“Death is a paradoxical part of life. Everyone dies”
The Biblical book of Ecclesiastes says “[T]o everything there is a season, and a time to every purpose under the heaven: a time to be born, and a time to die; … a time to mourn, and a time to dance… Then shall the dust return to the earth as it was: and the spirit shall return unto God who gave it.”
Death is a paradoxical part of life. Everyone dies.
While life’s acquisitions and possessions cannot be brought to the afterlife, the law has treated the property, rights and obligations of the deceased as transmissible “to another or others either by his will or by operation of law” (Article 774, Civil Code of Philippines).
To succeed “means to substitute, to subrogate, or to put one person in place of another” (Arturo Tolentino, Succession, citing 5 Manresa 202).
Understood in this sense, it is equivalent to the substitution of a deceased person by a living person in all the transmissible property and juridical relations which the former had in life (Tolentino, Succession citing 6 Sanchez Roman 12).
Inheritance refers to the objective element of succession, to the mass or totality of the patrimony of a deceased person (Tolentino, Succession citing 6 Sanchez Roman 12).
The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death (Article 776).
“Whatever terminology is used by the law… it is clear that the moment of death is the determining point when the heirs acquire a definite right to the inheritance…” (Tolentino, Succession, citing Morales v. Yanes).
The right vests “even before the judicial declaration of their being heirs in the testate or intestate proceedings” (Tolentino, Succession, citing Bonilla v. Barcena).
Succession may be: (1) testamentary; (2) legal or intestate; or (3) mixed (Article 778).
Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law (Article 779).
“When, however, there is no valid testament expressing the decedent’s will, then his property must be distributed according to the provisions of the law on intestate or legal succession. These provisions [on intestate succession] will also take effect, even in the presence of a will, if such will does not validly dispose of all the property of the deceased” (Tolentino, Succession).
“As to the part validly disposed of [by will], there is testamentary succession; but as to the part not validly disposed of, or to which no heir is designated by the testator, there is legal or intestate succession. This is called as mixed succession” (Tolentino, Succession).
“The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person…” (Article 784).
In other words, only the testator can make his will and no one else, as it is intended to control to a certain degree the disposition of his estate which will take effect after his death (see Article 783).
“It is to be noted that it is the making of the disposition, the expression of the will of the testator, that is not the subject of delegation.”
However, the physical and mechanical drafting of the will may be done by a third person, inasmuch as such an act does not constitute the delegation of the will or disposition (Tolentino, Succession).
However, it is the author’s view that the mechanical drafting of a holographic will cannot be delegated to a third person.
A holographic will is one executed by the testator himself, writing, dating, and signing it by his own hand, without the attestation of any third person (Tolentino, Succession, citing 4 Castan 334).
An heir is called to succession either by will or by operation of law (Article 782).
“[A]nyone who succeeds to the whole or to a fraction of the inheritance… is an heir, whether he succeeds by virtue of a will or intestacy. In a sense, he is a continuation of the personality of the deceased” (Tolentino, Succession).
A legatee is one who is given a gift of personal property by will; and a devisee is one to whom real property is given by will.
There is a devisee or legatee only in testamentary succession.
If the person is given by will both personal and real property, he is called a “devisee and legatee” (Tolentino, Succession; see Article 782).
“[T]he testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied” (Article 786).
The third person entrusted to make the distribution, to the extent of choosing the persons, institutions, or establishments to which the property or money will be given or applied, does not make any disposition, but simply carries out details in the execution of the testamentary disposition made by the testator himself in his will (Tolentino, Succession).
For example, a testator may leave P50,000 for relief to persons afflicted with infantile paralysis, and designates a third person to make the distribution of said amount (Tolentino, Succession).
Similarly, a testator who is a member of Rotary International may leave $50,000 for the latter’s Polio Eradication program but may opt to designate RI to carry out its implementation.
All persons who are not expressly prohibited by law may make a will (Article 796).
The word “person” means only natural persons.
Only creditors attend the obsequies of corporations; they never leave orphans or widows to mourn at their funerals and probate courts have no jurisdiction over their properties (Tolentino, Succession, citing Rood, p. 81).
Persons of either sex under 18 years of age cannot make a will (Article 797).
To make a will it is essential that the testator be of sound mind at the time of its execution (Article 798).
“It shall be sufficient if the testator… at the time of making the will know[s] the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act” (Article 799).
The soundness of the mind of the testator must be determined in relation to the time of the execution of the will (Tolentino, Succession, citing 1 Alexander 475-477; Thompson p. 81).
The nullification of the will executed when the testator was of unsound mind is not cured by the fact that the testator later recovers reason and fails to revoke his will (Tolentino, Succession).
Every will must be in writing and executed in a language or dialect known to the testator (Article 804).
Our present Code permits the execution of two kinds of wills: (1) the ordinary or attested will; and (2) the holographic or handwritten will (Tolentino, Succession).
Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person (Article 818).
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested to and subscribed by three or more credible witnesses in the presence of the testator and of one another (Article 805).
The ordinary or attested will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will (see Article 806).
This is to safeguard the secrecy of its contents “so that the testator will not be the object of importunities or pressure to change his will” (Tolentino, Succession).
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court (Article 838).
There are two kinds of probate proceedings recognized by our law: (a) ante mortem probate, or that which is had during the lifetime of the testator; and (b) the probate after the death of the testator (Tolentino, Succession; see Article 838).
“The probate of the will decides no other question than… the capacity of the testator and compliance with those requisites or solemnities which the law prescribes for validity of wills. It does not determine… the validity or efficacy of the provisions; these may be impugned… notwithstanding the authentication” (Tolentino, Succession citing Montaño v. Suesa).
