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WILL

What is a will?
[Article 783] A will is an act whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of this estate, to take effect after his death.

NA
You can also say that a will is an instrument wherein certain dispositions are made by a person
to effect mortis causa (to take effect upon death)

Taken from the definition of Article 783 NCC, who can make a will?

SA
PERSON
-Only a natural person can make a will. Juridical persons are not allowed (partnership,
corporations, organizations)

IO
-One who has legal capacity (take note that legal capacity is governed by the national law of the
person, so this may vary. Here in the Philippines the legal age is 18years old. – RA 6809 AN ACT

-S
LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING Article
234 of Executive Order No. 209 which took effect on December 18 ,1989)
AN
The law enforce at the time of the death of the decedent will determine who the heirs should
be.
OJ

What are the characteristics/elements of a will?

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1. It is strictly a personal act [Art. 784-785; 787)

A

It cannot be delegated to a third person. The disposition of the will should

be the disposition of the person. Since it is personal, will-making shall not
RV

be made in public. Even if a will is acknowledged before a notary public, a

will is not a public document. Even a notary public is not required to keep
a copy of the will.
NE

Rule 132, Sec. 19(b)

B. AUTHENTICATION AND PROOF OF DOCUMENTS
MI

Section 19. Classes of Documents. — For the purpose of their presentation

evidence, documents are either public or private. Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required
by law to the entered therein.
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All other writings are private.

Non-delegability of making a will

-it is the exercise of the disposing power that cannot be delegated. The
mechanical aspect, such as typing or encoding and printing, is not “the act
of disposition”, hence it can be delegated.

The following constitute the essence of will-making or the exercise of the

disposing power.

NA
1. The designation of heirs, devisees, or legatees
2. The duration or efficacy of such designation (including such things
as conditions, terms, substitutions)
3. The determination of the portions they are to receive

SA
Exception (786)
2 things that must be determined by the testator:
1. the property or amount of money to be given

IO
2. the class or cause to be benefited
2 things that may be delegated by the testator:

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1. the designation of persons, institutions, or establishments within
the class or cause
2. the manner of distribution
AN
The efficacy of the will should not be left to another person (787)
OJ

Query -is this not in conflict with the provision on (1041-1057) – heir is
free to accept or reject the inheritance. Is this not a scenario wherein the
heir is given the freedom to determine of whether the disposition (as to
VI

him/her) is effective or not?

Ans: No this not. The heir does not actually say that the disposition is
A

invalid or it is inoperative. The heir is merely expressing his/her desire to

RV

accept or not to accept the inheritance. Whether it is operative or not,

he/she does not actually care.
NE

2. There must be animus testandi (intent to make a will)[Art. 783] One should know that the
effect of such document is to transfer one’s properties to a particular person mentioned in the
document.
MI

3.The making of a will is a statutory right, not a natural right [Art. 783]

4.It is a solemn or formal act (Arts. 804-819) For the will to be valid, each form shall comply with
the rules prescribed by the New Civil Code.

For the notarial will:

1. -in writing and in a language or dialect known to the testator
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NENITA DE VERA SUROZA vs JUDGE REYNALDO P. HONRADO, A.M. No.

2026-CFI December 19, 1981

Question:
The will is written in English. In the introduction of the will it is stated
that the language known to the testator is English. In the last statement
of the will, it was stated however that it was read and Translated in
Filipino. Is the will valid?
Answer:
No, because it violated the provision that it must be written in a language

NA
or dialect known to the testator. The mere fact that it was translated in
Filipino suggests that English was not understood by the testatrix.

2. -subscribed by the testator

SA
Signature of the testator:
a. Can the testator sign with his thumbmark?
b. Can he use a rubber stamp as his signature?

IO
c. Can he use an engraved dye?
d. What if the hand of the testator is guided, can it still be

-S
considered as his signature?
e. Can the testator just sign by an “X”mark or “/” or check
mark?
AN
f. Can the testator just use a mark in signing even if he/she
knows how to write?
g. Can another person sign for the testator?
OJ

3. Attested and subscribed by three or more credible witnesses in the

presence of the testator and of one another
VI

Purpose of presence of witnesses: to avoid fraudulent

substitution of the will; and to make more difficult the
invention of false testimony by the witnesses.
A
RV

 The requirement is at least 3 witnesses. It can be more but

should not be less. 3 witnesses is what is considered as
substantial compliance.
NE

Q: Who are qualified to be witnesses to a will?

A: Any person is qualified to be a witness to a will provided
he/she is: (Article 820 and 821)
MI

1. of sound mind
2. eighteen years or more
3. not blind, deaf or dumb
4. able to read and write
5. domiciled in the Philippines
6. not convicted for the crime of falsification of a document,
perjury or false testimony.

 Take note that there are just 3 crimes mentioned

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(exclusive). Notice also that it has something to do with

the honesty of a person. For obvious reasons, how can you
expect a person to tell the truth when he has that
propensity to tell a lie. We can say that the witness is not
just credible.

 The provision speaks of “conviction”. But then the word

“final” is not indicated there. Just take note that when the
law speaks of conviction it must be understood to be “final”,
so that when a person is convicted at the lower court and

NA
the case has been appealed, then we do not speak of
conviction yet to disqualify the witness.

 Once convicted with finality, that remains a stain on the person’s

SA
character so that receiving a pardon will not erase that fact of your
nature (of being dishonest). Pardon will not restore you to being
qualified as a witness to a will. But if a pardon was granted

IO
because it was found out that the person is innocent as there was
another one who was convicted for the act, then pardon here

-S
restores the qualification of the person to be a witness.
AN
Q: Can a person who will benefit from the will be a witness?
A: Yes, however the devise or legacy that is given to such witness will
be void. Unless there are other 3 witnesses.
OJ

Q: How about if it was the:

-spouse,
-a parent,
VI

-a child,
-or anyone claiming the right of the witness, spouse, parent or child
A

the right of the who was given a devise or legacy in the will?
A: Same answer. Same effect.
RV

Q: How about the Compulsory heir, can he/she be a witness?

A: Yes. He/she will however be still entitled to the legitime. The
NE

disqualification to inherit merely pertains to the free portion.

Q: How about the creditor of the testator?

MI

A: Yes qualified. He is still entitled to payment. The payment is not a

devise or legacy, its not a gift afterall.

4. -each and every page, except the last, must be numbered

if the document is back to back, then the front and the back should be
numbered.
5. -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
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direction, in the presence of the instrumental witnesses, and that the

latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another
Q. when is the marginal signatures not needed?
A: When the will contains only 1 page.
Q: If the number of pages is not indicated in the attestation clause, will it
invalidate the will?
A: Yes, because the purpose in indicating the number of pages is to
prevent any increase or decrease in the pages and to safeguard against
possible interpolation or omission of one or some of its pages. Unless of

NA
course, the number of pages can be determined in the will itself, meaning
it is written somewhere else (in the will)

SA
IO
-S
AN
OJ
VI
A
RV
NE
MI
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NA
SA
IO
-S
AN
OJ
VI
A
RV
NE
MI

In this will, the lawyer wrote the name of the testator and that the
testator placed his thumbmark beside his name. In the attestation clause
there was no indication that the testatrix had requested the lawyer to
sign her name in the will. Is the will valid?

Answer:
The will is valid. This is not a fatal defect in the attestation clause.
Although the provision requires that if the name of the testator is written
by another person, it must be stated so and it was under his express
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direction. What the word “write” means here is sign and in this case,
although it was the lawyer who write the name of the testator, he merely
did so to indicate the location of the thumbmark of the testator. The
testator did sign the will by placing his thumbmark that is why there was
no need to indicate that it was the lawyer who wrote the name of the
testator.
(Payad vs Tolentino, G.R. No. 42258,September 5, 1936)

Q: What if, instead of the thumbmark, the testator placed there “X”, would
the will still be valid?

NA
A: No, a thumbmark and an X mark are not the same. The cross does not
have the trustworthiness of a thumbmark. Absence of any indication in
the attestation clause that the testator had let another person sign his
name under his express direction, the will is void. The cross could had

SA
been admitted as the signature of the testator if it was proven that it was
his usual signature.
(Garcia vs Lacuesta, G.R. No. L-4067,November 29, 1951)

IO
Question:

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If the thumbmark is not clear and the ridge impression cannot be
ascertained, will it affect the validity of the will?
Answer:
AN
The fact that there is no clarity of ridge impression will not invalidate the
thumbmark of the testator.
(Jottings and Jurisprudence in Civil Law – Succession by Balane p73)
OJ

Matias vs Salud, L-10751, June 23, 1958

VI

6. -acknowledged before a notary public by the testator and the witnesses

-Absence of this is fatal to the validity of the will
-the notarization of the will raises the presumption of its regularity of its
A

execution.
RV

7. -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
NE

communicate to him, in some practicable manner, the contents thereof.

Q: Should this fact be contained in the attestation clause to consider the
will as valid?
MI

A: No. It could be proved during the probate proceedings by extrinsic or

parol evidence. It is better though if it will be expressed in the will itself
(in any part or in the attestation clause) compliance to this.

8. -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.
*this provision applies not only to blind testators but also those who, for
one reason or another, are incapable of reading their wills.
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Brigido Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers
at three (3) feet" by reason of the glaucoma which he had been suffering
from for several years and even prior to his first consultation with an eye
specialist on 14 December 1977. The doctor explained that although the
testator could visualize fingers at three (3) feet, he could no longer read
either printed or handwritten matters as of 14 December 1977, the day of
his first consultation.

NA
Q: Is Brigido within the contemplation of “blind persons”?
A: Yes. Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are "incapable
of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading

SA
the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be
no other course for us but to conclude that Brigido Alvarado comes within

IO
the scope of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not the

-S
lawyer who drafted the will and codicil did so confortably with his
instructions. Hence, to consider his will as validly executed and entitled to
probate, it is essential that we ascertain whether Art. 808 had been
AN
complied with.
(Alvarado vs Gaviola Jr, G.R. No. 74695 September 14, 1993)
OJ

Article 809 – VERY IMPORTANT

In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of
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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.
A
RV

For Holographic will:

1. entirely written, dated, and signed by the hand of the testator himself.
2. no other form
NE

3. may be made in or out of the Philippines. If made outside the Philippines,

the forms and solemnities of the country where it was executed may be
observed.
MI

4. need not be witnessed.

5. dispositions of the testator written below his signature must be dated and
signed by him in order to make them valid as testamentary dispositions
6. When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and a date,
such date validates the dispositions preceding it, whatever be the time of
prior dispositions
7. In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
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signature.

5.It is a unilateral act The testator cannot condition the validity of his will upon the consent of
another. [Art. 783]

6.The testator must be capacitated to make a will [Arts. 796-803]

Testamentary Capacity and Intent

• Testamentary power refers to the (right) or privilege given by the state to the
individual to execute wills.

NA
• Testamentary capacity refers to the qualification of a person to execute a will.
• A person may have testamentary power but no testamentary capacity
• But they may be used interchangeably

SA
KINDS OF TESTAMENTARY CAPACITY
1. Active Testamentary Capacity – refers to the qualifications of persons to execute wills
2. Passive Testamentary Capacity – refers to the qualifications of persons to receive by

IO
virtue of a will. (This would be discussed more exhaustively under the chapter on the
capacity to succeed.)

-S
Here we are talking about legal capacity and soundness of mind.
AN
Legal capacity means that you must be of age (depends on the national law of the
testator. 18 years old at the time of the execution of the document. Do not anymore
confuse your mind as to the computation of your age. The moment you have your 18th
OJ

bday, that is where you will be of legal age)

To constitute a sound and disposing mind, it is not necessary that the mind shall be
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wholly unbroken, unimpaired, or unshattered by disease or otherwise, or that the

testator should be in the full possession of his reasoning faculties. It is just necessary
that the testator has the ability to determine these 3 things:
A

1. nature of the estate to be disposed of

RV

2. proper object of one’s bounty

3. character of testamentary act.
NE

Ortega vs Valmonte, G.R. No. 157451 December 16, 2005

MI

Facts:
Placido, deceased, once lived in the United States until he finally reached retirement. In
1980, Placido finally came home to stay in the Philippines, and he lived with his sister
Ciriaca Valmonte, in a house they both owned. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old. But in a little
more than two years of wedded bliss, Placido died on October 8, 1984. Before he died, he
executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983.
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The probate of the will was opposed based on these grounds:

Xxx
4. Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;

NA
Petitioner allege that the testator’s wife and sole beneficiary, conspired with the notary
public and the three attesting witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution and the attestation of the will.

SA
She also contends that it was "highly dubious for a woman at the prime of her young life
[to] almost immediately plunge into marriage with a man who [was] thrice her age x x x

IO
and who happened to be [a] Fil-American pensionado," thus casting doubt on the
intention of respondent in seeking the probate of the will. Moreover, it supposedly

-S
"defies human reason, logic and common experience" for an old man with a severe
psychological condition to have willingly signed a last will and testament.
AN
Ruling:

The presumption of soundness of mind was not successfully rebutted by petitioner.

OJ

In determining the testamentary capacity of the testator it is enough that at the time of
the execution of the will the testator, he/she has the ability to determine these 3 things:
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1. nature of the estate to be disposed of

2. proper object of one’s bounty
3. character of testamentary act.
A
RV

It must be noted that despite his advanced age, he was still able to identify accurately
the kinds of property he owned, the extent of his shares in them and even their locations.
As regards the proper objects of his bounty, it was sufficient that he identified his wife as
NE

sole beneficiary. The omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent in its disposition
becomes irrelevant.
MI

Note:
Neither old age, physical infirmities, feebleness of mind, weakness of the memory, the
appointment of a guardian, nor eccentricities are sufficient singly or jointly to show
testamentary incapacity. Each case rests on its own facts and must be decided by its own
facts.

In the case of (Nagtas vs. Paguio, G.R. No. L-6801, March 14, 1912) en banc
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-Testator for some fourteen or fifteen years prior to the time of his death suffered from a
paralysis of the left side of his body.
-a few years prior to his death his hearing became impaired and that he had lost the
power of speech.
-However, he retained the use of his hand and could write fairly well.
-Through the medium of signs, he was able to indicate his wishes to his family.
- The rule of law relating to the presumption of mental soundness is well established,
and the testator in the case at bar never having been adjudged insane by a court of
competent jurisdiction, this presumption continues, and it is therefore incumbent upon

NA
the opponents to overcome this legal presumption by proper evidence.

Wilson vs. Mitchell (101 Penn., 495)

SA
-The testator died at the age of nearly 102 years.
-In his early years he was an intelligent and well informed man.
-About seven years prior to his death he suffered a paralytic stroke and from that time

IO
his mind and memory were much enfeebled.
-He became very dull of hearing and in consequence of the shrinking of his brain he was

-S
affected with senile cataract causing total blindness.
-He became filthy and obscene in his habits, although formerly he was observant of the
proprieties of life.
AN
- sometimes, when aroused from sleep or slumber, he would seem bewildered
- but he was never heard of utter an irrational expression.
OJ

Bugnao vs. Ubag (14 Phil. Rep., 163) -en banc

Testator Domingo Ubag was at that time of making the will was extremely ill, in an
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advanced stage of tuberculosis complicated with severe intermittent attacks of asthma.

He was too sick to rise unaided from his bed; that he needed assistance even to rise
himself to a sitting position; and that during the paroxysms of asthma to which he was
A

subject he could not speak.

RV

Will was opposed by the siblings because testator left all his property to his wife.
NE

(when testator was still alive, they were not in speaking terms with his siblings)

- Pain, sickness, debility of body, from age or infirmity, would, according to its violence or
MI

duration, in a greater or less degree, break in upon, weaken, or derange the mind, but the
derangement must be such as deprives him of the rational faculties common to man"
- Sound mind does not mean a perfectly balanced mind.
- The question of soundness is one of degree; on the other hand, it has been held that
testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind.
- Weakness of intellect, whether it arises from extreme old age from disease, or great
bodily infirmities or suffering, or from all these combined, may render the testator
incapable of making a valid will, providing such weakness really disqualifies her from
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knowing or appreciating the nature, effects, or consequences of the act she is engaged in.

Pre-senile Dementia (no mental capacity)

-this is a degenerative mental infirmity; progressive and irreversible.
-the testatrix is 84 years old. 2 years before making such will, her husband died. She was
present at the burial. However, despite of being present thereat, she still believes that
her husband is alive (she will go to her room and when she sees that it’s empty, she
would come out crying, asking where her husband is and that she insist on looking for
her husband.
-She was susceptible to suggestion and that when told what to do, she would

NA
immediately forget about it.
-she lacks memory for certain events
-she lacks understanding and volition
(Ramirez vs Ramirez, 39 SCRA 147)

SA
7.It is free from vitiated consent [Art 839}

IO
Ortega vs Valmonte, G.R. No. 157451 December 16, 2005 – 3rd division

-S
There is no fraud here. Fraud "is a trick, secret device, false statement, or pretense, by
which the subject of it is cheated. It may be of such character that the testator is misled
or deceived as to the nature or contents of the document which he executes, or it may
AN
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would not have made. To
be appreciated, it must be proved not just alleged, otherwise it will be self-serving. In
OJ

this case, no evidence was offered to prove fraud only an allegation.

The fact also that there is a conflict between the dates appearing on the will does not
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invalidate the document, "because the law does not even require that a [notarial] will x x
x be executed and acknowledged on the same occasion. It is not an indication that fraud
was attendant in the signing of the will.
A
RV

Presumption of Insanity
1. When the testator, one month or less, before the execution of the will was publicly
known to be insane (Art. 800)
NE

2. when the testator executed the will after being placed under guardianship or ordered
committed, in either case, for insanity (under rules 93 and 101, respectively, of the Rules
of Court, and before said order has been lifted)
MI

Torres vs Lopez, G.R. No. L-24569, February 26, 1926

en banc

Facts:
Tomas Rodriguez died in the City of Manila Philippine Islands on February 25, 1924,
leaving a considerable estate. Shortly thereafter Manuel Torres, one of the executors
named in the will asked that the will of Rodriguez be allowed but this was opposed on
the ground that the testator lacked mental capacity because at the time of making the
 Page 13 of 13

will, he was suffering from senile dementia and was under guardianship.

The questioned will is hereby reproduced:

ONLY PAGE

In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas

Rodriguez, of age and resident of the City of Manila, Philippine Islands,
do freely and voluntarily make this my will and testament in the
Spanish language which I know, with the following clauses:

NA
First I declare that I am a Roman Apostolic Catholic, and order that my
body be buried in accordance with my religion, standing and
circumstances.

SA
Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez
de Bueno as my only universal heirs of all my property.

IO
Third. I appoint D. Manuel Torres and D. Santiago Lopez as my

-S
prosecutors.

In witness whereof I sign this typewritten will, consisting of one single

AN
page, in the presence of the witness who sign below.

(Sgd.) TOMAS RODRIGUEZ

OJ

(Left marginal signatures:)

TOMAS RODRIGUEZ
VI

ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS
A
RV

We hereby certify that on the date and in the place above indicated, Don
Tomas Rodriguez executed this will, consisting of one single typewritten
page, having signed at the bottom of the will in the presence of us who
NE

saw as witnesses the execution of this will, we signed at the bottom

thereof in the presence of the testator and of each other.
MI

(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS

Dr. FLORENTINO HERRERA, Dr. FERNANDO CALDERON, Dr. ELIAS DOMINGO have jointly
certified that they have jointly examined Mr. Tomas Rodriguez, to be suffering from
anemia, hernia inguinal, chronic dyspepsia and senility.

As to his mental state the result of the different tests to which this patient was
 Page 14 of 14

submitted is that his intellectual faculties are sound, except that his memory is weak,
which is almost a loss for recent facts, or events which have recently occurred, due to his
physical condition and old age.

They also certify that they were present at the time he signed his will and have found his
mental state in the same condition as was found by the undersigned in their former
examination and that in executing said will the testator and full knowledge of the
contents thereof.

Issue:

NA
Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or
had he passed so far along in senile dementia as to require the court to find him of
unsound mind?

SA
Held:
Tomas Rodriguez possessed sufficient mentality to make a will at the time of its
execution.

IO
One of the grounds for disallowing a will is "If the testator was insane or otherwise

-S
mentally incapable of the execution." The appointment of a guardian of a person alleged
to be non compos mentis (not of sound mind), by a court having jurisdiction necessarily
creates a presumption of the mental infirmity of the ward; but such decree does not
AN
conclusively show that the testamentary capacity of the person under guardianship is
entirely destroyed and the presumption thus created may be overcome by evidence
proving that such person at the time he executed a will was in fact of sound and
OJ

disposing mind and memory.

At the time of the execution of the will, Tomas Rodriguez may have been of advanced
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years, may have been physically decrepit, may have been weak in intellect, may have
suffered a loss of memory, may have had a guardian and may have been extremely
eccentric, but he still possessed the spark of reason and of life, that strength of mind to
A

form a fixed intention and to summon his enfeebled thoughts to enforce that intention,
RV

which the law terms "testamentary capacity."

Neither old age, physical infirmities, feebleness of mind, weakness of the memory, the
NE

appointment of a guardian, nor eccentricities are sufficient singly or jointly to show

testamentary incapacity so that each case rests on its own facts and must be decided by
its own facts. The Supreme Court has used a particular test relative to the capacity to
MI

make a will. This rule concerns the nature and rationality of the will. Is the will simple or
complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in
itself indicate that the will was the offspring of an unsound mind.

Tomas Rodriguez, comprehends the nature of the transaction in which he was engaged.
He had two conferences with his lawyer, Judge Mina, and knew what the will was to
contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in
the proper places at the bottom and on the left margin. At that time the testator
recollected the property to be disposed of and the persons who would naturally be
 Page 15 of 15

supposed to have claims upon him. While for some months prior to the making of the will
he had not manage his property he seem to have retained a distinct recollection of what
it consisted and of his income. Occasionally his memory failed him with reference to the
names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a
prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in
which the instrument distributed the property naming the objects of his bounty. His
conversations with Judge Mina disclosed as insistence on giving all of his property to the
two persons whom he specified.

NA
8.It is essentially revocable and ambulatory (Art. 828)

9.It is an individual act, as distinguished from a joint act The will must contain the act of only one
person. Joint will is prohibited. (Art. 818)

SA
Q: Joint wills are prohibited. Just in case a joint will, will be allowed by the
court, can it be set aside on the ground that the court decided without

IO
jurisdiction?
A: No, there is here only an error of judgment but a valid one (note that

-S
committing an error in decision making is inherent, just normal. If not
appealed, this becomes immutable)
AN
Question:
Husband and Wife made a will on one sheet of yellow paper. On the front
page, the husband wrote his last will and testament. At the back page,
OJ

the wife wrote her last will and testament. The disposition are the same
wherein they stated, individually, that in case one of them dies first,
everything that they own will go to the survivor. Is the will valid? Is this
VI

not an example of a joint will?

Answer:
Yes, the will is valid. This is not a joint will. Although the will was
A

contained in one sheet, each of them had made their own will.
RV

(This is according to the discussion in the book of Paras 2021 Edition page
126)
NE

The reason however in not allowing a joint will are these:

MI

1. to allow as much as possible secrecy, a will being a purely personal act

2. to prevent undue influence by the more aggressive testator on the
other
3. in case of death of the testators at different times, probate would be
harder
4. it militates against the right of the testator to revoke his will at any
time.

Question:
 Page 16 of 16

Suppose the Husband and Wife made a joint will in Country Q. In that
country, joint wills are allowed. Is the will valid considering that it merely
pertains to formalities in executing a will, an extrinsic validity, wherein
our law recognize the rule of lex loci celebrationes?
Answer:
The will is not valid by the express provision of Art. 818 and 819 which
clearly prohibits the execution of a joint will even if it is executed abroad
and allowed by that country.

NA
10. It disposes of the testator’s estate in accordance to his wishes [Art. 783]

11. It is effective mortis causa (Art. 783)

SA
Donation inter vivos or donation mortis causa? Why the need to
distinguish?

IO
The distinction between a transfer inter vivos and mortis causa is

-S
important as the validity or revocation of the donation depends upon its
nature. If the donation is inter vivos, it must be executed and accepted
with the formalities prescribed by Articles 748 and 749 of the Civil Code,
AN
except when it is onerous in which case the rules on contracts will apply. If
it is mortis causa, the donation must be in the form of a will, with all the
formalities for the validity of wills, otherwise it is void and cannot transfer
OJ

ownership.

(Art. 748. The donation of a movable may be made orally or in writing.

VI

An oral donation requires the simultaneous delivery of the thing or of the

document representing the right donated.
A
RV

If the value of the personal property donated exceeds five thousand pesos,
the donation and the acceptance shall be made in writing, otherwise, the
donation shall be void.
NE

Art. 749. In order that the donation of an immovable may be valid, it must
be made in a public document, specifying therein the property donated
MI

and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a

separate public document, but it shall not take effect unless it is done
during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be

notified thereof in an authentic form, and this step shall be noted in both
instruments.)
 Page 17 of 17

DONATION MORTIS CAUSA

KNOW ALL MEN BY THESE PRESENTS:

We, Spouses Restituto and Mamerta Gonzales, of legal ages,

Filipino, married to each other, and residents of Kalipayan Road,
Sagkahan, Tacloban City Philippines (hereinafter called the

NA
“DONORS”);

– and –

SA
Mares Gonzales, Merto Gonzales, and Tato Gonzales, likewise of
legal ages, Filipino, all single, and residents of San Jose, Tacloban,

IO
Philippines (hereinafter called the “DONEES”);

-S
witnesseth:

WHEREAS, the DONORS are the true and registered owner of a

AN
certain parcel of land, more particularly described as follows:

“A parcel of residential land, with building, known as Lot No. 1234

OJ

situated in Brgy 59B, Sagkahan Tacloban City with an area of 600

square meters and is declared for taxation purposes under Tax
Declaration No 21002-00102 in the name of Restituto Gonzales and
VI

Mamerta Gonzales. This parcel of land is bounded as follows: North

by Lot 4013, Cad. 710- D; South by Lot 3999, Cad 710-D; East by Lot
A

No. 4011, Cad. 710-D and West by Lot 4014, Cad. 710-D, and
covered by Transfer Certificate of Title No. 11601.”
RV

NOW THEREFORE, for and in consideration of the love and affection

the DONORS have for the DONEES, the DONORS do hereby
NE

TRANSFER, GIVE and CONVEY unto the DONEES, (his/her) heirs,

assigns and successors-in-interest, the above-described parcel of
land, to take effect upon the DONORS’ demise, subject to the
MI

following conditions:

1. It is our will that this Donation Mortis Causa shall be irrevocable

and shall be respected by the surviving spouse.

2. It is our will that Merto Gonzales, and Tato Gonzales will continue to
occupy the portions now occupied by them.
 Page 18 of 18

3. It is further our will that this DONATION MORTIS CAUSA shall not in
any way affect any other distribution of other properties belonging
to any of us donors whether testate or intestate and wherever
situated.

4. It is our further will that any one surviving spouse reserves the right,
ownership, possession and administration of this property herein
donated and accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.

NA
Here, what do you notice?

SA
In Austria-Magat v. Court of Appeals, the Court held that "irrevocability"
is a quality absolutely incompatible with the idea of conveyances mortis
causa, where "revocability" is precisely the essence of the act. A donation

IO
mortis causa has the following characteristics:

1. It conveys no title or ownership to the transferee before the death of

-S
the transferor; or, what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property
AN
while alive;

2. That before his death, the transfer should be revocable by the

OJ

transferor at will, ad nutum; but revocability may be provided for

indirectly by means of a reserved power in the donor to dispose of the
properties conveyed; and
VI

3. That the transfer should be void if the transferor should survive the
transferee.
A

The Court thus said in Austria-Magat v. Court of Appeals, 426 Phil. 263
RV

(2002) that the express "irrevocability" of the donation is the "distinctive

standard that identifies the document as a donation inter vivos." Here, the
donors plainly said that it is "our will that this Donation Mortis Causa shall
NE

be irrevocable and shall be respected by the surviving spouse." The intent

to make the donation irrevocable becomes even clearer by the proviso
that a surviving donor shall respect the irrevocability of the donation.
MI

Consequently, the donation was in reality a donation inter vivos.

Another thing is, the three donees signed their acceptance of the
donation, which acceptance the deed required. It has been held that an
acceptance clause indicates that the donation is inter vivos, since
acceptance is a requirement only for such kind of donations. Donations
mortis causa, being in the form of a will, need not be accepted by the
donee during the donor’s lifetime.
 Page 19 of 19

In Puig v. Peñaflorida, 122 Phil. 665, 672 (1965), in case of doubt, the
conveyance should be deemed a donation inter vivos rather than mortis
causa, in order to avoid uncertainty as to the ownership of the property
subject of the deed.

Question:

If let us say, Mamerta died ahead of her husband and thereafter, Restituto
made a document waiving his interest over said property subject of the
donation mortis causa to his daughter, Resta, what is the status of that

NA
waiver?

Answer:
The waiver in favor of Resta is void.

SA
Since the donation in this case was one made inter vivos, it was
immediately operative and final, and the donation is deemed perfected

IO
from the moment the donors learned of the donees’ acceptance of the
donation. The acceptance makes the donees the absolute owner of the

-S
property donated.

Given that the donation in this case was irrevocable or one given inter
AN
vivos, Restituto’s subsequent waiver of his rights and interests in the
property to Resta should be regarded as void for, by then, he had no more
rights to assign. He could not give what he no longer had. Nemo dat quod
OJ

non habet.

Question:
VI

Now, suppose Mares Gonzales, Merto Gonzales, and Tato Gonzales will file
a petition for the probate of that will, what will you do?
A

Answer:
RV

You have to dismiss that because that is not a will, that is a donation inter
vivos.
NE

Sample of a mortis causa provision:

“That, for and in consideration of the love and affection which the DONOR
has for the DONEE, and of the faithful services the latter has rendered in
MI

the past to the former, the said DONOR does by these presents transfer
and convey, by way of DONATION, unto the DONEE the property above,
described, to become effective upon the death of the DONOR; but in the
event that the DONEE should die before the DONOR, the present donation
shall be deemed rescinded and of no further force and effect.”
(Sample of Donation Inter Vivos)

Let us say here that Mamerta is widow. She then executed a Donation
Inter vivos in favor of her children. By virtue of said deed, the OCT was
 Page 20 of 20

transferred in the name of the 3 children. Mamerta however retained the

owner’s copy, still occupied the property, and pay the realty taxes. During
the lifetime of Mamerta, she filed a case in court to have the deed of
donation be declared void as it does not conform to the formalities set by
law with respect to the execution of a will as the said donation is
supposed to be a Donation Mortis causa. Aside from that, she likewise
requested for the revocation of the donation on account of ingratitude of
her children. Now, what do you see in this Deed of Donation?

In determining whether a deed of donation is a mortis causa or donation

NA
inter vivos, the real nature of a deed is to be ascertained by both its
language and the intention of the parties as demonstrated by the
circumstances attendant upon its execution. When the owner retains the
copy of the owner’s title, continues treating the property as his/her own,

SA
retains possession of the property, enjoy its fruits and otherwise exercise
the rights of dominion, and still pays the property taxes as they fell due,
that is not donation inter vivos.

IO
Let us take a look at this provision:

-S
“Dapat maalaman ni Crispulo Cuevas na samantalang ako ay nabubuhay,
and lupa na ipinagkakaloob ko sa kaniya ay ako pa rin and patuloy na
AN
mamomosecion, makapagparatrabaho, makikinabang at ang iba pang
karapatan sa pagmamayari ay sa akin pa rin hanggang hindo ko
binabawian ny buhay ng Maykapal at ito naman ay hindi ko nga iya-alis
OJ

pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.”

(will not take away because I reserve it for him when I die.)
VI

On the deed there is likewise a provision which states:

(1) the donee has duly read all the contents of this donation;
(2) that he 'shall fully respect all its terms'; and
A

(3) that 'for the act of benevolence' he is expressing his gratitude

RV

The deed however does not show any word of acceptance from the done.
NE

Here, the decisive proof that the present donation is operative inter vivos
lies in the final phrase to the effect that the donor will not dispose or take
away ("hindi ko nga iya-alis" in the original) the land "because I am
MI

reserving it to him upon my death." By these words the donor expressly

renounced the right to freely dispose of the property in favor of another (a
right essential to full ownership) and manifested the irrevocability of the
conveyance of the naked title to the property in favor of the donee.

The fact that the deed merely recites that (1) the donee has duly read all
the contents of this donation; (2) that he 'shall fully respect all its terms';
and (3) that 'for the act of benevolence' he is expressing his gratitude is
enough acceptance. To respect the terms of the donation, and at the same
 Page 21 of 21

time express gratitude for the donor's benevolence, constitutes sufficient

acceptance, If the donee did not accept, what had he to be grateful about?

ROMARICO G. VITUG vs CA et., al, G.R. No. 82027 March 29, 1990

Facts:
Dolores Vitug died with 2 wills. During the probate proceedings, the
husband filed a motion to be authorized to sell shares of stocks and real
properties belonging to the estate to get reimbursement of the payments
he made for the estate taxes. The money he used was taken from a joint

NA
savings account they both owned by the deceased wife. This motion was
opposed on the ground that the money used in paying the estate taxes
were conjugal property hence there was no need for reimbursement. The
husband insisted that it is his personal property already because there

SA
was a survivorship agreement between him and his deceased wife, which
was approved by the bank, that in case of death of either or any of them,
the funds shall be payable and withdrawable by the survivor.

IO
Query:

-S
1. Can you consider that agreement as disposition mortis causa?
Ans: NO, because the bequest or device must pertain to the testator.
2. Can you consider that as disposition inter vivos?
AN
No, because it was to take effect after the death of one party
3. Can you consider that as a waiver? – no, because waiver presupposes
one who is still alive.
OJ

4. Is the agreement valid, and under what provision? – Yes, Under Article
2010 of the Code:
VI

SC said:
“ART. 2010. By an aleatory contract, one of the parties or both reciprocally
bind themselves to give or to do something in consideration of what the
A

other shall give or do upon the happening of an event which is uncertain,

RV

or which is to occur at an indeterminate time.”

Under the aforequoted provision, the fulfillment of an aleatory contract

NE

depends on either the happening of an event which is (1) "uncertain," (2)

"which is to occur at an indeterminate time." A survivorship agreement,
the sale of a sweepstake ticket, a transaction stipulating on the value of
MI

currency, and insurance have been held to fall under the first category,
while a contract for life annuity or pension under Article 2021, et
sequentia, has been categorized under the second. In either case, the
element of risk is present. In the case at bar, the risk was the death of one
party and survivorship of the other.”

The SC further stated:

“But although the survivorship agreement is per se not contrary to law its
 Page 22 of 22

operation or effect may be violative of the law. For instance, if it be shown

in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled upon such
grounds. No such vice has been imputed and established against the
agreement involved in this case.”

In short, the property should not be included anymore in the estate of Mrs.
Vitug, it being that it has already become the personal property of Mr.
Vitug by virtue of the survivorship agreement which partakes of an

NA
aleatory contract under Art. 2010 of the NCC.

------END-------

SA
IO
-S
AN
OJ
VI
A
RV
NE
MI