Wills and Succession

Notes from last semester

Conditions for the transmission of successional rights:

1. That indeed, there has been death

2. That the rights or properties are indeed transmissible or descendible

3. That the transferee is still alive (no predecease), willing (no repudiation, and is capacitated to inherit

When may a person’s estate be opened for succession in cases involving presumptive death?

It depends on whether there is ordinary or extraordinary absence.

In case or ordinary absence, the estate may be opened for succession at the end of ten years from the time of absence. However, in case he disappeared at the age of seventy-five (75), he shall be presumed dead for the purpose of opening his succession at the end of five years from the time of disappearance

In case of extraordinary or qualified absence, a person shall be presumed dead for all purposes including the division of the estate among the heirs after four years.

What is the effect of the absentee’s return or reappearance?

If the absentee appears, or his existence is proved, he shall recover his property in the condition it may be found, and the price of any property which may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent.

Essential elements and characteristics of a will (S³E²AT²DUF)

1. Statutory

2. Solemn or formal

3. Strictly a personal act

4. Effective mortis causa

5. Essentially revocable

6. An individual act

7. There must be animus testandi

8. Testator must be capacitated to make a will

9. Disposes of the testator’s estate

10. Unilateral

11. Free from vitiated consent

Requirements of a NOTARIAL or ordinary will (NAAWrLaSSS)

1. All pages shall be Numbered correlatively in letters placed on the upper part of each page

2. There must be an Attestation clause

3. Acknowledgment before a notary public

4. The will must be in Writing

5. It must be executed in a Language or dialect known to the testator

6. It must be Subscribed at the end of every page thereof by the testator himself or by the testator’s name written by another person in the presence and by the express direction of the testator

7. It must be attested and Subscribed by three or more credible witnesses in the presence of the testator and of one another

8. The testator or the person requested by him to write his name, and the instrumental witnesses of the will shall Sign each and every page thereof, except the last, on the left margin

What shall the Attestation Clause state?

1. The number of pages used upon which the will is written

2. That the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the instrumental witnesses

3. That the instrumental witnesses witnessed and signed the will in the presence of the testator and of one another

Rules when the testator is deaf or deaf-mute:

1. If he cannot read the will, two persons must communicate it to him

2. The two persons designated need not be the attesting witnesses

Rule if the testator is blind

1. The will shall be read to the testator twice: once by one of the subscribing witnesses and once by the notary public.

Formalities required for a Holographic Will (WrLaSAAD)

1. The will must be entirely Written by the hand of the testator himself

2. The Language must be known to the testator

3. The will must be Signed by the testator himself

4. There must be Animus Testandi

5. It must executed at the time that holographic will are Allowed

6. The will must be Dated

Requisites for the validity of documents incorporated by reference (SIDE)

1. It must be Signed by the testator

2. It must be Identified by clear and satisfactory proof as the document or paper referred to therein

3. The will must clearly Describe and identify the same, stating among other things the number of pages thereof

4. The document or paper referred to in the will must be in Existence at the time of the execution of the will

Determination of the Formalities required in making a will

1. Filipino Abroad (815)

a. The place of execution

b. Philippine laws

2. Foreigner in a foreign country (816)

a. The place of nationality (lex nationalii)

b. The place of domicile or residence

c. Philippine law

d. The place of execution

3. Foreigner in the Philippines (817)

a. The law of the place of his nationality (lex nationalii)

b. The law of the Philippines

*Joint wills executed by foreigners abroad and valid in accordance with Art. 816 is considered valid in the Philippines.

What is the Principle of Instanter?

The revocatory clause of a second will takes effect immediately or at the instant the revoking will is made. (Art 837)

Grounds for disallowance of a will (FIFFIM)

1. If the Formalities required have not been complied with

2. If the testator was Insane at the time of its execution, or otherwise incapable of making a will at the time of execution

3. If it was executed through Force or under duress, or the influence of fear or threat (connote the idea of coercion, mental or physical)

4. It the signature of the testator is procured by Fraud (the use of insidious machinations to convince a person to do what he would not ordinarily do)

5. If it was procured by undue and improper pressure and Influence, on the part of the beneficiary or some other person (coercion by virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not have done)

6. If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto

Requisites for Preterition

1. There is a total omission in the inheritance

2. The omission must be of a compulsory heir

3. The compulsory heir omitted must be in the direct line