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TESTAMENTARY SUCCESSION: 1. WILLS - Coggle Diagram
TESTAMENTARY SUCCESSION:
1. WILLS
IN GENERAL
DEFINED: WILL
A will is an act whereby a person is permitted, with the formalities prescribed by law to
control to a certain degree the disposition of his estate
to take effect after his death. (Art. 783, CC)
KINDS OF WILLS
NOTARIAL WILL
an ordinary or attested will, which must comply with the requirements of the law [Arts. 804-808, CC]
HOLOGRAPHIC WILL
a will entirely written, dated and signed by the hand of the testator [Art. 810, CC]
HOLOGRAPHIC WILLS MAY BE MADE IN OR OUT OF THE PHILIPPINES
Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
CHARACTERISTICS OF WILLS
(BOTH NOTARIAL & ATTESTED)
PURELY PERSONAL
FREE & INTELLIGENT
(Art. 389)
SOLEMN OR FORMAL
REVOCABLE AND AMBULATORY
MORTIS CAUSA
INDIVIDUAL
EXECUTED WITH ANIMUS TESTANDI
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INDIVIDUAL
Prohibition against joint wills
TAKES EFFECT UPON TESTATOR'S DEATH
CAN BE REVOKED ANY TIME BEFORE TESTATOR'S DEATH
A will can be revoked at any time before the testator's death (Art. 828)
IF THE FORM IS DEFECTIVE, THE WILL IS VOID
MAKING A WILL IS NON-DELEGABLE
The making of a will is non-delegable and so is...
DESIGNATION OF HEIRS,
DEVISEES & LEGATEES
I still don't get the diff between these two:
Designation of Heirs vs Designation of Person/Institution falling under a class
DURATION/EFFICACY OF DESIGNATION
DETERMINATION OF PORTIONS, WHEN REFERRED TO BY NAME
WHAT MAY BE ENTRUSTED TO 3RD PERSONS
DESIGNATION OF PERSON/INSTITUTION FALLING UNDER A CLASS SPECIFIED BY TESTATOR
Designation of person/institution falling under a class specified by testator
MANNER OF DISTRIBUTION OF PROPERTY SPECIFIED BY TESTATOR
Manner of distribution of property specified by testator
TESTATOR MUST FIRST SPECIFY
CLASS
+
AMOUNT OF PROPERTY FOR PROPER DELEGATION
Testator must first specify the class AND the amount of property for proper delegation
RULES OF CONSTRUCTION & INTERPRETATION
TESTACY IS PREFERRED TO INTESTACY
Testacy is preferred to intestacy and the intent of the testator is paramount and must be given effect as far as legally possible.
EXTRINSIC EVIDENCE CAN BE CONSIDERED
There is no real difference in the prescribed solution for either latent or patent ambiguity. In either case, extrinsic evidence or evidence of external circumstances can be considered. Moreover, in either case, the oral declarations of the testator are excluded.
PATENT AMBIGUITY
A patent ambiguity is an uncertainty which appears on the face of the [instrument].
LATENT AMBIGUITY
Latent ambiguity is one which is not apparent on the face of the [instrument] but is disclosed by some fact collateral to it.
HOWEVER, ORAL DECLARATIONS OF THE TESTATOR ARE EXCLUDED
Why? Isn't the intent of the testator paramount? Wouldn't oral declarations of the testator indicate intent most of all? Why exclude this?
GOVERNING LAWS, IN GENERAL
FORMAL VALIDITY IS GOVERNED BY THE
LAW IN FORCE
AT THE TIME THE WILL WAS EXECUTED
(Art. 795, CC)
INTRINSIC VALIDITY IS GOVERNED BY THE NATIONAL LAW OF THE DECEDENT
AT THE TIME OF HIS DEATH
(Art. 16 and 2263)
ASPECTS OF THE WILL GOVERNED BY THE NATIONAL LAW OF THE DECEDENT:
ORDER OF SUCCESSION
AMOUNT OF SUCCESSIONAL RIGHTS
INTRINSIC VALIDITY OF
TESTAMENTARY PROVISIONS
CAPACITY TO SUCCEED
(Art. 16, CC)
TESTAMENTARY CAPACITY AND INTENT
TIME OF DETERMINING CAPACITY
CAPACITY TO MAKE WILLS IS DETERMINED AT THE TIME OF MAKING THE WILL
Capacity to make a will is determined as of the time of making thereof [Art. 798, CC].
SUPERVENING INCAPACITY DOES NOT INVALIDATE AN EFFECTIVE WILL
Supervening incapacity does not invalidate an effective will nor is the will of an incapable validated by a supervening of capacity [Art. 801, CC].
CONTRAPOSITIVELY, AN INVALID CONTRACT IS NOT VALIDATED BY SUPERVENING CAPACITY
REQUISITES FOR CAPACITY TO MAKE A WILL
TESTATOR MUST BE:
NOT EXPRESSLY PROHIBITED BY LAW TO MAKE A WILL
The testator must not be expressly prohibited by law to make a will [Art. 796, CC]
NOT UNDER 18
The testator must not be under 18 years of age [Art. 797, CC] “Year” shall be understood to be 12 calendar months [Sec. 31, Book 1, Administrative Code]
SOUND MIND
The testator must be of sound mind at the time of execution [Art. 798, CC]
TEST OF SOUNDNESS OF MIND
:
To be of sound mind,
TESTATOR MUST KNOW:
NATURE OF ESTATE
The nature of the estate to be disposed of;
PROPER OBJECTS OF HIS BOUNTY
The proper objects of his bounty;
CHARACTER OF TESTAMENTARY ACT
The character of the testamentary act [Art. 799, CC]
PRESUMPTION:
SOUND MIND IS PRESUMED
(Art. 800)
EXCEPTIONS TO SUCH PRESUMPTION
PUBLIC KNOWS HE'S INSANE 1 MONTH OR LESS BEFORE EXECUTION OF WILL
When the testator, one month or less before the execution of the will, was publicly known to be insane. [Art. 800, CC]
OR
WHEN TESTATOR EXECUTED WILL AFTER BEING PLACED UNDER GUARDIANSHIP OR ORDERED COMMITTED
When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity under Rules 93 and 101 of the Rules of Court, and before said order has been lifted. [Torres v. Lopez, G.R. No. L-25966 (1926); Balane]
What does "ordered committed" mean?
Based on the cases that use the phrase, "ordered committed" might mean committed to a mental institution. as in "ordered committed to Welfareville"
FORM
IN GENERAL
FORMAL REQUIREMENTS FOR WILLS IN GENERAL
APPLICABLE LAWS AS TO FORMAL VALIDITY
GOVERNING LAW AS TO PLACE OF EXECUTION OF WILL
IF TESTATOR IS FILIPINO
IF TESTATOR IS ALIEN
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IF PLACE OF EXECUTION IS IN PHILIPPINES
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IF PLACE OF EXECUTION IS OUTSIDE OF PHILIPPINES
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AS TO THE TIME, FORMAL VALIDITY IS GOVERNED BY THE LAW IN FORCE AT THE TIME THE WILL WAS EXECUTED
Formal validity is governed by the law in force at the time the will was executed [Art. 795, CC]
AS TO THE PLACE, FORMS AND SOLEMNITIES OF A WILL ARE GOVERNED BY THE LAW OF COUNTRY IN WHICH THE WILL WAS EXECUTED
As to the place, forms and solemnities of a will are governed by the law of the country in which the will was executed [Art. 17, CC]
But what about intrinsic validity?
FORMAL REQUISITES
WRITTEN
The will must be in writing.
LANGUAGE/DIALECT KNOWN TO TESTATOR
It must be in a language or dialect known to the testator
FORM OF
ATTESTED/NOTARIAL WILLS
FORMAL REQUIREMENTS FOR NOTARIAL WILLS
SUBSCRIBED AT THE END
1
ATTESTATION CLAUSE
4
MARGINAL SIGNATURES
1
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TEST OF PRESENCE
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EFFECT OF OMISSSIONS
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SUBSTANTIAL COMPLIANCE RULE REFERS ONLY TO THE FORM OF THE
ATTESTATION CLAUSE
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(REQUIREMENTS)
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SUBSCRIBED TO, AT THE END OF THE WILL
EITHER BY...
THE TESTATOR HIMSELF
OR
THE TESTATOR'S NAME WRITTEN BY A REPRESENTATIVE IN HIS PRESENCE + UNDER HIS EXPRESS DIRECTION
ATTESTED/NOTRIAL WILLS NEED NOT BE DATED
Unlike in holographic wills, there is no requirement that an attested will should be dated.
FORM OF
HOLOGRAPHIC WILLS
5
FORMAL REQUIREMENTS FOR HOLOGRAPHIC WILLS
WITNESSES REQUIRED FOR PROBATE
ADDITIONAL DISPOSITIONS
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AT LEAST 1 WITNESS WHO...
a.
KNOWS THE HANDWRITING & SIGNATURE OF THE TESTATOR
b.
EXPLICITLY DECLARES THAT SUCH HANDWRITING & SIGN IS THE TESTATOR'S
At least one witness who knows the handwriting and signature of the testator; explicitly declare that it is the testator’s
IF CONTESTED,
AT LEAST 3 OF SUCH WITNESSES
If contested – at least 3 of such witnesses
ABSENT A COMPETENT WITNESS,
EXPERT TESTIMONY MAY BE RESORTED TO
In the absence of a competent witness, expert testimony may be resorted to
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WRITTEN
(Art. 804, CC)
LANGUAGE KNOWN TO THE TESTATOR
(Art. 804, CC)
ENTIRELY WRITTEN, DATED, & SIGNED IN THE HAND OF THE TESTATOR HIMSELF
(Art. 810, CC)
FORM OF
JOINT WILLS
FORM OF
MUTUAL WILLS
FORM OF
RECIPROCAL WILLS
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MUTUAL WILLS
EXECUTED PURSUANT TO AGREEMENT OF 2 PERSONS
Executed pursuant to an agreement between two or more persons
JOINTLY EXECUTED BY THEM
Jointly executed by them
EITHER FOR RECIPROCAL BENEFIT OR FOR A THIRD PERSON
Either for their reciprocal benefit or for the benefit of a third person. This is prohibited under Article 818.
JOINT WILLS
A SINGLE TESTAMENTARY INSTRUMENT
A single testamentary instrument
CONTAINING WILLS OF TWO OR MORE PERSONS
Which contains the wills of two or more persons,
JOINTLY EXECUTED BY THEM
Jointly executed by them
EITHER FOR RECIPROCAL BENEFIT OR FOR BENEFIT OF THIRD PERSON
Either for their reciprocal benefit or for the benefit of a third person.
FILIPINOS CANNOT MAKE JOINT WILLS
Filipinos cannot make Joint Wills
Joint wills executed by Filipinos, whether in the Philippines or abroad, are prohibited.
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CODICILS
INCORPORATION BY REFERENCE
REVOCATION
5
REPUBLICATION AND REVIVAL
ALLOWANCE AND DISALLOWANCE OF WILLS
8
PROBATE REQUIREMENT
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REPUBLICATION
TAKES PLACE BY TESTATOR'S ACT
Takes place by an act of the testator
CORRECTS BOTH
EXTRINSIC & INTRINSIC DEFECTS
Corrects extrinsic and intrinsic defects
REVIVAL
TAKES PLACE BY OPERATION OF LAW
Takes place by operation of law
RESTORES A REVOKED WILL
Restores a revoked will
IF VOID AS TO FORM
(Art. 805, CC)
HOW TO REPUBLISH
EXECUTE NEW WILL
-
COPY OUT PROVISIONS FROM THE ORIGINAL VOID WILL
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IF VOID AS TO
NON-FORMAL DEFECT
PREVIOUSLY REVOKED
HOW TO REPUBLISH
EXECUTE NEW WILL/CODICIL
SIMPLY MAKE REFERENCES TO OLD WILL
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MODES OF REVOCATION
[Art. 830, CC]
IMPLICATION OF LAW
By implication of law
(e.g. preterition [Art. 854, CC];
legal separation [Art. 63, FC];
unworthiness to succeed [Art. 1032, CC], et al.); OR
EXECUTION OF WILL, CODICIL, OR OTHER WRITING (PARTIAL OR TOTAL)
By the execution of a will, codicil or other writing executed as provided in the case of wills (may be total or partial); OR
DESTROYING + INTENTION OF REVOKING
BY TESTATOR or REP IP & UED
By burning, tearing, canceling, 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.
REVOCABLE ANY TIME BEFORE DEATH
A will may be revoked by the testator at any time before his death [Art. 828, CC]
RIGHT OF REVOCATION
CANNOT BE WAIVED OR RESTRICTED
The right of revocation cannot be waived or restricted. [Art. 828, CC]
REVOCATION IN A SUBSEQUENT WILL SHALL TAKE EFFECT, EVEN IF SUCH LATTER WILL BECOMES INOPERATIVE
General Rule: 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. [Art. 832, CC]
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EVEN IF A HOLOGRAPHIC WILL WAS NOT INTENDED TO BE REVOKED, IT CAN NO LONGER BE PROVED
Note: Even if a holographic will was not intended to be revoked, unless a xerox copy exi[s]ts, it can no longer be proved.
UNLESS A PHOTOCOPY EXISTS
LAW GOVERNING REVOCATION
IF PLACE OF REVOCATION IS
IN THE PHILIPPINES
TESTATOR'S DOMICILE:
PHILIPPINES OR SOME OTHER COUNTRY
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IF PLACE OF REVOCATION IS
OUTSIDE OF THE PHILIPPINES
TESTATOR'S DOMICILE:
PH
(This situation is not governed by Art. 829)
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TESTATOR'S DOMICILE:
FOREIGN COUNTRY
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DOCUMENT/PAPER REFERRED TO MUST EXIST AT TIME OF EXECUTION OF WILL
The document or paper referred to in the will must be in existence at the time of the execution of the will.
WILL MUST CLEARLY DESCRIBE & IDENTIFY IT, STATING INTER ALIA # OF PAGES
The will must clearly describe and identify the same, stating among other things the number of pages thereof.
CLEAR AND SATISFACTORY PROOF IDENTIFYING IT AS THE DOCUMENT/PAPER REFERRED TO
It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
MUST BE SIGNED BY TESTATOR AND
WITNESSES ON EACH & EVERY PAGE,
EXCEPT
FOR VOLUMINOUS BOOKS OF ACCOUNT OR INVENTORIES
It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.
[Art. 827, CC]
INCORPORATION BY REFERENCE IS NOT AVAILABLE TO HOLOGRAPHIC WILLS
Note: Not available to holographic wills.
DEFINITION OF CODICIL
SUPPLEMENT
It is a supplement or addition to a will
MADE AFTER EXECUTION
made after the execution of a will
ANNEXED AS PART OF WILL
and annexed to be taken as a part of the will
ANY DISPOSITION IN ORIGINAL WILL IS EXPLAINED, ADDED TO, OR ALTERED
by which any disposition made in the original will is explained, added to, or altered.
EXECUTED TO BE EFFECTIVE, AS IF A WILL
in order that it may be effective, it shall be executed as in the case of a will.
[Arts. 825-826, CC]
MUST TAKE FORM OF A WILL;
MAY BE NOTARIAL OR HOLOGRAPHIC
Note: A codicil must be in the form of a will – can have a notarial codicil attached to a holographic will, and a holographic codicil attached to a notarial will.
What are the distinctions between these terms?
If any?
ATTESTED
SUBSCRIBED
SIGNED