Witnesses to wills

Qualifications for witnesses

- sound mind
- 18 yrs of age of more
- able to read and write
- not blind deaf or dumb
- domiciled in the phiilppines
- must not have been previously convicted of falsification, perjury or false testimony
Remember 823
- if there is a legasee or devise in a will given to one of the witnesses to that will or
given to his parent or spouse or child, that legasee or devise is considered void,
inso far as that witness, his spouse, his parent, child or anyone claiming under
them is concerned, unless there are 3 other competent witnesses to the execution
of the will
if A B and C are the witnesses to the execution of the will of Mr. X,
Mr X,
-

gave A a legasee of 50M

will is valid
validity is not affected
A remains a qualified witness.
BUT HE WILL NOT BE ABLE TO GET THAT LEGASSES because under art 823, that
legassee is considered void
OBVIOUS PURPOSE: to remove any temptation on the part of the witnesses who
might have been given something under the will to testify falsely

Lets assume we don't have art 823

A, one of the witnesses has been given 50M as legasee
On the witness stand, Mr A was asked:
O Mr. A, where were you when the testator was signing the will?
(A was in the comfort room while testator was signing which means, testator did not sign
will in the presence of Mr. A if that is established as fact, will will be disallowed)
If the will was disallowed, Mr A will not get that legacy of 50M, if will is void
Chances are A WILL LIE SO AS NOT TO LOSE HIS LEGASEE
With Art. 823, LAW is in effect saying: Magsabi ka na ng totoo kasi di mo rin naman
makukuha yan, might as well tell the truth
If there are three other witnesses aside from you, the will will be valid swerte ka!
Supposing instead of being given a legassee or devise, one of the 3 instrumental witness
to the will is an instituted heir
WILL: I give Mr. A, 1/8 of my estate A is one of the 3 instrumental witnesses, will A be
able to get 1/8? Atty. Navarro: NO. Even if no specific provision saying so.
Heir will have an economic interest in the allowance of the will hence the temptation to
testify falsely will still be there
The enumeration in article 823 is exclusive:

- Witness, his spouse, parent or child

Grandparents? VALID
CODICILS and INCORPORATION BY REFERENCE
Codicil
a supplement or addition to a will whereby the provisions in an earlier will are
added to modify or alter or explain
only make codicil if you already have a will
the provisions of a codicil presupposes that there is a previously existing will which
you then supplement add or modify thru codicil
Formalities? SAME FORMALITIES AS IN THE CASE OF WILLS
1. Notarial Codicil or a
2. Holographic Codicil
- If the will which you want to alter, supplement or modify is notarial, it does not
necessarily follow that the codicil should also be notarial
- A notarial will can be modified by a holographic codicil
- A holog can me modified by a notarial codicil
INCORPORATION BY REFERENCE
- merely for the convenience of the testator
- sangkatutak/sandamakmak ang pagaari
- if they already have existing list of properties, descriptions or invesntories, they
don't have to have them reproduced in their will, SIMPLY INCORPORATE THEM BY
REFERENCE. - Art 827
- REQUISITES:
1. Paper of document to be incorporated by reference must already be in existence at
the time of the execution of the will
2. The will must clearly describe the paper or document stating among other things the
number or pages thereof
3. It must be established by clear and satisfactory evidence as the paper or document
referred to in the will
4. CONTROVERSIAL: Paper or document must be signed by the testator and the
witnesses on each and every page, EXCEPT IN THE CASE OF VOLUMINOUS BOOKS OF
ACCOUNTS AND INVENTORIES
Question: Can there be INCORPORATION BY REFERENCE IN A HOLOG WILL?
Answer:
1st viewWALA. NO WITNESSES E. E kung meron? Surplusage witnesses on a
holographic will THEN ITS POSSIBLE
2nd view-while it is possible to have incorporation by reference in a
holographic will, it is necessary that the paper or document should also be entirely in the
handwriting of the testator. Because if what is incorporated by reference in a holog will is
a paper or document which is not in the handwriting of the testator upon incorporation to
borrow the language of 827 that paper/document will be taken as part of the will and
if so, yet it is not in the handwriting of the testator, it may affect even the validity of the
holographic will itself

Art 827 incorporation by reference should never be used for the purpose of
incorporating testamentary provisions
- testamentary provisions must always be contained in the will itself
Ex. Bored ka, nagtype ka provisions, 10 years later you decide to make a will,
Atty: o sige ano ang provisions
Testator: hindi. Ito na. naitype ko na to 10 yrs ago
Atty: o sige lets just incorporate it by reference
NOT VALID. INVALID.
TESTAMENTARY PROVISIONS MUST BE CONTAINED IN THE WILL ITSELF. NEVER
INCORPORATE THEM BY REFERENCE.

REVOCATION OF WILLS
-

right to revoke, basic prerogative of a testator

will is essentially revocable, ambulatory in character
as long as the testator lives, he can revoke his will anytime even without reason
all that is necessary is he wills it/intends to revoke/actually revok

Valid Ways to Revoke the Will

1. By implication of law/By operation of law
2. By executing another will or codicil/other writing executed as in the case of which
3. By physical act of destruction coupled with intent to revoke ANIMUS REVOKANDI
4 PHYSICAL ACTS OF DESTRUCTION (specified/exclusive)
1.
2.
3.
4.

Burning
Tearing
Cancelling
Obliterating

1. BY IMPLICATION OF LAW
- scattered all over provisions of civil code
- EXAMPLES:
IN CASE OF LEGAL SEPARATION
- the provisions in the will of an innocent spouse in favor of the guilty spouse are
revoked by operation of law
- The REVERSE is not true, The provisions in the will of the guilty spouse in favor of
the innocent spouse are not revoked, only the provisions in the will of the innocent
spouse in favor of the guilty spouse
IN CASE OF PRETERITION
- the revocation of the institution of heirs
- if there is preterition, brought about by the complete omission of one some or all of
the compulsory heirs in the direct line, that results in the annulment of the
institution of heirs

IN CASE OF A LEGASEE OF A CREDITOR REMISSION? OF A DEBT

- and testator brings an action against the debtor, that results in the revocation of
the legasee of credit or remission of a debt
IN CASE OF TRANSFORMATION/ALIENATION/LOSS OF THE THING (Art 957)
- legasee or devise becomes ineffective
IN CASE THERE IS UNWORTHINESS (Art 1032)
- unworthy heir cannot inherit, provisions rendered ineffective
WHEN BOTH SPOUSES CONTRACT THE MARRIAGE IN BAD FAITH
WHEN MARRIAGE IS DECLARED VOID AB INITIO/VOID/ANNULED (Art 50)
- instances of legal provisions which operate to revoke or render ineffective certain
testamentary provs
2. BY ANOTHER WILL
- if you execute another will expressly revoking a previous will then the prev will is
revoked
- if there are inconsistencies between an earlier will and a subsequent will then there is
implied revocation
3. BY PHYSICAL ACTS OF DESTRUCTION
- burning, tearing, cancelling, obliterating
- there must always be the corresponding INTENT TO REVOKE
- REVOCATION NOT VALID WITHOUT INTENT
- conversely, ALL INTENTION WITHOUT PHYSICAL ACTS OF DESTRUCTION not valid
revocation
ex: testator declares to neighbor I AM REVOKING THIS WILL. Even spits on the will, but
collapsed and died. REVOCATION NOT VALID
If the testator with all due solemnity gathers his friends and neighbors and says I AM
REVOKING THIS WILL, THIS IS NO LONGER A VALID WILL! Buries to the ground. Valid
revocation? NO.
SC ruled on case: CRUMPLING + THROWING, sufficient valid revocation
To revoke a will by burning,
- YOU DON'T HAVE TO COMPLETELY BURN IT. Even if only the sides/corners/edges were
burned, still readable, SUFFICIENT REVOCATION
To revoke a will by tearing,
- SLIGHTEST TEAR revokes the will, as long as it is coupled with the necessary intent to
revoke. (shredder, pair of scissors)
To revoke a will by cancelling,
- HOW? by crossing out the lines.

- How different from OBLITERATION? In obliteration words can no longer be

read/binubura CANCELLATION? Simply cross out (crisscross,spirals)
- Simplest way CROSSING OUT/CANCELLING signature at the end of the will (striking
the heart of the will, operating to revoke the entire will)
It is entirely possible that the testator may have made several copies of his will.
Ex. Entrust to his lawyer or friends for safekeeping
Q: If he wants to revoke does he have to retrieve all copies?
A: NO. Simply revoke the copy he has.
Q: Supposing testator changes his mind while revoking his will?
Ex. He institutes you as heir, you visited him one time, over coffee you discussed,
disagreed at a certain point, testator got his will, waived in front of you YOU ARE NOT
GOING TO INHERIT A SINGLE CENTAVO FROM ME! he tore the will, threw it you
apologized pls don't revoke the will sige ipaste natin together.VALID? NO!
- BECAUSE WHEN THE TESTATOR CHANGES HIS MIND, THE ACT IS ALREADY
SUBJECTIVELY COMPLETE.
- SUBJECTIVELY COMPLETE: throwing the will to the floor *consumatum est
- Cannot restore validity by simply pasting together
Q: Supposing while in the process of revoking his will, testator tore the will once, twice,
thrice about to torn it the fourth time, then you pleaded so he stops, PASTE THE PIECES
TOGETHER? If facts prove that this is what exactly happened, then YES!
Why? NOT YET SUBJECTIVELY COMPLETE. He intends to tore it the fourth time but not
completed. SO NO VALID REVOCATION YET
THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION
- If the testator revokes a will with the present intention of making a new one
immediately and as a substitute and he is unable to make the new will OR if he is able to
make the new will, the same fails to take effect for any reason or cause, it is presumed in
the absence of evidence to the contrary, that the testator would have preferred his old
will to intestacy. In other words: WHEN THE TESTATOR REVOKES HIS WILL UNDER THIS
DOCTRINE, HE DOES SO CONDITIONALLY; THAT A NEW WILL WILL BE EFFECTIVE
(presumed, he would rather die with the old will than to die intestate)
MOLO vs MOLO
- man, made his first will in 1918, he gave entire estate to his wife, in 1939 he made
another will. In this second will, he expressly revoked his earlier 1918 will, but
same, gave the bulk of estate to his wife
- he died, wife presented 2nd will. UNFORTUNATELY, PROBATE COURT DISALLOWED
2ND WILL non compliance with formalities of will
- widow returned asking instead that husbands first will be probated but cannot
present the original copy, only duplicate
- oppositors: NASAAN ANG ORIGINAL NYAN!? Destroyed na ano! He revoked that by
destroying the original
SC: even assuming that that is true, that husband revoked the 1918 original will,
NONETHELESS UNDER THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION, it is
presumed that the revocation of the 1918 will is conditioned upon the effectivity of the
1939 will. Since the 1939 will failed to take effect, it is presumed that the husband would
have preferred his old 1918 will

SOMETIMES REVOCATION MAY BE PRESUMED (depending on the circumstance)

- ex: there is evidence to the effect that the will was in the possession of the
testator, after death, will is found among his effects in a tattered and torn
condition, presumption is that it was revoked, or if after death will could not be
found but he was in possession, presumption is that testator revoked his will
ART 833. A REVOCATION BASED ON A FALSE OR A ILLEGAL CAUSE IS NOT VALID/VOID
*before you can invoke art 833, it is necessary that the cause for the revocation must be
stated in the will. If the testator simply revokes a will, even with cause that is false or
illegal, but it was not stated in the will itself, NO BASIS.
Ex. Testator instituted MR. X as HEIR to bulk of his estate in yr 1995, 10years later, 2005
Testator heard that X is already long dead. So thinking his friend X was already dead,
makes another will in 2005. In that 2nd will, I HEREBY REVOKE MY 1995 WILL. After
testators death, X appears and learns that the 1995 will has already been revoked and
was told that the only reason why it was revoked was because testator thought that X
died.
Q: Can X question validity of revocation?
A: NO.
No cause stated. There is no basis stated in order to invoke Art. 833
EVEN IF WILL IS REVOKED, ANY RECOGNITION OF AN ILLEGITIMATE CHILD CONTAINED IN
THAT WILL IS NOT AFFECTED BECAUSE RECOGNITION OF AN ILLEGITIMATE CHILD IS NOT
REALLY IN THE NATURE OF A TESTAMENTARY DISPOSITION, WHICH IS SUBJECT TO THE
SOLE WILL OF THE TESTATOR. RECOGNITION CREATES STATUS. And therefore such
recognition should create an element of stability in so far as the status of individuals is
concerned
REPUBLICATION AND REVIVAL
Republication is brought about by the act of the testator.
Revival is brought about by the law.
2 WAYS OF REPUBLISHING A WILL
1. You can republish a will by simply executing a codicil to that will. If you do that, the
will is republished as modified by the codicil.
2. You can also republish the provisions contained in a previous will by reproducing
those provisions in a subsequent will. As a matter of fact if the previous will is void
as to form, the only way of republishing the provisions contained in that will is by
copying the provisions in that will in a new will. You cannot republish the provisions
contained in a will that is void as to form by simply executing a codicil to that will.
EFFECT OF REPUBLICATION
- a will which is republished by a codicil speaks as of the date of the codicil. It is as if
the will was made at the time of the execution of the codicil legal consequences
LEGAL consequences

1. Testator made a will in 1985, he makes another will in 1990, let us further assume that
the provisions of the will are inconsistent with each other IRRECONCILABLE
Q: IF THE TESTATOR DIES, WHICH WILL WILL BE GIVEN EFFECT?
A: 1990! It is the later expression of the testators intent.
2. In 1992, the testator made a codicil he said: I HEREBY MODIFY THE FOLLOWING
PROVISIONS IN MY 1985.
Q: What is the effect?
A: The mere execution of the 1992 codicil, will have the effect of republishing the 1985
will as modified by the codicil. This means it is as if the 1985 will was actually made in
1992.
Assuming there is still irreconcilable conflicts, between the provisions of this will and the
1990 will.
Q: Which will be given effect?
A: 1985 WILL NA. Because it is as if it is the latest expression of the testators will, due to
republication. It is as if, this will as modified by the 1992 codicil was actually made in
1992. Therefore, it will be later than the 1990 will.
REMEMBER HOWEVER:
REPUBLICATION THRU A CODICIL NOT POSSIBLE IF THE EARLIER WILL IS VOID, BECAUSE
OF FORM.
EX. If the 1985 will is void because of failure to comply with the formalities, the
provisions in this will can only be republished by copying them in a subsequent will of
codicil.
If the testator made his 1985 will in this case, when he was only 16 years old, then in
1992, he makes a codicil to the 1985 will.
Q: Will the 1985 will be republished?
A: YES. WHY? BECAUSE IT IS NOT VOID AS TO FORM BUT AS TO CAPACITY. Valid
republication
Pero kung kunwari, walang attestation clause. Defect as to form. Ah di pwede
republication through codicil. Must copy to a subsequent will.
REVIVAL ART 837
How was the first will REVOKED BY THE SECOND WILL
1. If first will is EXPRESSLY REVOKED BY 2ND WILL Forget about revival. Even if the
2nd will is itself revoked by a third will, the first will will not be revived.
2. If however, the first will is simply IMPLIEDLY REVOKED by the 2nd will, ung
INCONSISTEN LANG ANG PROVISIONS, then the moment the 2nd will is revoked by a
3rd will, the first will will be revived