Midterms Recitation_succession.docx

SUCCESSION RECITATION QUESTIONS

MIDTERMS S/Y 2018-2019

DAY 1 QUESTIONS: Q: A:

What must the instrumental witnesses say in the attestation clause? a. The number of pages used upon which the will is written; b. That the testator signed the will and every page thereof in the presence of instrumental witnesses; and c. That the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. Q: If the attestation clause did not say that the witnesses signed in the presence of testator and one another, is the attestation clause valid? A: The attestation clause is void unless in some other parts of the will, such a statement is made. In no case should evidence aliunde be allowed to prove this even if there are witnesses who can testify in the court as to this fact, their testimony should be excluded. This is because Artricle 809 refers only to “defects and imperfections in the form of attestation or in the language used therein. (Testate estate of Paula Toray) Q: A:

What do you understand about doctrine of liberal interpretation? Does it refer to the imperfections contain in the provisions of the will or attestation clause? In the absence of bad faith, forgery or fraud or undue and improper pressure or influence, defects and imperfections in the form of 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 5.(Article 809 NCC)

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If the attestation clause is not signed at the bottom by the witnesses, is the will valid? will it affect the validity of the will? The will is void since omission negates the participation of said witnesses. (InRe Testate Vicente Cagro)

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What are the essential characteristics of a will? a. The making of a will is statutory (Art. 783) b. It is a unilateral act c. It is a solemn or formal act (Art. 783) d. There must be animus testandi e. The testator must be capacitated to make a will. (Arts. 796-798) f. The will is strictly personal act. (Art. 784) g. It is effective mortis causa (Art. 777) h. It is essentially revocable or ambulatory. (Art. 828) i. It is free from vitiated consent. (Art. 839) j. It is an individual act. (Arts. 818 and 819) k. It disposes of the testator’s estate

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You say that a will is a unilateral act of the testator. Can you explain what does that statement mean? A: This means that no acceptance by the transferee is needed while the testator is still valid; any acceptance made prematurely is useless.

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Recite the formalities required of a Holographic Will. 1. The language must be known to the testator. 2. The will must be entirely written in the hand of the testator. 3. The will must be dated.  In case of revision, the later date should be preferred  No date-null and void (date is a mandatory requisite)  Date must be handwritten  Date must be complete  Incorrect date does not invalidate the will s long as it was made in good faith (no appearance of fraud, bad faith and undue influence) 4. The will must be signed by the testator  Full or customary signature/habitual 5. There must be animus testandi  Letter is all right as long as the intent to leave a will is clear  Letter which contain testamentary disposition is not allowed  What about a notarial will? Is it required that notarial will be dated? No, it is not necessary. The date to be considered is the date of the acknowledgement before a notary public. Suppose the notarial will is opposed on the ground that the testator is insane at the time of the making of the will, the testator is insane? When was that if there is no date? The date is immaterial. The attesting or subscribing witnesses’ testimony as to the mental condition of the testator should be given great weight. The date to be considered is the date of the acknowledgement before the notary public. What is the purpose of the attestation clause? The purposes of the attestation clause are: 1. To preserve in permanent form a record of the facts attending the execution of the will so that in case of failure of the subscribing or any other casualty, they may still be proved. 2. To render available proof that there has been compliance with the statutory requisites for the execution of the will 3. To minimize the commission of fraud and undue influence. (It will be very hard for the three witnesses to collude  For purposes of evidence  A record of the facts attending the making of the will  If there are questions of the requisites of a will, can be through revisiting the attestation clause  Not everything required in the making of the will. Only those which that will defeat the integrity of the will  Repository/record

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If in a holographic will, the testator merely put the date, December 2015, is that a valid Holographic Will? Does it meet the requirement that a Holographic will must be entirely written, signed and dated entirely in the hands of the testator? Yes, the will is valid. As a general rule, the date in the holographic will should also include the day, month and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established, the date “December 2015” is a substantial compliance of Article 810. Can a notary public before whom the will shall be acknowledged be one of the instrumental witnesses? The notary public before whom the will is acknowledged cannot be one of the three witnesses to said will, in view of the absurdity of one person acknowledging something before himself. (Cruz v. Villasor) If A is indebted to B and after a year he died without paying the debt, shall the children of B be held liable to pay the obligation of A to B? Yes, the heir may inherit obligations which are transmissible or not extinguished by death but only up to the extent of the value of the inheritance. (Nakar v. Vistal) Can be answered by using the definition of Succession Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or others either by his will or by operation of law.  What A transmitted to his children was obligation to pay his debt. (An obligation not extinguished by death)  This heirs of A must pay B because they inherited even the obligation of his father Supposing that the father died bankrupt and the children are all millionaires, shall the children pay B? Not required to pay B. Article 774 states that obligations shall be inherited up to the value of the inheritance only. The children were not obliged to pay B since they did not inherit from their father who at the time of his death was bankrupt.  Only up to the extent of the value of the inheritance.  Before heirs inherit, all charges of the estate shall be settled first.  In reality do not go directly to the children, you file a claim against the estate (a juridical person). You can sue the estate in court. When the testator T made a Will in 2000, he has 5 cars whom he bequeathed to A. When T died in 2015, he had 10 cars. Shall A be entitled to the 10 cars? Assuming the intention is not manifest in the will? A can get only 5 cars. The other 5 cars are after-acquired properties or properties acquired after the making of the will. Supposing that T has children A, B & C, and he instituted them as universal heirs. ½ to A, ¼ to B and ¼ to C. In 2000, the estate of T is 6 million. When he died in 2015, his 3

SUCCESSION RECITATION QUESTIONS

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estate is now 12 million, How much shall each of the children be entitled to. Afteracquired property of 6 million. Shall they be entitled to the 6 million after-acquired properties. Article 793 states that, “Property acquired after the making of the will shall only pass thereby (with the will) as if the testator had possessed it at the making of the will, should it expressly appear by the will that such was the intention” applies only to devisees and legatees. ABC are instituted heirs so after-acquired properties will be distributed in the same ratio.  The provisions about “after-acquired” properties apply only to devisees and legacies not to instituted heirs.  Instituted heirs are entitled to everything that is left at the time of the testator’s death or at the time the succession opens.  Legacies and Devises are required to be in a will.

DAY 2 QUESTIONS: Q: A died with a will. He was survived by his children B, C & D. Immediately after his death, his eldest son B, sold his entire right to the inheritance to X. Was the sale valid? A: Q: A:

Assuming the inheritance has yet to be determined, is the sale valid?

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Assuming each child has 50K and after the partition, the shares are given to each. D repudiated his share, under Right of Accretion, his share will be accrue to B & C equally (50 K will be divided between B & C). When B sold his inheritance to X, the sale was valid because succession opens immediately upon the death of the decedent, his 50K must go to X, what about the 25K from B, where will it go? To B or to X? At the time when the succession opens, the 25 K is not yet owned by B

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What is a notarial will?

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What do you understand about a 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. (Article 783 NCC)

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Is the making of a will an inherent right of a person? No. It is a statutory right. A right given or conferred by law. The consequence is that the making of a will is subordinated to both the law and public policy.

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Does this mean that without the law, the person cannot make the will? Or it’s just right to say that the law regulates the disposition of his estate?

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SUCCESSION RECITATION QUESTIONS Q:

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Do you think if the Civil Code does not provide for the provision about the will, the person can still make a will. The wish of the person is subordinated by law.

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What is a notarial will? An ordinary will which complies with the requirements of Arts. 804 to 806.

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If a testator makes a will entirely written in his hand and he went to a notary public and have it acknowledged before the notary public, is it a notarial will? These are just two of the requirements of a notarial will. A notarial will is a will which complies with the requirements of Arts. 804 to 809.

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What makes a notarial will, notarial? Do you think that the essence of a notarial will is that it should be taken to the notary public and have it notarized? A notarial will is the one which complies with the requirements of 804 to 809. Taking the will to a notary public is only one of the requirements.  It is not correct to make so much emphasis that a notarial will be acknowledged before a notary public. What is ambiguity in a notarial will? There are two types of ambiguity: 1. Extrinsic/Patent ambiguity 2. Intrinsic/Intrinsic Ambiguity  Ambiguities are only discovered during the execution of the will

Q: How are these ambiguities manifested in the will? Can you give us an illustration of that? Q:

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If one or two of the pages of a notarial will did not bear the signatures of subscribing witness on the left margin, is the will valid? (Icasiano v. Icasiano) Why did the Court in Icasiano say that the lack of signature in one of the pages is a substantial compliance? There is a substantial compliance there because there are other copies where it can be deciphered that the third page which did not contain the signature of one of the witnesses is a manifestation that the omission was not intentional and can be traced in some other pages. In that case of Icasiano, there was this impression of the notarial seal which shows that there was accidental lifting of the unsigned page. This is important because the compliance of every page being signed is a guard against substitution but the fact that there as impression of the notarial seal in one of the unsigned pages, the signature can be said to have been omitted unintentionally.  According to other authorities, if failure to comply with Arts. 804 to 806 cannot be cured by investigating the four corners of the will, the omission is fatal.  The will contained of two pages, one page was not signed, still there is substantial compliance because it is evident that there are only two pages. But if there is no trace at all that can help determine the compliance or noncompliance in some other pages, the omission is fatal.  Art. 809 refers to the language in the attestation clause. 5

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Is the notary public before whom the will is acknowledged be qualified as an instrumental witness? The notary public before whom the will is acknowledged cannot be one of the three witnesses to said will, in view of the absurdity of one person acknowledging something before himself. (Cruz v. Villasor)  He cannot acknowledge before himself.  You cannot split your personality as a witness at one time and as a notary public at another time

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If a testator who is a lawyer (you know how to read and write), put at the end of the will the crossbones and skull as his signature beside a one-eyed smiley? Is that a validly signed will?

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In the signing of the will of D, they were gathered in a room, the testator is at a table and the witnesses one by one come to the table and sign. When B was signing, A was looking outside the window, watching intently to people playing basketball outside. B was playing videogames while D was signing. C, while the others are signing, was smoking outside although the door is open. The testator while A, B, C were signing was lying down on the bed beside the table. Is the situation considered signing in the presence of one another?

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Assuming that while the witness C was smoking outside, the door was open, but there was a curtain hanging on the door? Is that still signing in the presence of one another?

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A is Saudi Arabia, he made a will there. In Saudi Arabia the law does not require three witnesses, only 1 witness is required. Can that will be probated in the Philippines?

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Does Article 17 apply only to a Filipino citizen performing certain acts abroad? When it comes to will, the specific provision is Art. 815 although Article 17 may also apply. When a Filipino is in another country, he is allowed to make a will in any form according to the formalities established by the country where such Filipino may be found. It is a reproduction of Article 17.

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If a will is executed by T in 2000 where it is required that the will be subscribed by three instrumental witnesses, assuming in 2010 that law is amended to allow to subscription of only one witness. If T dies in 2011, what law will govern? The law at the time of execution.

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What about if the law is amended that the children will inherit regardless of filiation? What law will govern?

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What are the matters which can be considered intrinsic in nature?

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Who can be witnesses to a will? 6

SUCCESSION RECITATION QUESTIONS

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A: Q:

If testator who made a will summoned her brothers who are permanent residents of US to be witness to the will, are they qualified?

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How is a will revoked?

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Can you give us an example of revocation by operation of law?

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If in the will, T stated that: “As I have not seen my favorite nephew for the past 10 years as he left for Iraq as part of UN peacekeeping force, I believed that he is now dead. I am therefore, revoking the legacy of 1 million in cash that I gave him in the will.” If it turned out that this nephew is still alive, is the revocation valid?

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If A executed 3 wills, the 2nd expressly revokes the 1st, the 3rd expressly revokes the 2nd , is there a revival of the 1st will? What is the reason why there is no revival of the 1 st will? Using Article 837? No. Article 837 provides for the answer. Article 837: If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. Only implied revocation of the 2nd will revives the 1st will.

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Say for example the testator made two wills, in the first, he made A his lone heir, in the second, he made B his lone heir, in the 3rd will, he expressly revoked the second. Will the first will be revoked now?

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What are the matters to be proved in the will? What are the purposes of probate of a will? Only the extrinsic validity such as capacity of testator, and the compliance with those requisites or solemnities which the law requires for the validity of the will. Testamentary Capacity (at least 18; sound mind) and Due Execution (formalities and absence any ground for disallowance)

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In the probate of a will of X, A, an illegitimate child of X, intervened in the proceeding. Will the court allow him to present evidence to prove his filiation? What are really the matters that can be decided in the probate of a will? Can the court allow him to present evidence of his filiation? As a general rule, probate proceedings should only be limited to the determination of the testamentary capacity of the testator and to the due execution of the will. However there are instances where proof of filiation may be allowed: 1. If it is essential to establish which of the two wills has been revoked (Barreto v.Barreto); and 2. It can be given to prove prima facie whether or not an oppositor or intervenor who claims to be related to the testator, can be allowed to intervene in the probate proceedings for the purpose of protecting his rights. (Reyes v. Ysip)

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If A is a subscribing witness to the will of E, can he receive the 1 million legacy given to him in the will made by E? It depends. Article 823 prohibits the receipt of the legacy or devise if the legatee or devisee is one of the three subscribing witnesses. However, if there are other witnesses aside from A, the legacy or devise is valid. In this case, the legatee or devisee who is also a subscribing witness can validly receive the 1 million as a legacy. Assuming that E insists in subscribing, can E makes the legacy to his daughter? It will again depend if E is one of the three subscribing witnesses. If E is one of the three subscribing witnesses, then the legacy to her daughter is void. But if there are three other

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SUCCESSION RECITATION QUESTIONS

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witnesses aside from E, the legacy to his daughter will be valid. This is because the prohibition in Article 823 also applies to the witness’ spouse, or parent, or child. Q:

What is the distinction between implied and express revocation? Implied revocation is the kind of revocation produced by operation of law when certain acts or events, take place after a will has been made, rendering void or useless either the whole will or certain testamentary dispositions therein. Express revocation or revocation by overt act takes place when a testator executes another will, codicil or writing or when the testator burn, tears, cancels, or obliterates the will with the intention of revoking it.

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