MODULE 3 orig.

will
Makes dispositions Supplements the
(ARTS. 825-839) without reference to orig. will,
& independent of explaining, adding,
Subsection 5. – Codicils and Incorporation the orig. will altering any of its
by Reference dispositions.
Provides for full Doesn’t revoke
ART. 825. A CODICIL is a supplement or disposition of the entirely the prior
addition to a will made after the execution of testator’s estate; will
a will and annexed to be taken as a part may revoke the
thereof, by which any disposition made in the whole prior will by
original will is explained, added to, or altered. substituting a new
and last disposition
✓ Derived from the Latin word for the same.
“CODEX” Prior will and Will and codicil as
subsequent will—as single instrument;
✓ Literally means: a little code or a little
two separate wills, construed
will (although of course, it may be may be construed together.
larger/longer than a will) independently of
✓ Always refers to the original will each other.
✓ If there’s entirely no reference at all =
considered as new will
CAN AN INVALID CODICIL
✓ an instrument that makes dispositions
REVOKE A WILL?
independent of those in the original
will, without explaining/modifying No. A notarial and holographic will can
such orig. will = new will (not a never be revoked by an invalid codicil.
codicil)
✓ codicil always related to a prior will A valid will can never be revoked,
expressly/impliedly by an invalid codicil.
WHEN IS A CODICIL MADE?
ART. 826. In order that a codicil may be
always made AFTER a will EFFECTIVE, it shall be executed as in
the case of a will.
However, even the codicil may later on
be revoked by another will or codicil. FORMALITIES OF CODICILS
CONFLICT BETWEEN WILL OR There can be:
CODICIL
1.Notarial or Ordinary Codicil
Codicil shall prevail—it being the later
expression of the testator’s wishes (57 2.Holographic Codicil
Am. Jur. Wills, Sec. 608)
A notarial and holographic will may be
SUBSEQUENT CODICIL revoked by either a notarial or
WILL holographic will.
New or separate will Forms part of the
 If a codicil is not executed with the
formalities of a will, said codicil = void
ART. 827. If a will, executed as required
by this Code, incorporate into itself by
reference any document of paper, such
document or paper shall not be
considered as part of the will unless the
ff. requisites are present:
REQUISITES FOR VALIDITY OF
DOCUMENTS INCORPORATED BY
REFERENCE:
1.The document/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 # of pages thereof;
3.It must be identified by CLEAR and
SATISFACTORY PROOF as the
document/paper referred to therein; and
4.It must be SIGNED by the testator and the
witnesses on each & every page, EXCEPT in
case of voluminous books of
account/inventories.
➢ # of pages of voluminous
accounts/inventories must be stated
➢ The EXCEPTION refers only to the
signing of all pages
➢ While not every page has to be
signed, still it’s believed that there
must be a signature on at least
SEVERAL pages thereof for the
purpose of identifying the same as the
documents really referred to.
INCORPORATION OF REFERENCE
➢ Where a will, executed as required by
the Civil Code, incorporates into itself
by reference any document/paper
➢ Purpose: to provide for those cases
when a testator wishes to incorporate
to his will only by reference (i.e.,
without copying the whole thing)
certain documents, papers
➢ Testator saves time and energy.
➢ When, in a will, reference is made to
an inventory of the properties of the
testator, which has thus been made
part of the will, & the will has an
attestation clause that meets the
requirements of the law, no
attestation clause is necessary for the
said inventory,
*G.R.: Only notarial wills can have this
Incorporation by Reference
(Art. 827 (4) speaks of “witnesses”)
ART. 805. Every will, other than a
holographic will, must be subscribed at the
end thereof by the testator himself / by the
testator’s name written by some other person
in his presence & by his express direction, &
attested & subscribed by 3/more credible
witnesses in the presence of the testator & of
one another.
The testator/the person requested by him to
write his name & the instrumental witnesses
of the will shall also sign, as aforesaid, each &
every page thereof, except the last, on the left
margin, & all the pages shall be numbered
correlatively in letters places on the upper
part of each page.
The attestation shall state the # of pages used
upon which the will is written, & the fact that
the testator signed the will & every page
thereof, or caused some other person to write
his name, under his express direction, in the
presence of the instrumental witnesses, & that
the latter witnessed and signed the will & all
the pages thereof in the presence of the
testator & of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted
to them.
*EXCEPTION(S):
1.If a holographic will happen to have at least
3 credible & qualified witnesses = there can
be a proper incorporation by reference.
2.If a holographic will + with no witnesses
refers to a document entirely WRITTEN,
DATED, & SIGNED in the handwriting of
the testator = there can be a proper
incorporation by reference.
PAROLE EVIDENCE- preserves the
integrity of written documents/agreements
May be admitted to prove the identity of the
document as incorporated
Subsection 6. – Revocation of Wills and
Testamentary Dispositions
ART. 828. A will may be revoked by the
testator AT ANY TIME before his DEATH.
Any waiver or restriction of this right is
VOID.
REVOCATION—act of the mind,
terminating the potential capacity of the will
to operate at the death of the testator,
manifested by some outward/visible act/sign,
symbolic thereof
➢ Ambulatory and Revocable
characteristic of a will (during the
testator’s lifetime he can alter,
revise/revoke the will at any time
before his death)
➢ Heirs do not acquire any vested right
to the disposition in a will until
AFTER the testator’s death.
➢ Provisions in a will which are ordered
to effected immediately, even during
the TESTATOR’S LIFETIME, are
all right, provided that t he proper
formalities and requisites are present,
but they are not really testamentary
dispositions.
➢ Not essential for both will & codicil to
be presented for probate at the same
time (Macam vs. Gatmaitan)
➢ Codicil may revoke EXPRESSLY or
IMPLIEDLY a will
➢ Upon revocation, the
will/testamentary disposition intended
to be revoked ceases to exist &
inoperative as if it has never been
written
➢ Will—being a unilateral disposition of
property acquires binding force only
at the death of the testator
➢ No rights are conferred at the time of
a will’s EXECUTION
➢ No title vests in the beneficiary during
the life of the testator.
ART. 829. A revocation done
OUTSIDE of the PH, 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
WHERE THE TESTATOR HAS HIS
DOMICILE at the time; and if the
revocation takes place in this country,
 when it is in accordance to the provisions When the acts referred to are executed
of this Code. before the diplomatic/consular official of the
Republic of the PH. in a foreign country, the
CONFLICTS RULES FOR solemnities established by PH Laws shall be
REVOCATION OF WILLS observed in their execution.

REVOCATION REVOCATION Prohibitive laws concerning persons, their

DONE OUTSIDE DONE IN THE PH acts/property, & those which have for their
OF THE PH object public order, public policy, & good
1.TESTATOR Follow PH Law customs shall not be rendered ineffective by
NOT DOMICILED (Civil Code) w/not laws/judgments promulgated, or by
IN THE PH— domiciled in the Ph. determinations or conventions agreed upon
A.Follow the law of in a foreign country.
place where WILL
WAS MADE; or
ART. 830. No will shall be revoked except in
B.Law of place the following cases:
where testator was
DOMICILED at the 1.By IMPLICATION OF LAW;
time of the
revocation. (Art. 829) 2.By some WILL, CODICIL, or OTHER
WRITING EXECUTED as provided in
2.TESTATOR case of wills; or
DOMICILED IN
THE PH-- 3.By BURNING, TEARING,
A.Law of the PH CANCELLING/OBLITERATING the will
(since his domicile is with the intention of revoking it, by the
here); or testator himself, or by some other person in
his presence & by his express direction.
B.The general rule of
Lex Loci If burned, torn, cancelled, or obliterated by
Celebrationis of the
some other person, without the express
REVOCATION
(Art. 17, NCC); or direction of the testator, the will may still be
established, & the estate distributed in
C.Law of the place accordance therewith, if its contents, & due
where the will was execution, & the fact of its unauthorized
made. destruction, cancellation, or obliteration are
established according to the Rules of Court.

GROUNDS / MODES OF
REVOCATION OF WILLS
ART. 17. The forms and solemnities of
contracts, wills, & other public instruments 1.By IMPLICATION OF LAW
shall be governed by the laws of the country
in which they are executed.
 ➢ Produced by operation of law when
certain acts or events take place after
a will has been made, rendering void
or useless either the whole will/certain
testamentary dispositions therein.
➢ Why is this allowed?
A: Because there may be certain
changes in the family/domestic
relations /in the status of his property,
such that the law presumes a change
of mind on the part of testator.
1.A. (Art. 854) PRETERITION—revokes the
institution of an heir.
The preterition/omission of 1, some/all of
the compulsory heirs in the direct line,
whether living at the time of the execution of
the will/born after the death of the testator,
shall annul the institution of heir; but the
devisees & legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, w/o prejudice to the right of
representation.
1.B. (Art. 1032) ACT OF
UNWORTHINESS—by an heir,
devisee/legatee revokes the testamentary
provisions in his favor.
The following are incapable of succeeding by
reason of unworthiness:
1. Parents who have abandoned their
children or induced their daughters to lead a
corrupt or immoral life, or attempted against
their virtue;
2. Any person who has been convicted of an
attempt against the life of the testator, his or
her spouse, descendants, or ascendants;
3. Any person who has accused the testator
of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
4. Any heir of full age who, having knowledge
of the violent death of the testator, should fail
to report it to an officer of the law within a
month, unless the authorities have already
taken action; this prohibition shall not apply
to cases wherein, according to law, there is no
obligation to make an accusation;
5. Any person convicted of adultery or
concubinage with the spouse of the testator;
6. Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to change
one already made;
7. Any person who by the same means
prevents another from making a will, or from
revoking one already made, or who
supplants, conceals, or alters the latter's will;
8. Any person who falsifies or forges a
supposed will of the decedent.
1.C. (Arts. 935, 936) JUDICIAL ACTION
FOR RECOVERY OF DEBT—revokes a
legacy of credit/remission of debt.
Article 935. The legacy of a credit against a
third person or of the remission or release of
a debt of the legatee shall be effective only as
regards that part of the credit or debt existing
at the time of the death of the testator.
In the first case, the estate shall comply with
the legacy by assigning to the legatee all rights
of action it may have against the debtor. In
the second case, by giving the legatee an
acquittance, should he request one.
In both cases, the legacy shall comprise all
interests on the credit or debt which may be
due the testator at the time of his death.
(870a)
Article 936. The legacy referred to in the
preceding article shall lapse if the testator,
after having made it, should bring an action
against the debtor for the payment of his
debt, even if such payment should not have
been effected at the time of his death.
The legacy to the debtor of the thing pledged
by him is understood to discharge only the
right of pledge.
1.D. (Art. 44, FC) BOTH SPOUSES OF
SUBSEQUENT MARRIAGE ACTED IN
BAD FAITH
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.
1.E. (Art. 50, FC) ANNULLED/VOID AB
INITIO MARRIAGES—revoke testamentary
dispositions made by 1 spouse in favor of the
other.
The effects provided for by paragraphs (2),
(3), (4) and (5) of Article 43 and by Article 44
shall also apply in the proper cases to
marriages which are declared ab initio or
annulled by final judgment under Articles 40
and 45.
The final judgment in such cases shall
provide for the liquidation, partition and
distribution of the properties of the spouses,
the custody and support of the common
children, and the delivery of third
presumptive legitimes, unless such matters
had been adjudicated in previous judicial
proceedings.
1.F. (Art. 63, par. 4. FC) DECREE OF
LEGAL SEPARATION—a spouse may still
inherit from the other spouse, unless found
guilty of any of the grounds of LS.
The decree of legal separation shall have the
following effects:
1.The spouses shall be entitled to live
separately from each other, but the marriage
bonds shall not be severed;
2.The absolute community or the conjugal
partnership shall be dissolved and liquidated
but the offending spouse shall have no right
to any share of the net profits earned by the
absolute community or the conjugal
partnership, which shall be forfeited in
accordance with the provisions of Article
43(2);
3.The custody of the minor children shall be
awarded to the innocent spouse, subject to
the provisions of Article 213 of this Code;
and
4. The offending spouse shall be disqualified
from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in
favor of the offending spouse made in the
will of the innocent spouse shall be revoked
by operation of law.
1.G. (Art. 957) ALIENATION,
TRANSFORMATION / LOSS OF
BEQUEATHED PROPERTY—revokes a C.Subsequent instrument must either contain
legacy of such property. an EXPRESS REVOCATORY CLAUSE or
be INCOMPATIBLE with the prior will.
The legacy or devise shall be without effect:
EXPRESS IMPLIED
1.If the testator transforms the thing When there’s a When the provisions
bequeathed in such a manner that it does not revocatory clause thereof are partially
retain either the form or the denomination it expressly revoking or absolutely
had; the previous will/a inconsistent with
part thereof. those of the previous
2.If the testator by any title or for any cause wills.
alienates the thing bequeathed or any part May be effected by:
thereof, it being understood that in the latter 1.Subsequent will May be effected only
case the legacy or devise shall be without 2.Codicil by:
effect only with respect to the part thus 3.Non-testamentary 1.Subsequent will
alienated. If after the alienation the thing writing executed as in 2.Codicil
should again belong to the testator, even if it case of wills.
be by reason of nullity of the contract, the ART. 831.
legacy or devise shall not thereafter be valid, Subsequent wills
unless the reacquisition shall have been which do not revoke
effected by virtue of the exercise of the right the previous ones in
of repurchase; an express manner,
annul only such
3.If the thing bequeathed is totally lost during dispositions in the
the lifetime of the testator, or after his death prior wills as are
without the heir's fault. Nevertheless, the inconsistent with or
person obliged to pay the legacy or devise contrary to those
shall be liable for eviction if the thing contained in the later
bequeathed should not have been wills.
determinate as to its kind, in accordance with
the provisions of article 928.

2.By SUBSEQUENT INSTRUMENT
➢ Revocation by the Execution of
Another Will or Codicil
REQUISITES:
A.The subsequent instrument must
COMPLY with the FORMAL
REQUIREMENTS of a will; (essential that a
revoking will = a valid will)
B.Testator must possess TESTAMENTARY
CAPACITY;
DOCTRINE OF CONDITIONAL
REVOCATION (DEPENDENT
RELATIVE REVOCATION—
A testator who revokes his will with a present
intention of making a NEW ONE
immediately, and as a SUBSTITUTE, & the
new will is NOT MADE, or if MADE, fails
to take effect for any reason = presumed that
the testator preferred the old will than
INTESTACY.
The old one will be admitted to probate in
the absence of evidence overcoming the
presumption provided that contents can be
ascertained.
 ➢ TEARING—remove; torn
The revocation made in the subsequent will ➢ CANCELLING—to decide not to
must indeed be a definite one. A mere conduct, destroy
declaration that sometime in the future, the
➢ OBLITERATING—remove utterly
1st would be revoked, is not enough. There’s
nothing wrong in making the revocation from recognition/memory
conditional, that is, revocation takes place
AS AN OVERT ACT TO REVOKE:
only of the condition is fulfilled.
➢ BURNING—sufficient even if small
3.By DESTRUCTION OF THE WILL part of the instrument be burned;

➢ Revocation by an Overt Act Even the entire handwriting be

untouched;
BTCO = Burning, Tearing, Cancelling,
Obliterating If thrown in the fire with intent to
REQUISITES: revoke, burned in 3 places without
scorching the writing = revoked even
A.There must be an OVERT ACT specified if unknown to the testator, someone
by law; got it

B.COMPLETION of at least the

If accidentally burned = nooo
SUBJECTIVE PHASE of the overt act;
revocation; no intent to revoke
C.ANIMUS REVOCANDI (intent to
revoke) Envelope of the will is burned + will
itself untouched = noooo revocation
D.Testator at the time of revoking must have even if there be intention; no overt
CAPACITY to make the will. act of burning the will.
E.Performed by the testator himself/by some
➢ TEARING—slight tear sufficient to
other person in his presence & by his express
revoke;
direction

UNAUTHORIZED DESTRUCTION— The greater the degree of tearing the

A will may still be proved as lost or = the greater the evidence of animus
destroyed. However this is possible only if revocandi
the will is attested; if the will if holographic, it
cannot be probated if it is lost, even if the
Tearing in 3 pieces = sufficient
loss/destruction was unauthorized.

Includes cutting (a clause may be

IN ITS ORDINARY SENSE: revoked by cutting the same from the
will)
➢ BURNING—being on fire; affecting
with/as if with heat.
 Mere act of crumpling or removal of
fastener = noooo intent to revoke
Tearing of signature alone = revoked
provided that other requisites are
present, (signature goes to the very
heart of the will)
HUMPTY DUMPTY RULE—once
a will has been torn & revoked it can
no longer be revived by putting the
pieces together.
➢ CANCELLING—effected by
diagonal/horizontal lines, crisscrosses,
or the word: “cancelled” written upon
the face of the will.
Marks made upon a will by the
testator are effective as a revocation
by cancellation regardless of their
depth, faintness/other characteristics,
if they were placed there for the
purpose of cancelling the will.
Cancellation of the signature of
witnesses to a Holographic will leaves
the will valid, since no witnesses are
after all required.
➢ OBLITERATING—erasing/scraping
off any word/disposition, which the
testator intends to revoke.
Renders the will illegible.
Revocation by CANCELLING /
OBLITERATING revokes a will,
totally/partially.
If all parts are cancelled/obliterated, or if
the signature if cancelled/obliterated, the
whole will = revoked
If the will is mutilated by ERROR = no
animo revocandi + no revocation
DOCTRINE OF PRESUMED
REVOCATION—in the absence of other
evidence, it shall be presumed that the
testator destroyed the will with animus
revocandi:
1.Where the will cannot be found following
the DEATH of the testator & it’s shown that
it was in the testator’s possession when last
seen;
2.Where the will cannot be found following
the DEATH of the testator & it’s shown that
the testator had READY ACCESS to it; and
3.Where it’s shown that the will was in the
CUSTODY of the testator AFTER its
execution, and subsequently, it was found
among the testator’s effects after his death in
such a state of mutilation, cancellation,
obliteration as represents a sufficient act of
revocation within the meaning of the
applicable statute.
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.
➢ There’s a difference bet. an
INVALID WILL and a VALID
BUT INEFFECTIVE WILL
➢ Invalid revoking will cannot revoke.
➢ A valid but ineffective will = can
revoke.
 ➢ If the revoking will both invalid +
ineffective = no revocation
ART. 833. A revocation of a will based on a
false cause or an illegal cause is null and void.
➢ Revocation by Mistake or Revocation
on False or Illegal Cause
➢ False or illegal cause must appear
upon the face of the will.
➢ Where the facts alleged by the
testator were peculiarly within his
knowledge, or the testator must have
known the truth of the facts alleged
by him, it does not matter whether
they are true/not, the revocation is
absolute.
ART.834. The recognition of an illegitimate
child does not lose its legal effect, even
though the will wherein it was made should
be revoked.
➢ Revocation on the Recognition of an
Illegitimate Child
➢ Applicable only if the recognizing will
is extrinsically valid—otherwise there
would be no recognition that can be
revoked.
➢ Where a will is essentially revocable,
RECOGNITION is irrevocable
(unless there be vitiated consent)
➢ Recognition is not really a
testamentary disposition.
➢ Recognition does not wait for the
testator’s death to become effective.
ART. 278 Recognition shall be made in
the record of birth, a will, a statement
before a court of record, or in any
authentic writing.
Subsection 7.—Republication and Revival
of Wills.
ART. 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.
ART. 836. The execution of a codicil
referring to a previous will has the effect
of republishing the will as modified by
the codicil.
REPUBLICATION—process of re-
establishing a will, which has become
useless because it was void/had been
revoked
It is 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/executes a
codicil to his will.
HOW IS REPUBLICATION MADE?
1.EXPRESS or REPUBLICATION BY
RE-EXECUTION (Art. 835)
➢ Re-execution of the original will
➢ Cures the defects
2.IMPLIED/CONSTRUCTIVE or
REPUBLICATION BY REFERENCE
(Art. 836)
➢ Executes a CODICIL to his will
➢ Codicil revives the previous will
➢ Old will is republished as of the date
of the codicil, and makes it effective,
as it were, from the new & later date.
➢ A will republished by a codicil is second will does not revive the first will,
governed by the STATUTE enacted which can be revived only by another will
subsequent to the execution of the or codicil.
will, but which was operative when
the codicil was executed ➢ A void will or a revoked one is a
nullity, devoid of any effect, and is
➢ To republish a WILL VOID as to its
useless.
form, all the dispositions must be
reproduced/copied in the ➢ The only ways of giving effect to it
new/subsequent will are:
➢ To republish a WILL VALID as to 1.Republication (abovementioned; two
its form, but already revoked, the kinds—re-execution & reference by a codicil
execution of a codicil which makes
reference to the revoked will is 2.Revival-- Restoration to validity of a
sufficient. (Mere reference is enough, previously revoked will by operation of
no necessity of reproducing all the law.ie.,
previous dispositions)
Article 837. If after making a will, the testator
REPUBLIC REVIVAL REVOCAT makes a second will expressly revoking the
ATION ION first, the revocation of the second will does
not revive the first will, which can be revived
Takes place Restoratio An act of the only by another will or codicil.
by an act of n to mind,
the testator; validity of terminating
a the potential Article 854. The preterition or omission of
Corrects previously capacity of one, some, or all of the compulsory heirs in
extrinsic and revoked the will to the direct line, whether living at the time of
intrinsic will by operate at the execution of the will or born after the
defects. operation the death of death of the testator, shall annul the
of law. the testator, institution of heir; but the devises and
manifested legacies shall be valid insofar as they are not
Takes by some inofficious.
place by outward/visi
operation ble act/sign, If the omitted compulsory heirs should die
of law. symbol before the testator, the institution shall be
effectual, without prejudice to the right of
Restores a representation.
revoked
will.
EXPRESS IMPLIED
REVOCATION OF REVOCATION OF
FIRST WILL FIRST WILL
ART. 837. If after making a will, the Article 837. If after Where there is
testator makes a second will expressly making a will, the merely an
testator makes a inconsistency
revoking the first, the revocation of the
second will expressly between 2 wills, but
revoking the first, the there’s no the allowance of wills after the testator's a
revocation of the REVOCATORY death shall govern.
second will does not CLAUSE, upon
revive the first will, destruction of the 2nd The Supreme Court shall formulate such
which can be revived will, the 1st is additional Rules of Court as may be
only by another will automatically necessary for the allowance of wills on
or codicil. REVIVED, petition of the testator.
regardless of the
intention of the Subject to the right of appeal, the allowance
testator, provided of the will, either during the lifetime of the
that the first will has testator or after his death, shall be conclusive
been preserved as to its due execution.
undestroyed.
PROBATE—act of proving before a
competent court the due execution of a will
If the revoking will be disallowed because it’s by a person possessed of testamentary
not valid, it can’t produce the effect of capacity, as well as the approval thereof by
annulling the previous will. said court.

PRINCIPLE OF INSTANTER ➢ A.k.a “probation”, “legalization”,

When there’s an express revocation of the 1st
will by the 2nd will, the 3rd will cannot revive
the 1st will. Express revocation is always final
and executory.
“protocolization”, “authentication”
(Manahan vs. Manahan)
It is a special proceeding mandatorily for the
purpose of establishing the validity of a will.

The revoking clause in the 2nd will is not
testamentary in character, but operates to
revoke the prior will upon the execution of
the will containing it, hence, the revocation of
the 2nd will doesn’t revive the 1st will which has
already become a nullity.
Subsection 8.—Allowance and
Disallowance of Wills
ART. 838. No will shall pass either real or
personal property unless it is proved and
allowed in accordance with the Rules of
Court.
➢ Probate is one thing, the validity of
the testamentary provisions is
another.
➢ Probate decides the execution of the
document and the testamentary
capacity of the testator.
➢ A final judgment on probated will,
albeit erroneous, is binding on the
whole world.
WHAT DOES A PETITION FOR
PROBATE MUST STATE?
1.Fact that the testator is dead, and place &
time of said death

The testator himself may, during his lifetime, 2.That the deceased left a will, copy of which
petition the court having jurisdiction for the has to be attached to the petition
allowance of his will. In such case, the
pertinent provisions of the Rules of Court for 3.That the will was executed in accordance
with legal requirements
4.Names, ages, addresses of the executor &
all interested parties/heirs
5.Probable value & character of the property
of the estate
6.Name of the individual whose appointment
as executor is being asked for
7.If the will has not been delivered to the
court, the name of the person who is
supposed to have the will in his custody.
KINDS OF PROBATE: (when is it
commenced?)
1.ANTE MORTEM—probate during the
testator’s lifetime; by the testator himself.
After a will has been probated during the
lifetime of the testator, it doesn’t necessarily
mean that he can’t alter/revoke the same
before his death.
Should the testator make a new will, it would
also be allowable on his petition, & if he
should die before he had a chance to present
such petition, the ordinary probate
proceedings after the testator’s death would
be in order.
PROCEDURE FOR ANTE MORTEM
PROBATE
1.Testator himself petitions the competent
court for the probate of his will
2.He follows the procedure for the POST
MORTEM of ordinary probate, except
insofar as the Supreme Court may impose
additional rules for ante mortem probates
2.POST MORTEM—probate after the death
of the testator; by any person interested in
the estate.
SALIENT POINTS IN PROCEDURE OF
THE POST MORTEM PROBATE
1.Probate Proper—deals with extrinsic validity
of the will
2.Inquiry into the intrinsic validity and
distribution of the property.
➢ At any time AFTER the testator dies,
the will may be presented for probate
by any executor, devisee, legatee,
interested person (Rule 76, Sec. 1
ROC)
➢ Court can motu propio set the time &
place for proving the will delivered to
it.
➢ An expressly revoked will is NOT
admissible to probate
➢ However, a revoked will may of
course be admitted to probate, if the
subsequent will that had allegedly
revoked it, is proved to be VOID and
is disallowed.
NECESSITY OF PROBATE
1.Essential because under Art. 838, No will
shall pass either real or personal property
unless it is proved and allowed in accordance
with the Rules of Court.
➢ Even if only 1 heir has been
instituted, there must still be the
JUDICIAL ORDER by
ADJUDICATION.
In PROBATE PROCEEDINGS, the court
in Timbol vs. Cano held that it—
1.Orders the probate proper of the will
2.Grants letters testamentary/letters with a
will annexed
3.Hears and approves claims against the
estate
4.Orders the payment of the lawful debts
5.Authorizes the sale, mortgage, or any other
encumbrance of real estate
6.Directs the delivery of the estate or
properties to those who are entitled thereto.
2.So essential is probate that a provision in a
will stating that “the will shall not be
presented before the courts” is a VOID
PROVISION, for a person cannot by his
actuations deprive a competent court of its
jurisdiction.
3.Probate is a proceeding IN REM.
➢ Cannot be dispensed with or
substituted by any other proceeding,
judicial or extrajudicial without
offending public policy
➢ Requiring publication, among other
things
4.The right of a person to dispose of his
property by virtue of a will may be rendered
NUGATORY (of no consequence)
5.Because of absent legatees and devisees, or
such of them as may have no knowledge of
the will, could be CHEATED of their
inheritance thru the conclusion of some of
the heirs who might agree to the partition of
the estate among themselves to the exclusion
of all others.
6.Even a VOID will, or one that has been
REFUSED for PROBATE (approval by the
court) may in certain cases give rise to a
NATURAL OBLIGATION.
Article 1430. When a will is declared void
because it has not been executed in
accordance with the formalities required by
law, but one of the intestate heirs, after the
settlement of the debts of the deceased, pays
a legacy in compliance with a clause in the
defective will, the payment is effective and
irrevocable.
The paying intestate heir must have
KNOWN of the defect in the will, or of its
being VOID, otherwise = NO NATURAL
OBLIGATION but a case of SOLUTIO
INDEBITI (undue payment) in which
recovery may be had.
The heirs concerned may
EXTRAJUDICIALLY AGREE to the
partition the property among them, even
though such partition is not in accordance
with the provisions of the will.
If any heir isn’t included in the partition, and
feels aggrieved, his remedy = ask for the
PROBATE of the will
Even if there are NO DEBTS, if the heirs
desires that transmission of the property to
them by virtue of the will, the will must first
be probated, and the provisions in the will
must NOT be disregarded unless said
provisions are contrary to law.
Even if a will is never probated, prop. may be
transmitted if a partition agreement is entered
into, the provisions of which are based on the
will. (Chua vs. Court of Appeals)
Where part of estate is NOT
DISTRIBUTED YET, recourse =
MOTION FOR EXECUTION or an
ACTION FOR RECONVEYANCE. (not to 6. If the testator acted by mistake or did not
reopen probate proceedings) intend that the instrument he signed should
be his will at the time of affixing his signature
A probate judgment long closed cannot be thereto.
attacked by a mere MOTION FOR
RECONSIDERATION) GROUNDS FOR DISALLOWANCE OF
WILLS:
REVOCATION DISALLOWANCE
Voluntary act of the Judicial decree; VIOLENCE—in order to wrest consent,
testator; serious/irresistible force is employed upon
Must always be for a the testator. (Art. 1335)
With or without legal cause
cause; INTIMIDATION—when the testator is
Always total except: compelled by a reasonable & well-grounded
May be partial/total when the ground of fear of an imminent & grave evil upon his
fraud/influence for
person/property, or upon the
Take place during example affects only
the LIFETIME of certain portions of person/property of his spouse, descendants,
the testator the will or ascendants to execute the will. (Art. 1335)

Usually invoked after MISTAKE—mistake of execution which may

the testator’s death. either be:

1.a mistake as to the IDENTITY or

ART. 839. The will shall be disallowed in
any of the following cases:
1.If the formalities required by law have not
been complied with;
2. If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
3. If it was executed through force or under
duress, or the influence of fear, or threats;
4. If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
character of the instrument which he signed;
2.mistake as to the CONTENTS of the will
itself.
FRAUD—if by misrepresentation &
deception the testator is led into making a
will different from that he would have made
but for the misrepresentation or deception.
UNDUE INFLUENCE—when a person
takes improper advantage of his power over
the will of another, depriving the latter of a
reasonable freedom of choice. (Art. 1337)

5. If the signature of the testator was

procured by fraud;