In fact, the order allowing probate of the will is not
interlocutory and is, therefore, immediately appealable. (Dionisio Fernandez, et al. v.
Ismaela Dimagiba, L-23638, Oct. 12, 1967).

An order determining the distributive share of the estate to which a person is entitled
is, of course, appealable, before final judgment. (Claro Santillon v. Perfecta Miranda, et
al., L-19281, June 30, 1965). In no case is the judgment conclusive on matters such as
ownership of property. (Castañeda v. Alemany, 3 Phil. 427; Macam v. Gatmaitan, 60
Phil. 385; Ongsingco v. Judge Tan, et al., L-7635, July 25, 1955; Padilla v. Matela, L-
07479, Oct. 14, 1955; see also Mercado v. Santos, 66 Phil. 215). However, persons who
are neither compulsory heirs, voluntary heirs, legatees, or devisees cannot question
anymore the validity of the order of distribution that has long become fi nal. (Rufino
Coloma, et al. v. Atanacio Coloma, L-19399, July 31, 1965).

Question: To be conclusive, the probate must have been

conducted by a competent court with full jurisdiction.
What is that court?
ANS.: The Regional Trial Court of the province —
1) where he has real estate (in case of NON-RESIDENT
testator).
2) where he resided at the time of his death (in case of a
RESIDENT testator). [NOTE, however, that all Courts of
First Instance (now RTC) have jurisdiction.
The residence or domicile of the testator affects only the
VENUE, but NOT the JURISDICTION of the Court. The rule
grants jurisdiction to the Court where jurisdiction is fi rst
INVOKED, without taking VENUE into account.

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Garcia Fule v. Court of Appeals

FACTS: Although the deceased (a member of the
Constitutional Convention) was domiciled in
Calamba, Laguna, his actual place of residence
when he died was in Carmel Subdivision, Quezon
City. What is the proper venue of his estate
proceedings — Laguna or Quezon City?

HELD: Quezon City because the term “resides” in

Sec. 1, Rule 73 of the Rules of Court, should be
viewed in its popular sense (physical presence in a
place where a person actually stays) and not in the
legal sense which is domicile.

Rosa Cayetano Cuenco v. Court of Appeals, et al.

FACTS: On the death of Senator Mariano Jesus Cuenco, he was survived by his children
of the first marriage, AND by his second wife and two minor sons. One of the children
of the fi rst marriage (Lourdes Cuenco) alleged in the Cebu CFI (now RTC) that the
father died intestate; she therefore asked that she be appointed administratrix.

One week later, the widow fi led with the Quezon City CFI (RTC) a petition for the
probate of the deceased’s last will and testament and for her to act as executrix.
Lourdes Cuenco opposed the petition in the Quezon City Court, alleging the pendency
of the intestate proceeding in Cebu.

The Quezon City Court denied the motion to dismiss fi led by Lourdes, heard the case,
and eventually admitted the will to probate, allowed the widow to act as executrix.
The Quezon City Court also ruled that the residence of Cuenco at the time of his death
was at 69 Pio y Margal, Sta. Mesa Heights, Quezon City. Issue: Were the rulings
of the Quezon City Court proper?

HELD: Yes, the Quezon City Court acted regularly within its jurisdiction in admitting the
will to probate and in naming the widow as executrix thereof. The Supreme Court is
not inclined to annul proceedings regularly had in a lower court (even if the latter is
not the proper venue therefor), if the net result would be to have the same
proceedings repeated in some other court of similar jurisdiction.

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Question: The CFI (RTC) allowed a will, stating among other things that
testator was of sound mind. The case was appealed to the Supreme
Court. May the Supreme Court disallow the will and reverse the CFI
(RTC), or is the decision of the CFI (RTC) binding insofar as
testamentary capacity and due execution are concerned?

ANS.: The Supreme Court can of course reverse the CFI (RTC), and
disallow the will, because after all, there was no final judgment yet.
The law speaks of a conclusive judgment, “subject to the right of
appeal.” (Art. 838, last paragraph).

Mercado v. Santos
FACTS: 16 months after fi nal judgment on the probate and approval of
a will, the proponent was prosecuted for allegedly having presented a
forged will. He was thus accused of forgery. May he be convicted,
granting that he really had forged the duly probated will?

HELD: No more, since the probate of the will rendered conclusive its
due execution and therefore conclusive as to the fact that the will was
genuine and not a forgery.

Question: In the settlement of estates, what are usually done?

ANS: 1) First, proof of testamentary capacity and due execution are
presented, and the court then issues an order allowing or disallowing the will.
2) After this is done, the distribution of the estate may be done, after all
questions on intrinsic validity are disposed of.

[NOTE: The fi rst part is really different from the second part. The fi rst is
concerned only with testamentary capacity and due execution. Other matters
are generally irrelevant. After the probate order is made, same may be
appealed within the proper period.]

Castañeda v. Alemany
FACTS: In a will, a husband appointed his wife guardian of his children’s
properties. In the probate order, may the Judge pass upon the validity of the
appointment?
HELD: No, for this does not concern the extrinsic validity of the will.
[NOTE: Not even the Supreme Court, during the appeal of the probate order,
should pass upon the validity of the appointment of guardian, except of
course to say that no pronouncement on said point should have been made.].

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VERY IMPORTANT FAMILIARIZE: The following points, among others, should

NOT be included in the probate order, since they affect intrinsic validity:
1) exclusion of the widow from the inheritance. (Sahagun v. Gorostiza, 7 Phil.
347).
2) disinheritance of a daughter. (Limjuco v. Canara, 11 Phil. 394).
3) impairment of the legitime. (In Re Estate of Johnson, 39 Phil. 156).
4) declaring a certain woman to be the true wife of the testator. (Alkuino Lim
Pang v. Uy Pian Ng Shun, 52 Phil. 571).
5) partitioning of conjugal properties. (Reynoso v. Tolentino, O.G. Supp. Aug.
2, 1951, p. 5).
6) right of a widow to the inheritance. (Barredo v. Vencer, 56 Phil 806).
7) titles to property, and annulment of alleged fraudulent sales. (According to
the court, one reason for avoiding this in summary proceedings particularly is
to minimize expenses, so much that even the appointment of an
administrator in summary proceedings is dispensed with). (Padilla v. Matela,
L-7479, Oct. 24, 1955).
[NOTE: These matters may be brought in different or later proceedings, but
not in the probate (proper) proceedings, and even if passed upon thereon,
cannot be res judicata.

TAKE NOTE!
As a general rule, questions as to title to property
cannot be passed upon in testate or intestate
proceedings, except where one of the parties prays
merely for the inclusion or exclusion from the
inventory of the property, in which case the probate
court may pass provisionally upon the question
without prejudice to its fi nal determination in a
separate action. The probate court can decide only
provisionally questions of title for the purpose of
inclusion into, or exclusion from, the inventory,
without prejudice to a final determination of the
question in a separate action.

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