ARTS. 825-827 CODICILS AND INCORPARTION BY REFERENCEQ: What is a Codicil?

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

Q: How is a codicil executed?

A: Same as Wills. It shall be executed as in the case of wills (in accordance with Arts. 804 to 814) in order that the codicil may be effective.

N.B.: Art. 825 enunciates that the definition of a codicil, while Art. 826 gives the requisites in order that the codicil may be effective.

The word codicil imports a reference to some prior paper as a will. There may however, be a valid codicil to a revoked will. At first, codicils were actually attached to the will, but this is no longer necessary; when they are separate documents, the codicil referring to and ratifying the will may be said to incorporate the will by reference, or to republish the will. In order to operate as a republication of the will, it is sufficient if the codicil refers to the will in such way as to leave no doubt as to the identity of that instrument. A reference to the will in the codicil constitute as a sufficient identification of the will.Q: What are the formalities in executing a codicil?A: The same as Holographic and Notarial wills (Arts. 804 to 814).

Q: What is the difference between a will and a codicil?

A: A Codicil EXPLAINS, ADDS TO, OR ALTERS the original provision of a Will. It is NOT INDEPENDENT to the prior will and it is always EXECUTED AFTER A WILL.

Q: If there is a conflict between a codicil and a will, which one will prevail?

A: The codicil will prevail, it being the later expression of the testators wishes.Q: Can there be a holographic codicil?

A: Yes, as long as, it is entirely written, dated and signed by the hand of the testator.

Q: May a holographic will be amended by a notarial codicil?

A: Yes, a holographic will may be revoked by either a notarial or holographic codicil. Also, a notarial will may be revoked by either a holographic or notarial codicil.

Q: X executed a notarial will in 1985. Subsequently, X executed a holographic codicil. Can the notarial will be modified or revoked by the holographic codicil?

A: Yes, because any codicil, whether holographic or notarial, may modify a previous will. Thus, a notarial will may be modified or revoked by a notarial or holographic codicil. The only requirement is that, the codicil must be executed in accordance with the formalities required by law, otherwise, it is void and it cannot revoke a will.N.B.:1. If a codicil is not executed with the formalities of a will, said codicil is void.2. A valid will can never be revoked, expressly or impliedly by an invalid codicil.

Q: How do you identify a codicil?

A: A codicil refers to the original will, if there is entirely no reference at all, it is considered as new will.

Q: May a codicil be made before the execution of the will?

A: No, because a codicil refers to a will. It cannot be made before the execution of the will.

Q: What are the requisites for incorporation by reference?A: Art. 827:

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 witness on each and every page except in case of voluminous books of account or inventories.Q: What is the purpose of the aforementioned incorporation by reference?

A: To provide for those cases, where a testator wishes to incorporate to his will by reference, voluminous documents. Hence, the testator is able to save time and energy.

Q: Are the witnesses required to agree with the testator for the incorporation of the reference?

A: No, it is an act of the testator alone.

Q: X executed his last will and testament. It is a notarial will with many properties. The properties appeared on the last list. Can this last list be incorporated by reference?

A: Yes.

Q: In the preceding problem, should the list be attested by the attesting witness?

A: No. Under Art. 827, said documents or inventories, when referred to in a notarial will, do not need an attestation clause, because the attestation clause of the will itself is sufficient.

Q: In case of voluminous books of accounts or inventories, do the testator and the witness have to sign each page thereof?

A: No, it need not be signed on each and every page thereof. Take note however that the exception refers only to the signing of all the pages thereof. Thus, while not every page has to be signed there must be a signature on at least several pages thereof, for the purpose of identifying the same as the document really referred to.

Q: Can there be incorporation by reference with respect to holographic wills?

A: As a rule: No. Art 827 (4) Provides, it must be signed by the testator and the WITNESSES xxx. From this provision, it can be deduced that as a rule, incorporation by reference may be applied only on notarial wills. Wills that are attested.(Pls. refer to Tolentinos commentary)

Q: as regards proof as to the identity of the document as incorporated, can evidence allunde?A: Yes, parole or extrinsic evidence, it is even necessary on this situation.

N.B.: Stated generally, the doctrine is that a will duly executed and witnessed according to statutory requirements, may incorporate into itself by an appropriate reference a written paper or document which is in existence at the time of the execution of the will, irrespective of whether such document is one executed by the testator or a third person (in the presence of the testator and by his direct expression), whether it is in itself a valid instrument, provided the document referred to is identified by clear and satisfactory proof. So incorporated, the extrinsic paper takes effect as part of the will and is admitted to probate as such.

Q: Can a document, which is incorporated by reference to a will, refer to papers, which may be made only in the future?

A: No. The incorporation will be invalid, but the will remains valid. The will must refer to papers which have been made already (EXISTING). It is not enough to state that it is already in existence.Q: Suppose that in 1985, X typed a document, which he intended to be used in the future, as his last will and testament. In 1995, X made a will and incorporated the 1985 document. Is there a valid incorporation?

A: No, the 1985 document is a testatmentary provision. So it must be made into a will. Art. 827 refers only to references such as an inventory.

The purpose of incorporation by reference is merely for convenience. It cannot be done to incorporate testamentary dispositions.Note: Art. 827 refer only to non-testamentary dispositions (document or paper). So if it is testamentary, the rules on codicils or a will must be applied and not the rules on incorporation by reference.

Q: Can a will be a document, which is incorporated in another will?A: No. The law allows incorporation only, if what is incorporated in a will, is not itself a will. (First paragraph of Art. 827)

ARTS. 828 834: REVOCATION OF WILLSQ: What do you mean by revocation as applied to wills?

A: It is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbol thereof.

** For short, an act to annul the will in whole or in part.

Q: Can the testator waive the right to revoke?

A: No, it is a void waiver. The law provides that the right of the testator to revoke cannot be restricted.

Q: In 1985, X in par. 10 of his will stated, this is my last will and testament, and I do not intend to change any of the provision in it. I therefore revoke my right of revocation. In 1995, he changed his mind. Can X still revoke his 1985 will?

A: Yes.

Q: Even if he expressly waived his right to revoke the will?

A: Yes. A will may be revoked by the testator anytime before his death. Any waiver or restriction of this right is void.

Q: Can an oppositor contest the probate of a will, by the mere fact that the said will contains an irrevocable clause?A: Yes, because this is an indication that the testator did not understand the character of the testamentary act at the time of the execution of the will. Furthermore, said irrevocability clause is void under Art. 828.

Q: How may a will be revoked?

A: No will may be revoked, except in the following cases:

1. By implication of law

2. By some will, codicil or other writing executed as in the case of a will; or,

3. By burning, tearing, cancelling and obliterating the will with the intention of revoking it by the testator himself or by some other person with the testators presence and under his express direction.

Q: When is a revocation by implication of law?

A: the revocation is to be implied from certain changes in the family or domestic relations of the testator, or in his property, or one involving the beneficiaries of his will, from which the law infers or presumes that he intended a change, either total or partial, in the disposition of his property.

Q: What are the instances of revocation by implication of law?1. When there is a decree of legal separation.

2. When there is preterition or omission of one, some or all of the 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 heirs.

3. When in the testators will there is a legacy of a credit against a third person or of the remission of a debt of the legatee; and the 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.

4. When the testator transforms the thing bequeathed in such a manner that it does not retain either the form or denomination it had, or when he alienates by any title or for any cause the thing bequeathed or when the thing bequeathed is totally lost during the testators lifetime or after his death without the heirs fault. In such cases the legacy is revoked.

5. When the heir, devisee or legatee commits any of the acts of unworthiness, which by express provision of the law will incapacitate a person to succeed. In such case, any testamentary disposition in favor of such heir devisee or legatee is revoked.

6. Art. 44. Family Code: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law.7. Art. 50. Family Code: in cases of marriages which are declared void ab initio or annulled by final judgement.

N.B.: In legal separation, a spouse may still inherit from the other spouse, unless, found guilty of the grounds of legal separation.

Q: If there is a legal separation, suppose the wife was instituted not as an heir, but as a legatee, will the effect of revocation remain the same?

A: Yes, in the case of legal separations, provisions in favor of the offending spouse shall be revoked by operation of law. Hence it is not material in what concept the provision was made.

Q: Suppose that in a 1985 will, X stated that he is bequeathing the entire free portion of his estate to his wife. In 1990, X and his wife were granted a legal separation on the ground of Xs adultery. Thereafter, X died. May Xs wife still inherit base on the 1985 will?

A: Yes, It is the provision in favor of the offending spouse and not of the innocent which shall be revoked.

Q: Suppose Mr. X made a notarial will in 1985. There is only one copy of the said will. X died in 1995. The will was stolen after Xs death and was destroyed, Would it still be possible to admit the will to probate?

A: Yes, if burned, torn, cancelled or obliterated by some other person, without the express direction of the testator, the will may still be established, and its estate distributed in accordance therewith, if its unauthorized destruction, cancellation and obliteration are established according to the Rules of Court (Rule 76).

Q: In the preceding problem, what if it was a holographic will?

A: No, because there would be no document which may be examined to verify the authenticity of the testators handwriting.

Exception: Existence of a photocopy or mimeo copy.

Q: To revoke a will by an overt act, what are the requisites? Or what are the requisites of revocation by physical destruction?1. There must be an OVERT ACT specified by law (burning, tearing, canceling and obliterating);

2. There must be and ANIMUS REVOCANDI or an intent to revoke;

3. There must be a COMPLETION, of at least the subjective phase of the overt act, and

4. The testator at the time of revoking the will must have CAPACITY TO MAKE A WILL;

5. The testator must do the act of revocation HIMSELF OR BY SOME OTHER PERSON in his presence and by his express direction (ratification of an unauthorized destruction is, however permissible, provided sufficient proof this is presented).

N.B.: the INTENTION to revoke must concur with an OVERT ACT, manifesting the intention. Neither, destruction without intention nor intention without destruction would revoke the will.

Q: Suppose that X made five copies of his will and he gave four of them to his friends for safekeeping. In 1985 he revoked his will by burning it. Is it necessary that for the validity of the revocation, that X retrieve all the copies of the will?

A: No

Q: X made a will in 1998. In 2001, with intent to revoke the will, X threw the will out of the window. Is there a valid revocation of the will?

A: No, because there was NO ACTUAL AND PHYSICAL DESTRUCTION OF THE WILL.

Q: X made a will in 1998. Thereafter, he placed the will inside a drawer, in 2001, the house of X was razed by fire. The drawer where the will was placed was also consumed by fire. Obviously the will perished with it. Is the will revoked?

A: No. Despite the actual and physical destruction of the will, there was no valid revocation. The reason is: there was no intent to revoke the will. Intention and destruction must go hand in hand.

N.B.: If the will is contained in an envelope and the latter was burned without the contents included, the will is not revoked.

Exception:

1. If a holographic will happens to have at least 3 credible and qualified witnesses; and

2. (Having no witness) it refers to a document entirely written dated and signed by the hand of the testator, there can also be a proper incorporation by reference.

Note: these exceptions may only be an opinion. Stick to the codal provision to be safe.