Bar Q and A #36

1.) 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 straight forward 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. 1. Was Erica preterited? 2. What other defects of the will, if any, can cause denial of probate? 3. Was the disinheritance valid?

1. No. Erica was not preterited. Art. 854 of the Civil Code provides that only compulsory heirs in the direct line can be preterited.

2. The other defects of the will that can cause its denial are as follows: (a) Atty. Zorba, the one who prepared the will was one of the three witnesses, violating the three- witnesses rule; (b) no marginal signature at the last page; (c) the attestation did not state the number of pages upon which the will is written; and, (d) no pagination appearing correctively in letters on the upper part of the three pages. (Azuela v. CA,
G.R. No. 122880, April 12, 2006 and cited cases therein, Art. 805 and 806)
3. Yes, the disinheritance was valid. When a child or descendant leads a dishonorable or disgraceful life, like running off with a married man, there is sufficient cause for disinheritance. (Art. 919, par. 7)

2.) Mr. Cruz, widower, has three legitimate children, A, B and C. He executed a Will instituting as his heirs to his estate of One Million (P1,000,000.00) Pesos his two children A and B, and his friend F. 1. Upon his death, how should Mr. Cruz's estate be divided? Explain. 2. In the preceding question, suppose Mr. Cruz instituted his two children A and B as his heirs in his Will, but gave a legacy of P 100,000.00 to his friend F. How should the estate of Mr. Cruz be divided upon his death? Explain.

1. Assuming that the institution of A, B and F were to the entire estate, there was preterition of C since C is a compulsory heir in the direct line. The preterition will result in the total annulment of the institution of heirs. Therefore, the institution of A, B and F will be set aside and Mr. Cruz’s estate will be divided, as in intestacy, equally among A, B and C as follows: A - P333,333.33; B - P333.333.33; and C - P333,333.33.

2. On the same assumption as letter (a), there was preterition of C. Therefore, the institution of A and B is annulled but the legacy of P100.000.00 to F shall be respected for not being inofficious. Therefore, the remainder of P900.000.00 will be divided equally among A, B and C.

3.) H died leaving a last will and testament wherein it is stated that he was legally married to W by whom he had two legitimate children A and B. H devised to his said forced heirs the entire estate except the free portion which he gave to X who was living with him at the time of his death. In said will, he explained that he had been estranged from his wife W for more than 20 years and he has been living with X as man and wife since his separation from his legitimate family. In the probate proceedings, X asked for the issuance of letters testamentary in accordance with the will wherein she is named sole executor. This was opposed by W and her children. 1. Should the will be admitted in said probate proceedings? 2. Is the said devise to X valid? 3. Was it proper for the trial court to consider the intrinsic validity of the provisions of said will? Explain your answers.

1. Yes, the will may be probated if executed according to the formalities prescribed by law.

2. No, the institution giving X the free portion is not valid, because the prohibitions under Art. 739 of the Civil Code on donations also apply to testamentary dispositions (Art. 1028), among donations which are considered void are those made between persons who were guilty of adultery or concubinage at the time of the donation.

3. As a general rule, the will should be admitted in probate proceedings if all the necessary requirements for its extrinsic validity have been met and the court should not consider the intrinsic validity of the provisions of said will. However, the exception arises when the will in effect contains only one testamentary disposition. In effect, the only testamentary disposition under the will is the giving of the free portion to X, since legitimes are provided by law. Hence, the trial court may consider the intrinsic validity of the provisions of said will. (Nuguid v. Nuguid,
G.R. No. L-23445, June 23, 1966; Nepomuceno v. CA, G.R. L-62952, October 9, 1985)

4.) Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa and Benjamin to be witnesses. During the day of signing of her will, Clara fell down the stairs and broke her arms. Coming from the hospital, Clara insisted on signing her will by thumb mark and said that she can sign her full name later. While the will was being signed, Roberta experienced a stomach ache and kept going to the restroom for long periods of time. Hannah, while waiting for her turn to sign the will, was reading the 7th Harry Potter book on the couch, beside the table on which everyone was signing. Benjamin, aside from witnessing the will, also offered to notarize it. A week after, Clara was run over by a drunk driver while crossing the street in Greenbelt. May the will of Clara be admitted to probate? Give your reasons briefly.

No, the probate should be denied. The requirement that the testator and at least three
(3) witnesses must sign all in the “presence” of one another was not complied with. Benjamin who notarized the will is disqualified as a witness, hence he cannot be counted as one of the three witnesses. (Cruz v. Villasor, G.R. No. L- 32213, November 26, 1973) The testatrix and the other witnesses signed the will not in the presence of Roberta because she was in the restroom for extended periods of time. Inside the restroom, Roberta could not have possibly seen the testatrix and the other witnesses sign the will by merely casting her eyes in the proper direction. (Jaboneta v. Gustilo, G.R. No. 1641, January 19, 1906); (Nera v. Rimando, G.R. No. L- 5971, February 27, 1911) Therefore, the testatrix signed the will in the presence of only two witnesses, and only two witnesses signed the will in the presence of the testatrix and of one another.

It is to be noted, however, that the thumb mark intended by the testator to be his signature in executing his last will and testament is valid. (Payad v. Tolentino, G.R. No. 42258, September 5, 1936; Matias v. Salud, G.R. No. L-10751, June 23, 1958) The problem, however, states that Clara “said that she can sign her full name later;” Hence, she did not consider her thumb mark as her “complete” signature, and intended further action on her part. The testatrix and the other witness signed the will in the presence of Hannah, because she was aware of her function and role as witness and was in a position to see the testatrix and the other witnesses sign by merely casting her eyes in the proper direction.

5.) Johnny, with no known living relatives, executed a notarial will giving all his estate to his sweetheart. One day, he had a serious altercation with his sweetheart. A few days later, he was introduced to a charming lady who later became a dear friend. Soon after, he executed a holographic will expressly revoking the notarial will and so designating his new friend as sole heir. One day when he was clearing up his desk, Johnny mistakenly burned, along with other papers, the only copy of his holographic will. His business associate, Eduardo knew well the contents of the will which was shown to him by Johnny the day it was executed. A few days after the burning incident, Johnny died. Both wills were sought to be probated in two separate petitions. Will either or both petitions prosper?

The probate of the notarial shall prosper. The holographic will cannot be admitted to probate because a holographic will can only be probated upon evidence of the will itself unless there is a photographic copy. But since the holographic will was lost and there was no other copy, it cannot be probated. Therefore, the notarial will shall be admitted to probate because there is no revoking will.

In the case of Gan vs. Yap (104 Phil 509), the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen or read such will. The will itself must be presented otherwise it shall produce no effect. The law regards the document itself as material proof of authenticity.

6.) Mr. Reyes executed a will completely valid as to form. A week later, however, he executed another will which expressly revoked his first will, which he tore his first will to pieces. Upon the death of Mr. Reyes, his second will was presented for probate by his heirs, but it was denied probate due to formal defects. Assuming that a copy of the first will is available, may it now be admitted to probate and given effect? Why?

Yes, the first will may be admitted to probate and given effect. When the testator tore first will, he was under the mistaken belief that the second will was perfectly valid and he would not have destroyed the first will had he known that the second will is not valid. The revocation by destruction therefore is dependent on the validity of the second will. Since it turned out that the second will was invalid, the tearing of the first will did not produce the effect of revocation. This is known as the doctrine of dependent relative revocation. (Molo v. Molo, G.R. No. L-2538, September 21, 1951)

7.) In 1986, Jennifer and Brad were madly in love. In 1989, because a certain Picasso painting reminded Brad of her, Jennifer acquired it and placed it in his bedroom. In 1990, Brad and Jennifer broke up. While Brad was mending his broken heart, he met Angie and fell in love. Because the Picasso painting reminded Angie of him, Brad, in his will, bequeathed the painting to Angie. Brad died in 1995. Saddened by Brad's death, Jennifer asked for the Picasso painting as a remembrance of him. Angie refused and claimed that Brad, in his will, bequeathed the painting to her. Is Angie correct? Why or why not?

No, Angie is not correct. The Picasso painting is not given or donated by Jennifer to Brad. She merely “placed it in his bedroom.” Hence, she is still the owner of the painting. Not being the owner of the Picasso painting, Brad cannot validly bequeath the same to Angie. (Art. 930) Even assuming that the painting was impliedly given or donated by Jennifer to Brad, the donation is nevertheless void for not being in writing. The Picasso painting must be worth more that 5,000 pesos. Under Art. 748, the donation and acceptance of a movable worth more than 5,000 pesos must be in writing, otherwise the donation is void. Jennifer remained the owner of the Picasso painting and Brad could not have validly disposed of said painting in favor of Angie in his will.

8.) Don died after executing a Last Will and Testament leaving his estate valued at P12 Million to his common-law wife Roshelle. He is survived by his brother Ronie and his half- sister Michelle. 1. Was Don's testamentary disposition of his estate in accordance with the law on succession? Whether you agree or not, explain your answer. Explain. 2. If Don failed to execute a will during his lifetime, as his lawyer, how will you distribute his estate? Explain. 3. Assuming he died intestate survived by his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will you distribute his estate? Explain. 4. Assuming further he died intestate, survived by his father Juan, his brother Ronie, his half-sister Michelle, and his legitimate son Jayson, how will you distribute his estate? Explain.

1. Yes, Don's testamentary disposition of his estate is in accordance with the law on succession. Don has no compulsory heirs not having ascendants, descendants nor a spouse. (Art. 887) Brothers and sisters are not compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise incapacitated to inherit from him. A common-law wife is not incapacitated under the law, as Don is not married to anyone.

2. After paying the legal obligations of the estate, I will give Ronie, as full-blood brother of Don, 2/3 of the net estate, twice the share of Michelle, the half-sister who shall receive 1/3. Roshelle will not receive anything as she is not a legal heir. (Art.1006)

3. Jayson will be entitled to the entire P12 Million as the brother and sister will be excluded by a legitimate son of the decedent. This follows the principle of proximity, where "the nearer excludes the farther."

4. Jayson will still be entitled to the entire P12 Million as the father, brother and sister will be excluded by a legitimate son of the decedent. (Art. 887) This follows the principle that the descendants exclude the ascendants from inheritance.

9.) Mario executed his last will and testament where he acknowledges the child being conceived by his live-in partner Josie as his own child; and that his house and lot in Baguio City be given to his unborn conceived child. Are the acknowledgment and the donation mortis causa valid? Why?

Yes, the acknowledgment is considered valid because a will (although not required to be filed by the notary public) may still constitute a document, which contains an admission of illegitimate filiation. The recognition of an illegitimate child does not lose its legal effect even though the will wherein it was made should be revoked. (Art. 834) This provision by itself warrants a conclusion that a will may be considered as proof of filiation. The donation mortis causa may be considered valid because although unborn, a fetus has a presumptive personality for all purposes favorable to it provided it be born under the conditions specified in Art. 41.

10.) Alfonso, a bachelor without any descendant or ascendant, wrote a last will and testament in which he devised." all the properties of which I may be possessed at the time of my death" to his favorite brother Manuel. At the time he wrote the will, he owned only one parcel of land. But by the time he died, he owned twenty parcels of land. His other brothers and sisters insist that his will should pass only the parcel of land he owned at the time it was written, and did not cover his properties acquired, which should be by intestate succession. Manuel claims otherwise. Who is correct? Explain.

Manuel is correct because property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (Art. 793) Since Alfonso's intention to devise all properties he owned at the time of his death expressly appears on the will, then all the 20 parcels of land are included in the devise.