Succession Provisions (September 15, 2023)

 Assigned readings for September 15, 2023

SECTION 1

Wills

SUBSECTION 1. Wills in General

Article 783. 

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 this estate, 

to take effect after his death.

Article 784. 

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, 

or accomplished through the instrumentality of an agent or attorney. 

Article 785. 
The duration or efficacy of the designation 

of heirs, devisees or legatees, 

or the determination of the portions which they are to take, 

when referred to by name, 

cannot be left to the discretion of a third person. (670a)

Article 786. 

The 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 787. 

The testator may not make 

a testamentary disposition 

in such manner that 

another person has to determine

whether or not it is to be operative.

Article 788.

If a testamentary disposition

admits of different interpretations, 

in case of doubt, 

that interpretation by which 

the disposition is to be operative 

shall be preferred.

Article 789.
When there is an imperfect description, 

or when no person or property exactly answers the description, 

mistakes and omissions must be corrected, 

if the error appears from the context of the will or from extrinsic evidence, 

excluding the oral declarations of the testator as to his intention; 

and when an uncertainty arises upon the face of the will, 

as to the application of any of its provisions, 

the testator's intention is to be ascertained from the words of the will,

taking into consideration the circumstances under which it was made, 

excluding such oral declarations.  

Article 790. 

The words of a will are to be taken in their ordinary and grammatical sense, 

unless a clear intention to use them in another sense can be gathered, 

and that other can be ascertained.

Technical words in a will 

are to be taken in their technical sense, 

unless the context clearly indicates a contrary intention, 

or unless it satisfactorily appears 

that the will was drawn solely by the testator, 

and that he was unacquainted with such technical sense.

Article 791.

The words of a will 

are to receive an interpretation 

which will give to every expression some effect,

rather than one which will render any of the expressions inoperative;

and of two modes of interpreting a will, 

that is to be preferred which will prevent intestacy.

Article 792. 

The invalidity of one of several dispositions 

contained in a will 

does not result in the invalidity of the other dispositions, 

unless it is to be presumed 

that the testator would not have made such other dispositions 

if the first invalid disposition had not been made.

 

Article 793. 

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.

Article 794.

Every devise or legacy 

shall cover all the interest 

which the testator could device or bequeath

in the property disposed of, 

unless it clearly appears from the will 

that he intended to convey a less interest.

 
Article 795. 

The validity of a will 

as to its form 

depends upon the observance 

of the law in force 

at the time it is made.

 

SUBSECTION 2. Testamentary Capacity and Intent

Article 796. 

All persons 

who are not expressly prohibited by law 

may make a will.

Article 797. 

Persons of either sex 

under eighteen years of age 

cannot make a will.

Article 798. 

In order to make a will 

it is essential 

that the testator 

be of sound mind 

at the time of its execution.

Article 799. 

To be of sound mind, 

it is not necessary that the testator 

be in full possession of all his reasoning faculties, 

or that his mind be wholly unbroken, unimpaired, 

or unshattered by disease, injury or other cause.

It shall be sufficient 

if the testator was able 

at the time of making the will 

to know the nature of the estate to be disposed of, 

the proper objects of his bounty, 

and the character of the testamentary act.

Article 800. 

The law presumes that 

every person is of sound mind, 

in the absence of proof to the contrary.

The burden of proof that 

the testator was not of sound mind 

at the time of making his dispositions 

is on the person who opposes the probate of the will; 

but if the testator, one month, or less,

before making his will was publicly known to be insane, 

the person who maintains the validity of the will 

must prove that the testator made it during a lucid interval.

Article 801. 

Supervening incapacity 

does not invalidate an effective will, 

nor is the will of an incapable 

validated by the supervening of capacity.

Article 802. 

A married woman may make a will 

without the consent of her husband, a

and without the authority of the court.

Article 803. 

A married woman may dispose by will 

of all her separate property 

as well as her share of the conjugal partnership 

or absolute community property.

SUBSECTION 3. Forms of Wills

Article 804. 

Every will must be in writing 

and executed in a language or dialect 

known to the testator.

Article 805.

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 and subscribed by three or more credible witnesses 

        in the presence of the testator and of one another.

The testator 

or the person requested by him to write his name 

and the instrumental witnesses of the will, 

shall also sign, as aforesaid, 

each and every page thereof, 

except the last, 

on the left margin, 

and all the pages shall be numbered correlatively in letters 

placed on the upper part of each page.

The attestation shall state 

the number of pages used upon which the will is written,

and the fact that the testator signed the will and every page thereof, 

or caused some other person to write his name, 

under his express direction, 

in the presence of the instrumental witnesses, 

and that the latter witnessed and signed the will 

and all the pages thereof 

in the presence of the testator and of one another.

If the attestation clause 

is in a language not known to the witnesses, 

it shall be interpreted to them.

Article 806.

Every 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, 

or file another with the office of the Clerk of Court.

Article 807. 

If the testator be deaf, or a deaf-mute, 

he must personally read the will, if able to do so; 

otherwise, he shall designate two persons 

to read it and communicate to him, 

in some practicable manner, 

the contents thereof.

Article 808.

If the testator is blind, 

the will shall be read to him twice; 

once, by one of the subscribing witnesses, 

and again, by the notary public before whom the will is acknowledged.

Article 809. 

In the absence of bad faith, forgery, or fraud, 

or undue and improper pressure and 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 805.

Article 838.

No will shall pass either real or personal property 

unless it is proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, 

petition the court having jurisdiction for the allowance of his will.

In such case, the pertinent provisions of the Rules of Court 

for the allowance of wills after the testator's a death shall govern.

The Supreme Court shall formulate 

such additional Rules of Court as may be necessary f

or the allowance of wills on petition of the testator.

Subject to the right of appeal, 

the allowance of the will, 

either during the lifetime of the testator or after his death, 

shall be conclusive as to its due execution.

Article 863. 

A fideicommissary substitution 

by virtue of which the fiduciary or first heir instituted 

is entrusted with the obligation to preserve 

and to transmit to a second heir 

the whole or part of the inheritance, 

shall be valid and shall take effect, 

provided such substitution 

does not go beyond one degree from the heir originally instituted, 

and provided further, 

that the fiduciary or first heir and the second heir 

are living at the time of the death of the testator.

Article 874. 

An absolute condition 

not to contract a first or subsequent marriage 

shall be considered as not written 

unless such condition has been 

imposed on the widow or widower by the deceased spouse, 

or by the latter's ascendants or descendants.

Nevertheless, the right of usufruct, 

or an allowance or some personal prestation 

may be devised or bequeathed to any person

for the time during which he or she 

should remain unmarried or in widowhood. 

Article 875.

Any disposition made upon the condition 

that the heir shall make some provision 

in his will in favor of the testator or of any other person 

shall be void.

Article 886. 

Legitime is that 

part of the testator's property 

which he cannot dispose of 

because the law has reserved it for 

certain heirs who are, therefore, called compulsory heirs. 

Article 891.

The ascendant who inherits from his descendant 

any property which the latter may have acquired by gratuitous title 

from another ascendant, or a brother or sister, 

is obliged to reserve such property as he may have acquired by operation of law 

for the benefit of relatives 

who are within the third degree 

and who belong to the line from which said property came.

Article 1031.

A testamentary provision 

in favor of a disqualified person, 

even though made under the guise of an onerous contract, 

or made through an intermediary, 

shall be void.