Recit

Question 1

Codicil

Answer 1

A supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered.

825

Question 2

In order that a codicil may be effective…

Answer 2

It shall be executed as in the case of a will.

826

Question 3

Codicil vs. Subsequent Will

Answer 3

Codicil: explains, adds to or alters a disposition in a prior will

Subsequent will: makes independent and distinct dispositions

*distinction purely academic as Art. 826 requires the codicil be in the form of a will anyway

Question 4

Must the Codicil conform to the form of the will to which it refers?

Answer 4

NO. A holographic will can have an attested codicil and vice versa. Both may also be of the same kind.

Question 5

If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:

Answer 5

(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories

827

Article only refers to documents such as:
1. Inventories
2. Books of Accounts
3. Documents of Title
4. Papers of Similar Nature
 DOES NOT include documents that make testamentary dispositions, or else the formal requirements of a will would be circumvented

[NOTES:
1) Observe that even the number of pages of voluminous accounts or inventories must be stated. (Art. 827, par. 2).
2) The exception refers only to the signing of all pages;
and even here, while not every page has to be signed,
still it is believed that there must be a signature on at
least several pages thereof for the purpose of identifying same as the documents really referred to.]

Question 6

Can holographic wills incorporate documents by reference?

Answer 6

NO. Par4 of Art827 requires signatures of the testator and the witnesses on every page of the incorporated document [except voluminous annexes]. It seems therefore that only attested wills can incorporate documents by reference, since only attested wills are witnessed.

Unless testator executes a holographic will and
superfluously has it witnessed.

Question 7

A codicil may be notarial or holographic will as long as it is executed in form required by law. T or F.

Answer 7

True.

Question 8

Effect of a codicil

Answer 8

Execution of will is moved to Date of Execution to codicil. Intention is controlling, reckoned at the time of the execution, otherwise considered after acquired which is deemed not included in will.

Question 9

Incorporation by Reference is an exception to the rule that if an instrument is not executed with all of the formalities of a will it cannot be admitted to probate.

What if it did not contain an attestation clause?

Answer 9

The inventory need not contain in the attestation clause. Having been clearly referred to in the will, the attestation clause of the will is sufficient. ( AC- it is the act of the witness not the testator)

It must be on the face of the will (Extrinsic Proof). Parol evidence is of necessity received to identify the writings. It must existing, the reference. When writing is offered, it must shown extrinsic proof.

1. ) That it is the very writing referred to in the will
2. ) That it was in the fact made before the will was executed

Question 10

If the provisions of the will and the codicil are

inconsistent, which shall prevail?

Answer 10

the codicil should prevail because the purpose of a codicil is to amend, alter, or add to a previously executed will

it is understood that the latter should prevail, it being the later expression of the testator’s wishes

Question 11

The invalidity of the codicil will not affect the validity of the will. T or F.

Answer 11

True.

Question 12

Rules on Incorporation by Reference

Answer 12

Art. 827&raquo_space; This is the Rule on Incorporation by Reference. It is incorporation of an intrinsic or separate document or paper into a will by reference so as to become a part thereof and probated as such.

Requisites of Incorporation by Reference:

1. The document or paper referred to in the will must be in existence at the time of the execution of the will.
2. The will must clearly describe and identify the same, stating among other things the number of pages thereof
3. It must be identified by clear and satisfactory proof as the document or paper referred to therein
4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories

Requirements to be stated in the face of the will:

1. The fact that you are referring to the document or paper
2. The clear description and identification of the document
3. The number of pages

Requirements to appear on the face of the document to be incorporated or being referred to:

1. The signature of the testator;
2. The signature of the witnesses

Requirements that can be proved by extrinsic
evidence:
1. That the document is inexistence at the time of the execution of the will;
2. That the document is the one being referred to in the will

Question 13

GENERAL RULE: Only notarial wills shall have

incorporation by inference. T or F.

Answer 13

True.

Rationale:

1. These documents under Article 827 have to be signed by the testator and the witnesses. In notarial wills, there are witnesses. In holographic wills, there are no witnesses.
2. In a notarial will, the contents can either be in the handwriting of the testator, typewritten or a combination. When you say documents to be incorporated into the will, these documents may either be typewritten or in the hand of the testator.

XPN: It may be a holographic will:

1. When the holographic will has at least 3 witnesses, there can be incorporation by reference because by then, the subscribing witnesses in the holographic will, although a surplusage, can sign the document to be incorporated
2. Even if there are no witnesses but the document to be incorporated are entirely written, signed and dated in the hand of the testator. In this case, what we have is a purely holographic will. You may have a valid incorporation by reference.

Question 14

May there be a valid codicil to a revoked will?

Answer 14

Yes.

Question 15

Notarial vs. Holographic Will

Answer 15

(1) notarial (ordinary, attested, or acknowledged)

2) holographic (handwritten by the testator from beginning to end, complete with date and signature

Question 16

“Codicil” is derived from the Latin

Answer 16

“codex” and literally means a little code or a little will (although, of course, physically it may be larger or longer than a will)

Question 17

A codicil may be made before a will. T or F.

Answer 17

False. It always refers to a prior will.

Question 18

A notarial will may be revoked by either a notarial or holographic codicil; similarly, a holographic will may be revoked by a holographic or notarial codicil. T or F.

Answer 18

True.

Question 19

Witnesses different from those of the original will can be witnesses of the new document incorporated by reference. T or F.

Answer 19

False.

It must be signed by the testator and the (same instrumental) witnesses on each and every page, except in case of voluminous books of account or inventories.

Question 20

A will may be revoked by the testator at any time before his death. T or F.

Answer 20

True.

Any waiver or restriction of this right is void.

Question 21

A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. T or F.

Answer 21

True.

829

Question 22

RULES FOR REVOCATION

Answer 22

A. Revocation made in the Philippines
• Philippine Law

 Revocation made Outside Philippines.
1. Testator not domiciled in Philippines
• Law of place where the WILL was made
• Law of place where the testator was domiciled at time of revocation.

2. Testator domiciled in Philippines [Art829]
   • Philippine Law – consistent with domiciliary principle followed by this article
   • Law of place of Revocation – principle of lex loci celebrationis
   • Law of place where the WILL was made – by analogy with rules on revocation where testator is a non-Philippine domiciliary

Question 23

No will shall be revoked except in the following cases:

Answer 23

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

829

Question 24

MODES OF REVOKING A WILL UNDER

PHILIPPINE LAW

Answer 24

1. By operation of law
2. By a subsequent will or codicil
3. By virtue of an overt act [physical destruction]

Question 25

Revocation of a will by operation of law

Answer 25

May be total or partial Examples of revocation by operation of law: a) Preterition – Art854 b) Legal Separation – Art63 par4 FC c) Unworthiness to succeed – Art1032 d) Transformation, alienation or loss of the object devised or bequeathed – Art957 e) Judicial demand of a credit given as a legacy - Art936

Question 26

Revocation of a will by a subsequent will or codicil

Answer 26

Requisites for valid revocation by a subsequent instrument: a) Subsequent instrument must comply with formal requirements of a will b) Testator must possess testamentary capacity c) Subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will d) Subsequent instrument must be probated to take effect • Revocation by subsequent will may be Total or Partial, Express or Implied a) Total – whole prior instrument is revoked b) Partial – only certain provisions or dispositions of the prior instrument is revoked c) Express – revocation of prior instrument is stated in the subsequent instrument d) Implied – incompatibility between provisions of prior and subsequent instruments

Question 27

Revocation by physical destruction

Answer 27

Four ways to destroy: a) Burning - It is not required that the whole instrument is completely burned. Even if only a portion of the document is burned, it is considered to be an act of revocation. b) Tearing - either you tear or cut by means of your hands or scissors. A slight cut or a slight tear is sufficient to be considered an act of revocation. The greater the cut the greater is the presumption that there is animu revocandi on the part of the testator. If the codicil is torn, it is an act of tearing and both the will and codicil are revoked because a codicil is part of the will. c) Cancelling - when you place a mark or a line across the writings. If you place a mark or a line on the spaces, there is no cancellation. d) Obliterating - it is when you erase thru eraser or like you blot out. If what is blotted out is just some provisions, these provisions are considered to be revoked but the will remains valid Physical destruction may be done by the testator personally or by another person ACTING IN HIS PRESENCE AND BY his express direction. Requisites: (1) The testator must have testamentary capacity at the time of performing the act of destruction; (2) The act of destruction must have been performed with the intention of revoking the will; (3) Such intention must have been accompanied by an actual physical act of destruction manifested by burning, or tearing, or cancelling, or obliterating of the will or a part thereof; and (4) Such act of destruction must have been performed by the testator himself, or by some other person in his presence, and by his express direction

Question 28

Effect of unauthorized destruction

Answer 28

Will may still be proved as lost or destroyed [Art830 NCC and Rule 76 RoC] However, this is possible only if the will is attested; if the will is holographic, it cannot be probated if lost, even if the loss or destruction was unauthorized, unless a copy survives.

Question 29

Elements of a Valid Revocation by Physical Destruction

Answer 29

a) CORPUS – physical destruction itself; there must be evidence of physical destruction b) ANIMUS – capacity and intent to revoke; testator must have completed everything he intended to do Both corpus an animus must concur.

Question 30

Loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been revoked by physical destruction. T or F.

Answer 30

True.  Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed.  Same presumption arises where it is shown that testator had ready access to the will and it cannot be found after his death.  But such presumptions may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

Question 31

Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.

Answer 31

Oki. 831

Question 32

A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.

Answer 32

Yes. 832 Efficacy of the revocatory clause does not depend on the testamentary disposition of the revoking will, UNLESS the testator so provides. Revocation is generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs. An EXCEPTION is where the testator provides in the subsequent will that the revocation of the prior one is dependent on the Capacity or Acceptance of the heirs, devisees or legatees instituted in the subsequent will.

Question 33

DEPENDENT RELATIVE REVOCATION

Answer 33

Where the act of destruction is connected with the making of another will as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. It must be remembered that dependent relative revocation applies only if it appears that the testator intended his at of revocation to be conditioned on the making of a new will or on its validity or efficacy.

Question 34

“A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of the Code of Civil procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.”

Answer 34

Yas.

Question 35

Supposing the institution of heirs, legatees or devisees in the subsequent will is subject to a suspensive condition, is the revocation of the prior will absolute or conditional?

Answer 35

Depends on the testator’s intent. If the subsequent will contains a revocatory clause which is absolute or unconditional, the revocation will be absolute regardless of the happening or non-happening of the suspensive condition. But if the testator states in the subsequent will that the revocation of the prior will is subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the revocation will depend on whether the condition happens or not. If the suspensive condition does not occur, the institution is deemed never to have been made and the prior institution will be given effect. [i.e. no revocation of prior will. This is in accord with the juridical nature of suspensive conditions, and is an instance of dependent relative revocation.

Question 36

Is the rule on dependent relative revocation applicable if the revocation of the will is by physical destruction?

Answer 36

YES. If testator executes a subsequent will revoking the prior will but conditioned on the validity of the subsequent will, then if the subsequent will is declared invalid, the prior will subsists.

Question 37

A revocation of a will based on a false cause or an illegal cause is null and void.

Answer 37

Yes. 833 Wills are revocable ad nutum or at the testator’s pleasure. The testator does not need to have a reason to revoke the will. However, precisely because the law respects the testator’s true intent, this article sets aside a revocation that does not reflect such intent.

Question 38

REQUISITES FOR A FALSE / ILLEGAL CAUSE TO | RENDER REVOCATION VOID –

Answer 38

1. CAUSE MUST BE CONCRETE, FACTUAL AND NOT PURELY SUBJECTIVE • If a testator revoked on the stated ground that the heir was Ilocano and all Ilocanos are bad, it would just be prejudice and the revocation is valid because it is based on a subjective cause. 2. IT MUST BE FALSE 3. THE TESTATOR MUST NOT KNOW OF ITS FALSITY 4. IT MUST APPEAR FROM THE WILL THAT THE TESTATOR IS REVOKING BECAUSE OF THE CAUSE WHICH IS FALSE.

Question 39

The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

Answer 39

Yes. 834

Question 40

Revocation

Answer 40

The act of mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act or sign, symbolic thereof.

Question 41

If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

Answer 41

Yes. 830

Question 42

When it is the devisee or legatee who prevents the revocation of the will, by the use of threat, fraud, or violence, the will is revoked, as to him, by implication of law on the ground that he has committed an act of unworthiness which disqualifies him from succeeding under Civil Code.

Answer 42

Yes.

Question 43

GENERAL RULE: The testator can always revoke his will during his lifetime. XPN?

Answer 43

If the testator during his lifetime loses testamentary capacity or becomes of unsound mind.

Question 44

If the revocation is made within the Philippines, we only have to comply with the Philippine law regardless of the nationality or domicile. T or F.

Answer 44

True.

Question 45

GENERAL RULE: Even if the tearing is not complete or the burning is not complete then there is an act of revocation. XPN?

Answer 45

When the testator starts burning his will but he realized that he really does not want to revoke his will. So before the will is completely burned, he desists from burning and that is voluntary desistance on his part. In this case, even if the will contains a slight burn or slight tear there is NO ACT OF REVOCATION because of the voluntary desistance by the testator.

Question 46

What should be proven during the probate of a | lost or destroyed notarial will:

Answer 46

• PRESUMPTION: A duly executed will has not been revoked • Burden of proof that the will is revoked lies upon the one who opposes the probate of the will which that person alleges has been revoked 1. Establish compliance with the formalities required by law under Articles 804-809 of the NCC 2. Prove that the will was inexistent at the time of the death of the testator or that it was fraudulently destroyed or lost without the knowledge of the testator or it was accidentally lost or destroyed by the testator without intent to revoke. 3. Prove the contents clearly and distinctly by copies or without copy by recital of content by some document or the testimony of the witnesses.

Question 47

There is IMPLIED REVOCATION when the testator, after having executed a will executes another will or codicil which the will or codicil does not contain a revocatory clause but its contents are inconsistent with the former will then there is implied revocation. T or F.

Answer 47

True.

Question 48

Doctrine of absolute revocation

Answer 48

Art. 832 A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.

Question 49

DOCTRINE OF DEPENDENT RELATIVE REVOCATION

Answer 49

Where the act or destruction is connected to the making of a will so as squarely to raise the inference that the testator meant the revocation of the old would depend upon the efficacy of the new disposition and if for any reason the new will intended to be made as a substitute is inoperative, the revocation fails and the original will is in full force and effect.

Question 50

There is no revocation by overt act if the destruction of the first will was prompted by a false belief that the subsequent will executed was valid. T or F.

Answer 50

True.

Question 51

If the destruction is AFTER the execution of the subsequent will, the Doctrine of Dependent Relative Revocation applies. He destroyed the 1st will after having executed the 2nd will.

Answer 51

Oki. But if he destroyed the 1st will LONG BEFORE the execution of the subsequent will, you can no longer apply the doctrine. The will here was destroyed by an overt act, so it is absolute.

Question 52

Article 833 is another aspect of the Doctrine of Dependent Relative Revocation. You revoke the will based on a false belief. It is also called revocation by mistake. A revocation of a will based on a false cause or an illegal cause is null and void.

Answer 52

When the revocation is made by a subsequent instrument the false cause must be stated in the face of the will.

Question 53

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?

Answer 53

No, the first will cannot be admitted to probate. While it is true that the first will was successfully revoked by the second will because the second will was later denied probate, the first will was, nevertheless, revoked when the testator destroyed it after executing the second invalid will.

Question 54

A wanted to revoke his will, so he threw it into a stove so that it would be burned later on when a fire would be lighted in the stove. However, the will was later removed by another person from the stove BEFORE the stove was lighted.

Answer 54

There was NO revocation here, for while there was intent to revoke, there never was the overt act of burning. However, the person who prevented the revocation, if he be an heir or a legatee or devisee, will still NOT inherit, not because of revocation by means of an overt act (for indeed there was NO overt act) but because of revocation by implication of law, said person being incapacitated to inherit by reason of UNWORTHINESS.

Question 55

If a will is burned accidentally, there is no revocation | in view of the lack of intention. T or F.

Answer 55

True.

Question 56

If the envelope containing a will is burned, but the will itself is untouched, there is NO revocation even if there be intent to revoke. Why?

Answer 56

There was no overt act of burning the will, as distinguished from the envelope.

Question 57

The mere act of “crumpling” or the removal of the “fastener” binding the pages of a will, does NOT constitute a revocation, even though there be animo revocandi.

Answer 57

Yes. The reason is that “crumpling” is not one of the overt | acts provided for by the law.

Question 58

T made a will which was later discovered same to be missing. He then informed his relatives he would make another will. But he never did so. On his death, the missing will was found. Can it be considered revoked?

Answer 58

No, because actually there has not been any of the overt acts mentioned under the law. And even if the will was never found, still parol evidence may be introduced to prove its contents, for we may presume here that the destruction, if indeed there was any, was not authorized. The case would have been different had the testator ready access to his will, and never told anyone he had lost the same. In such a case we can presume that the will, having been last seen in the possession of the testator, has been destroyed intentionally, with intent to revoke, by the testator.

Question 59

If a notarial will has been lost or destroyed without intent to revoke, its contents may nevertheless still be proved by:

Answer 59

1) oral or parol evidence | 2) carbon copies

Question 60

Holographic wills, which have been lost or destroyed without intent to revoke, cannot be probated. May a lost or destroyed holographic will be proved by means of a photostatic or xerox copy thereof?

Answer 60

YES, because the authenticity of the handwriting of | the deceased can be determined by the probate court.

Question 61

The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form.

Answer 61

Yes. 835

Question 62

The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.

Answer 62

836

Question 63

If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent will and reproduce [copy out] the dispositions of the original will. Mere reference to the prior will in the subsequent will is not enough.

Answer 63

Yup.

Question 64

If the testator wishes to Republish a will that is either: a. VOID for a reason other than a formal defect, or b. Previously REVOKED The only thing necessary to republish it is

Answer 64

for the testator to execute a subsequent will or codicil referring to the previous will. There is no need to reproduce the provisions of the prior will in the subsequent instrument

Question 65

If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not derive the first will, which can be revived only by another will or codicil.

Answer 65

Yas. 837

Question 66

Republication v. Revival

Answer 66

(1) Rpb: the re-establishment by the testator of previously revoked will or one invalid for want of proper execution as to form or for other reasons so as to give validity to said will Rvv: the re-establishment to validity by operation of law of a previously revoked will (2) Rpb: involves the act of the testator Rvv: involves the act of law, operation of law (3) Rpb: There is a will previously revoked or a will valid as to form or a will invalid for any other cause Rvv: A will previously revoked

Question 67

Republication

Answer 67

The re-establishment by the testator of a previously revoked will or one invalid for want of proper execution as to form or for other reasons so as to give validity to said will. An act of the testator whereby he reproduces in a subsequent will the dispositions contained in a previous will which is void as to its form or executes a codicil to his will.

Question 68

2 Kinds of Republication

Answer 68

1) EXPRESS REPUBLICATION/REPUBLICATION BY RE-EXECUTION is a republication in a subsequent will a previous one which is void as to form (Article 835) 2) IMPLIED REPUBLICATION/REPUBLICATION BY REFERENCE is the execution by a codicil referring to a previously revoked will or a will valid as to form but void because of some extrinsic defects like lack of testamentary capacity (Article 836)

Question 69

If the old will is void as to form, the only way to republish it is by

Answer 69

re-execution

Question 70

If old will is void but not as to form because the testator lacks testamentary capacity, it can be republished by

Answer 70

re-execution or it can be republished by reference

Question 71

There is revival if the first will is IMPLIEDLY REVOKED by a second will. T or F.

Answer 71

True.

Question 72

PRINCIPLE OF INSTANTER or Theory of Instant Revocation

Answer 72

States that when the will is EXPRESSLY revoked by a 2nd will, the revocation of the 2nd will by the 3rd will will not revive the 1st will. This is because revocation takes effect immediately. It does not wait for the death of the testator to become effective because revocation does not take the form of testamentary disposition.

Question 73

Revival

Answer 73

Revival is the restoration to validity of a previously revoked will by operation of law. It differs from republication in that it takes place by operation of law, while the latter takes place by the act of the testator. It seems that under our law, the only way by which a previously revoked will may be revived is through another will or codicil.

Question 74

A notice via publication of the settlement was made. However, the heirs had no knowledge of the publication ever been made. ISSUE: Did the publication of the settlement constitute “constructive notice” to the heirs who had no knowledge of it?

Answer 74

It did not constitute constructive notice to the heirs who had no knowledge or did not take part in it “because the same,” in the words of the Supreme Court, “is notice after the fact of execution.”

Question 75

T made a notarial will in 2002 with only 2 attesting witnesses. This will is void as to its form and is therefore useless. If he desires to give life to the will, say in 2004, what he should do is to republish it. How? By executing a new will in 2001, copying all the provisions in the old will, but this time, he must use three attesting witnesses. The effect is as if he made the will not in 2002 but in 2004. In other words, the will is a reestablished act, and therefore the will governs property he had acquired up to 1997.

Answer 75

Oki.

Question 76

In 2002, T made a notarial will, without an attestation clause. Later on, he made a private instrument to the effect that he was ratifying said will. Is there a republication here?

Answer 76

No, since there would be a reproduction of all the provisions. Of course, even a holographic will would be sufficient, but even here, reproduction is required.

Question 77

A testator revoked his will by cutting out his signature in the will, with animo revocandi. Later, he changed his mind, and pasted back his signature in its previous position. Does the revocation remain or has there been a republication?

Answer 77

The will remains revoked, the attempted republication not having complied with legal requirements for republication.

Question 78

Can a will, invalid because of fraud or force or undue | influence or because the testator was under 18 or was insane, be republished by mere reference in a codicil?

Answer 78

It is submitted that the answer is yes, because this is not a case when the will is void as to its FORM. (Form — in this Article, it is believed, refers to such things as those covered by Art. 805, et seq., like defect in the number of witnesses, lack of or fatal defect in the attestation, lack of acknowledgment, etc.). But not to vitiated consent or to lack of testamentary capacity, although of course these are included in the phrase “extrinsic validity,” as distinguished from “intrinsic validity.’’

Question 79

Examples of Revival

Answer 79

(a) While omission of a compulsory heir in the institution of heirs annuls the institution, still if the omitted heir dies ahead of the testator, the institution is revived, without prejudice to the right of representation. (See Art. 856). (b) If after making a will, the testator makes a second will impliedly revoking the fi rst, the revocation of the second will revives the fi rst will. (Implication from Art. 837).

Question 80

I made 3 wills. Will No. 2 expressly revoked Will No. 1. | Will No. 3 revoked Will No. 2. Is Will No. 1 revived?

Answer 80

No, by express provision of Art. 837. The rule is based on the principle that the revocatory clause of the second will took effect immediately or at the instant the revoking will was made. (This is the principle of INSTANTER — thus, we say, the clause revoked the first will that contains said clause.) In other words, the theory is that death does not have to come before giving effect to a revocatory clause. Stated otherwise, while a will is a disposition mortis causa, a revocation takes effect, inter vivos.

Question 81

T made 3 wills. Will No. 2 is completely inconsistent with, and therefore, impliedly repeals Will No. 1. Later Will No. 3 revokes Will No. 2. Is Will No. 1 revived?

Answer 81

Yes. This is a clear inference from Art. 837. Since the Article uses the word “expressly,” it follows a sensu contrario (contrariwise) that in case of an “implied” revocation by the second will, an automatic revival of the first occurs. Apparently, the reason is the fact that an “implied revocation” is ambulatory, the inconsistency being truly and actually apparent only mortis causa, when the properties are distributed.

Question 82

A made Will No. 1, then Will No. 2 expressly revoking the first. Then he destroyed Will No. 2, and orally expressed his desire that his first will be followed. Should this be allowed?

Answer 82

No, the oral expression of the desire to revive | cannot be given effect. He should have made a new will or codicil.

Question 83

Institution of heir

Answer 83

Institution of heir is an act by virtue of which a testator designates in his will the person or person who are to succeed him in his property and transmissible rights and obligations. 840

Question 84

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs.

Answer 84

841

Question 85

One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.

Answer 85

842