Recit Flashcards
Codicil
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
In order that a codicil may be effective…
It shall be executed as in the case of a will.
826
Codicil vs. Subsequent Will
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
Must the Codicil conform to the form of the will to which it refers?
NO. A holographic will can have an attested codicil and vice versa. Both may also be of the same kind.
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:
(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.]
Can holographic wills incorporate documents by reference?
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.
A codicil may be notarial or holographic will as long as it is executed in form required by law. T or F.
True.
Effect of a codicil
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.
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?
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.
- ) That it is the very writing referred to in the will
- ) That it was in the fact made before the will was executed
If the provisions of the will and the codicil are
inconsistent, which shall prevail?
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
The invalidity of the codicil will not affect the validity of the will. T or F.
True.
Rules on Incorporation by Reference
Art. 827»_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:
- The document or paper referred to in the will must be in existence at the time of the execution of the will.
- The will must clearly describe and identify the same, stating among other things the number of pages thereof
- It must be identified by clear and satisfactory proof as the document or paper referred to therein
- 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:
- The fact that you are referring to the document or paper
- The clear description and identification of the document
- The number of pages
Requirements to appear on the face of the document to be incorporated or being referred to:
- The signature of the testator;
- 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
GENERAL RULE: Only notarial wills shall have
incorporation by inference. T or F.
True.
Rationale:
- 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.
- 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:
- 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
- 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.
May there be a valid codicil to a revoked will?
Yes.
Notarial vs. Holographic Will
(1) notarial (ordinary, attested, or acknowledged)
2) holographic (handwritten by the testator from beginning to end, complete with date and signature
“Codicil” is derived from the Latin
“codex” and literally means a little code or a little will (although, of course, physically it may be larger or longer than a will)
A codicil may be made before a will. T or F.
False. It always refers to a prior will.
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.
True.
Witnesses different from those of the original will can be witnesses of the new document incorporated by reference. T or F.
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.
A will may be revoked by the testator at any time before his death. T or F.
True.
Any waiver or restriction of this right is void.
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.
True.
829
RULES FOR REVOCATION
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.
- 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
No will shall be revoked except in the following cases:
(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
MODES OF REVOKING A WILL UNDER
PHILIPPINE LAW
- By operation of law
- By a subsequent will or codicil
- By virtue of an overt act [physical destruction]
Revocation of a will by operation of law
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
Revocation of a will by a subsequent will or codicil
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
Revocation by physical destruction
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
Effect of unauthorized destruction
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.
Elements of a Valid Revocation by Physical Destruction
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.
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.
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.
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.
Oki.
831
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.
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.
DEPENDENT RELATIVE REVOCATION
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.
“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.”
Yas.
