B9. Modes of Revocation of Wills and Testamentary Dispositions

Question 1

Modes of Revoking a Will

Answer 1

1. By implication of law;
2. By some will, codicil, or other writing executed as provided in case of wills; or
3. By physical destruction through burning, cancelation or obliteration. (Art. 830, NCC)

Question 2

Instances when revocation by implication of law takes place:

Answer 2

Instances when revocation by implication of law takes place:

1. Upon the termination of the subsequent marriage in Article 41 of the FC through the filing of the affidavit of reappearance, the spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Hence, any testamentary disposition in the will of the innocent spouse in favor of the guilty spouse shall be revoked by implication of law. (Art. 43(5), FC)
2. If both spouses of the subsequent marriage referred in Art. 41 of the FC acted in bad faith, testamentary dispositions by one in favor of the other are revoked by operation of law. (Art. 44, FC)
3. In case of annulment, the spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Hence, any disposition in the will of the innocent spouse in favor of the guilty spouse shall be revoked by operation of law. (Art. 50 in relation to Art. 43(5), FC)
4. Upon issuance of the decree of legal separation, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (Art. 63(4))
5. In case of preterition of compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. In such case, the preterition shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. (Art. 845, NCC)
6. When the heir, devisee or legatee commits any of the acts of unworthiness which by express provision of law will incapacitate him to succeed. In such case, any testamentary disposition in favor of such heir, devisee or legatee is revoked. (Art. 1032, NCC)
7. When in the testator’s will there is a legacy of a credit against a third person or of the remission of a debt of the legatee, and subsequently, after the execution of the will, the testator brings an action against the debtor for the payment of his debt. In such case, the legacy is revoked. (Arts. 935 and 936, NCC)
8. When the testator (a) transforms the thing bequeathed in such a manner that it does not retain either the form or denomination it had, or (b) when he alienates by any title or for any cause the thing bequeathed or any part thereof, or (c) when the thing bequeathed is totally lost during the testator’s lifetime or after his death without the heir’s fault. In such cases, the legacy is revoked. (Art. 857, NCC; Rabuya, 2009)

Question 3

Requisites of Revocation by Subsequent will or codicil

Answer 3

Requisites of Revocation by Subsequent will or codicil

1. The subsequent instrument must comply with the formal requirements of a will;
2. The testator must possess testamentary capacity;
3. The subsequent instrument must either contain a revocatory clause or be incompatible, totally or partially, with the prior will; and
4. The revoking will must be admitted to probate.

Question 4

Principle of Instanter

Answer 4

1. The express revocation of the 1st will renders it void because the revocatory clause of the 2nd will, not being testamentary in character, operates to revoke the 1st will instantly upon the execution of the will containing it.
2. In implied revocation, the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator.

Question 5

Ways of Revocation by Physically Destroying a
Will (B-T-C-O)

Answer 5

Ways of Revocation by Physically Destroying a
Will (B-T-C-O)

1. Burning
2. Tearing
3. Cancelling
4. Obliterating

Question 6

Requisites of Revocation by Physical Act of Destruction (O-T-A-P)

Answer 6

1. Overt act of physical destruction;
2. Testamentary capacity of the testator at the time of performing the act of revocation;
3. Animus Revocandi - intention to revoke; and
4. Performed by testator himself or other person in the presence and express direction of the testator

Question 7

Doctrine of Dependent Relative Revocation

Answer 7

Where the testator’s act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition, 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.

But a mere intent to make at some time a will in place of that which is destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.

Question 8

If the revocation is based on a false or illegal cause,

Answer 8

it is null and void. (Art. 833, NCC)

Institution of heir based on false cause as a general rule does not affect the validity or efficacy of the institution and shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (Art. 850, NCC)