Subsection 5

Codicils and incorporation by reference

Art. 825. A codicil is 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. (n)

Article 825 gives you the definition of a codicil. In latin codicil is called CODEX,
which means little will or little code.

The provision clearly states that codicil is part of the will. Since it is part of the will
then it cannot exist as its own.

The provision also states that a codicil is executed after the will.

Question: if the original will is a notarial will, should the codicil be also in the
form of notarial codicil?
Answer: NO. when you executed first a notarial will, you may execute a notarial
codicil or holographic codicil and still it is taken a part of the original will
regardless of the form.
Question: what is a holographic codicil?
Answer: Like a holographic will, it is written , dated , signed in the handwriting of the
testator.
Answer: what is a notarial codicil?

Answer: When you say Notarial Codicil, it is attested by at least 3 witnesses, has an
attestation clause, signed on the left hand margin in each and every page. Thus all the
requirements for a notarial will should also be followed in the execution of a notarial
codicil.

Question: what if the will and the codicil are in conflict.

Answer: the one who will prevail is the codicil because it is executed AFTER the will then
it is considered the later expression or the wishes of testator.

Art. 826. In order that a codicil may be effective, it shall be executed as

in the case of a will. (n)

It follows here that the codicil will be void if it does not comply with the
formal requirements laid down by the law. But the invalidity of the codicil
will not affect the validity of the will. So the original will stands as if it is
unaffected by the codicil.
Art. 827. 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. (n)

This is the rule on incorporation by reference.

Reason for this rule: When the testator executes the will, there are certain other documents which the
testator wants to be part or incorporate in his will.

For instance: the testator executes his will and he wants his inventory of properties to form part of his
will, the testator need not copy the provisions or the contents of the 10-page inventory because if he
should not be allowed to just incorporate by reference , then it would be very exhausting for the
testator to execute his will. So he can just refer to his inventory and he has to follow article 827.
General rule: In probate of wills, only documents or
papers which are executed in the form of wills can be
allowed probate. That’s why codicils can also be
probated.
Exception: article 827. why? Because while a document
or the paper mentioned here is not in the form of will, it
can be probated along with the will.

Question: what is the rule of incorporation by

reference?
Answer: it is incorporation of an intrinsic or separate
document or paper into a will by reference so as to
become part thereof and probated such.
Take note: in order for a codicil or a will to be
probated it must be executed in compliance with
the requirements prescribed by law. In article 827,
it provides an exception to the rule that only
documents executed in compliance with the
requirements should be allowed probate. In this
article even if the requirements prescribed by law
for documents to be admitted to probate are not
followed, still the document may be admitted to
probate.

… the inventory need not be attested by subscribing

witnesses or contain an attestation clause etc.
1st requirement: the document or paper referred to in the will must be in existence
at the time of the execution of the will.
When you execute the will and you want to incorporate the will for example the
inventor, then the inventory has to be already in existence AT THE TIME OF THE
EXECUTION of the will because when you incorporate an inventory which is yet to be
prepared then that is not a valid incorporation by reference.

For example: I say in my will “My property referred to in page 8 of my inventory to

be executed tomorrow”. It is clear that inventory will still have to be executed. So, it
is not valid as provided under article 827.

2nd requirement: the will must clearly describe and identify the same, stating among
other things the number of pages thereof;

Question: what about if the document is voluminous 1000+ pages?

Answer: Still there is a need to state the number of pages because the law does not
give any exception.

3rd requirement” it must be identified by clear and satisfactory proof as the

document or paper referred to therein.
Here, you have to prove that the document you are presenting is the same document
that is being referred to in the will. This is during the probate.
4th requirement: 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.

For example, the inventory: the inventory must be

signed on each and every page by the testator and
witness.

SUBSECTION 6
REVOCATION OF WILLS AND TESTAMENTARY DISPOSATIONS

Article 828. A will may be revoked by the testator at any

time before his death. Any waiver or restriction of this
right is void. (737a)
Article 828 speaks REVOCATION.
Question: what is Revocation?
Answer: revocation is an act of the mind terminating the potential
capacity of a will to operate at the death of the testator manifested by
some outward and visible act or sign symbolic thereof.

an act of mind- there must be an intent to revoke. The mind wants to

revoke.

FORMULA
Intent to revoke +outward act= revocation takes place
No intent to revoke + overt act = no revocation
Intent to revoke + no overt act = no revocation

as long as the testator is alive he can revoke his will. This is the essence of
the will being ambulatory and essentially revocable. So you cannot
prevent the testator from revoking his will. If the testator agrees in writing
that, “ yes , I waive my right to revoke my will”, that is void.
Article 829. 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. (n)

This article talks about the laws governing revocation.

Rules:
1. With respect to wills revoked OUTSIDE the Philippine by a non-resident whether Filipino or
foreigner. It is governed by:
a. The law of the place where the will was MADE (not where the will is revoke)
b. The law of the place of DOMICILE of the testator.

2. If made by RESIDENT whether a Filipino or foreigner. It is governed by:

a. The law of the place of REVOCATION – this is provided under article 17 NCC, the rule of lex
loci celebrationis. The law of the place of execution and the execution in that case is the
revocation.
b. The law of the place of DOMICILE- in this case, the Philippines because he is a resident of
the Philippines.
So when the revocation is made in the Philippines, what applies is the law of the Philippines
regardless of the nationality or domicile because the Philippines is the Place of Celebration, in
this case the Celebration of Revocation.
PINAKA IMPORTANTE! YOU HAVE TO REMEMBER THAT IN LAWS GOVERNING
REVOCATION, THE NATIONAL LAW OF THE TESTATOR HAS NO RELEVANCE.
Omit the national law of the testator.

Article 830. 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, cancelling, 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. (n)
1 by implication of law

QUESTION: why is it that there is an implication of law?

Answer:Because there are certain circumstances wherein logically,
these acts are done only by a person who wants to revoke his woll.
That is why the law presumes that if these acts are done by the
testator then the testator has revoked his will. It is presumed by law
because it is presumable the intention of the testator.

QUESTION: what happened if despite the execution of the act which

the law considers as the act of revocation, the testator really has no
intention of revoking his will?
Answer: the law shall prevail. If testator wants to give effect to his
will then he has to re execute his will and refrain from doing those
acts which the law considers to be an implication that he has revoke
his will.
What are the acts considered by law as an act of revocation?
1 article 854 preterition
When the testator omits a compulsory heir in the direct line , the institution of heris in the will is
annulled. In effect , there is revocation by operation of law.

2 Article 957 of the NCC- when after the testator has made a will he sells, donate the legacy or devise
Example: A gives a car to B . A after giving the cat by virtue of the will sells the car to C. In this case, it is
presumed that A has revoked the legacy of the car to B.

3.Artivle 396 when a credit has been given as a legacy is judicially demanded by the testator.
Example: Paolo jas receivebales from JC. But in his will Paolo is giving the credit from JC to inigo. One
month after the execution of the will giving his legacy of the credit, paolo judicially demand or filed a
case against JC for collection of the amount. In that case, the legacy or credit is deemed to have been
revoked by operation of law.

4 Under article 1032 of NCCC when the heir,legatee or decisee commits an act of unworthiness.
Example: A house is given to Bimby, but Bimby attempts the life of kris, his mother so that is an act of
unworthiness. In that case, the disposition in favor of bimby is revoked by operation of law

5 Article 106 of the FC provisions in the will in favor of the spouse who has given cause to legal
separation, these provisions are considered revoked by operation of law. The moment the decree of
legal separation has been rendered.
Q: Arthur executed a will which contained only: (i) a provision
disinheriting his daughter Bernica for running off with a married man,
and (ii) a provision disposing of his share in the family house and lot in
favor of his other children Connie and Dora. He did not make any
provisions in favor of his wife Erica, because as the will stated, she
would anyway get ½ of the house and lot as her conjugal share. The
will was very brief and straightforward and both the above provisions
were contained in page 1, which Arthur and his instrumental witness,
signed at the bottom. Page 2 contained the attestation clause and the
signatures, at the bottom thereof, of the 3 instrumental witnesses
which included Lambert, the driver of Arthur; Yoly, the family cook,
and Attorney Zorba, the lawyer who prepared the will. There was a 3rd
page, but this only contained the notarial acknowledgement.
The attestation clause stated the will was sighed on the same occasion
by Arthur and his instrumental witnesses who all signed in the
presence of each other, and the notary public who notarized the will.
There are no marginal signatures or pagination appearing on any of
the 3 pages. Upon his death, it was discovered that apart from the
house and lot, he has a P1 million account deposited with ABC back.
(2008)
Was Erica preterited?
2 Revocation by the execution of another will or codicil

Revocation in this manner may be express or implied.

Question: When is there implied revocation?

Answer: Implied revocations consists in complete inconsistency between
two wills.

Question: A made a will no.1 . After one month, he wanted to revoke the
same, so he executed will No. 2 , expressly revoking No.1. In the belief that
he had already accomplished what he wanted, he then tore ino two pieces
will no. 1 . On his death, it was discovered that will No. 2 had not been
validly executed.
Answer: While it is true that the revocation was not produced by an invalid
will, revocation here was made thru an overt act (the act of tearing) with
intent to revoke. Hence will no. 1 had indeed been revoked.

Answer 2: There was no revocation, because the act of tearing is prompted

on the belief that the second will had been validly executed. Thus it is not
valid under the doctrine of dependent relative revocation article 833.
3 by overt act
Remember this requsite:
1. There must be an OVERT ACT specified by law;
2. There must be completion of subjective phase of the overt act;
3. There must be animus revocandi or intent to revoke;
4. The testator at the time of revoking must have capacity to make a will;
5. The revocation must be done by the testator himself, or by some other person in his presence
and by his express direction.

The act of burning

It is sufficient even if a small part of the instrument itself be burned even though the entire writing itself
be left untouched. (basta with intent to burn)

Question. A wanted to revoke his will, so he threw the will to the 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. Is there revocation?
Answer:
NO, there was no revocation. The law provides that a revocation by overt act is valid only when there
was an overt act coupled with animus revocandi.

Here , while there was animus revocandi, however, there was no overt act. Thus there was no
revocation.
 TESTATE ESTATE OF THE LATE ADRIANA MALOTO V. CA

It is clear that the physical act of destruction of a will, like burning in

this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by
the testator himself. It may be performed by another person but under
the express direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself.

Take note that if a will is burned accidentally, there is no revocation in

view of the lack of intention.

In one case 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? There was no over act of burning the will distinguished
from burning the envelope. (REED V. HARRIS)
The overt act of tearing

Take note that even the slight tear is sufficient. The greater is the evidence of animo
revocandi. Tearing into Three pieces is sufficient. When all the other requsites are
present. As a matter of fact tearing into two is even enough.

PERKES V. PERKES
FACTS: in a fit of anger, a testator tore his will twice and was continuing to so tear
when somebody held his arms and persuaded him to refrain from tearing his will. He
then placed the torn pieces in his pocket and said, “nothing significant has after all
been torn”. Later, the testator died, and the torn will was found.

Issue: was there a revocation here?

HELD: The will was NOT revoked for the act of tearing was subjectively not yet
complete, inasmuch as he intended to tear up cutting the will some more.

Tearing includes cutting.

VERY IMPORTANT: the act of CRUMPLING or the removal of FASTENER binding the
pages of a will, does not constitute a revocation even though there be animo
revocandi.
the overt act of OBLITERATING or CANCELING
obliteration – renders the word illegible ; cancellation - is
the drawing of lines across a text , but the words remain
legible.

Take note of this rule: If there is cacellation or obliteration

of non-vital part leaves the other parts in force.

Article 831. 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 later wills. (n)
This article speaks of implied revocation , and this may be total or partial. If there is inconsistency only
in certain portions.

The law does not favor revocation by implication , and therefore efforts to RECONCILE must be made.

Article 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. (740a)

Effect on revocation if NEW WILL is inoperative.

Take note there is a difference between an invalid will, and a valid but ineffective will.

We already know that an invalid revoking will cannot revoke. But a valid though ineffective will can
revoke.

Example: A made a will making X his heir. Later, A expressly revoked his first will by executing a second
will containing a revocatory clause. A made Y his heir. The second will was validly made, but on A’s
death, A refused to accept the inheritance. Is the first will still revoked?

Ans: Yes. Therefore , A will be considered to have died intestate, and X cannot inherit, except if he be
also one of the intestate heirs.

If the revoking will is both invalid and ineffective, it is clear that there can be no revocation.
Article 833. A revocation of a will based on a false cause or an illegal cause is null
and void. (n)

This is revocation based on false or illegal cause. As already discussed under Art. 830 ,
this article 833 is one of the aspects of “dependent relative revocation”, or ore
properly , at least for the purpose of this article. “A revocation made under a mistake”.

Example: T made a will making A his heir. T then learned that A was dead, so he
made another will instituting B as heir. If A turns out to be still alive, who inherits?
Ans: A inherits, because the revocation was based on a false cause.

The fact that the cause for the revocation was a false belief or a mistake must be
found on the face of the will or codicil itself, if the revocation is through a will or
codicil.

If the testator states in his second will: “ I am not sure whether A is dead or still
Alive. However , I hereby revoke the legacy to him which I made in my first will”. Is
there a revocation of the legacy?
Ass: Yes. For here, he cannot be said to be proceeding upon an error.

Article 834. The recognition of an illegitimate child does not lose its legal effect, even
though the will wherein it was made should be revoked. (741)
Effect of revocation on the recognition of an illegitimate child.

According to Article 278 voluntary recognition of an illegitimate child may be

done:
1 in a record of birth
2 will
3 statement before court of record
4 any authentic writing

Now then , if the will in which recognition had been made is subsequently
revoked, the recognition still remains valid.

Reason for Art. While a will is essentially revocable, recognition is irrevocable

(unless there be vitiated consent)

Moreover –
1 recognition is not really a testamentary disposition
2 recognition does not wait for the testator’s death to become effective.
 SUBSECTION 7. Republication and Revival of Wills

Article 835. The testator cannot republish, without

reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form. (n)

Republication is the process of re-establishing a will, which

has become useless because it was void, or had been revoked.

How made?
Republication may be made by:
1 re execution of the original will (the original provisions are
copied)
2 execution by a codicil ( also known as implied republication)
Instance where publication of the settlement does not
constitute constructive notice to the heirs.

CUA v. VARGAS
Facts: A notice via publication of the settlement was made.
Issue: Did the publication of the settlement constitute
constructive notice to the heirs had no knowledge of it?
Held: It did not constitute constructive notice to the heirs who
had no knowledge or did not take part in it “because the
same”, in other words of the Supreme Court, is notice after
the fact of execution.

In the abovementioned case, the heirs who actually

participated in the execution of the extrajudicial settlement,
which included the sale to a third person of their pro indiviso
shares in the property.