CIVIL LAW 1 REVIEW – 4/30/2017 - 5th meeting

FORMALITIES, CODICIL, REVOCATION

CONTINUATION 1:25:06

EXCEPTION: Lex loci celebrationis will not apply in case of joint wills executed by citizens of the
Philippines. The law prohibits the execution of the joint wills regardless of the place of its execution.

Formalities:
2 COMMON REQUIREMENTS IN HOLOGRAPHIC AND ORDINARY WILLS
1. They must both be in writing
2. Both must be executed in the language/dialect that is known to the testator otherwise the will is
void. (Need not be stated in the attestation clause- whether or not this fact is stated in the attestation
clause or not, it will not prevent the presentation of evidence that the language is not known to the
testator)

There is no requirement that the will must also be in a language/dialect of the witnesses except that
the law only provides that if the attestation clause is not in a language/dialect known to the witnesses,
the same must be interpreted to them in a language that they can understand.

Formalities peculiar in an ordinary/notarial will:

1. It must be subscribed at the end thereof by the testator. This requirement pertains only by the
testator not by the witnesses. This is to signify the logical end of the will to avoid any other insertion of
testamentary disposition.

The signature of the witnesses at every page thereof is only for identification to avoid fraud or
substitution of the will. So even if they will sign at the end of the will at the left hand margin that will be
okay.

2 ways to subscribe to his will:

1. Sign it personally –
- Any mark that is considered as his usual, habitual or customary signature will be sufficient.
- Or any of the ways he signs his name
- In case of abbreviated marks like an X mark, Question mark, exclamation mark, the Supreme
Court held that it is not considered a sufficient signature in itself UNLESS there is proof that it
is the usual, customary or habitual signature of testator or one of the ways in which he signs
his name. During the probate of the will, there must be introduction of evidence proving that
that it is the usual, customary or habitual signature of testator or one of the ways in which he
signs his name otherwise the will is void

- In case of thumbprint or thumb mark, according to the Supreme Court, that is a sufficient
signature. There is no need to explain, why the testator resorted to that kind of signature. The
only issue is that was the testator intends it to be his signature and that it was done voluntarily.

2. Cause another person to write his name –

- To be valid, the same must be done through the express direction of the testator and the
signing was done in the presence of the testator and the three instrumental witnesses and the
third person must write the testator’s name not his own.
 - Such fact is required to be stated in the attestation clause in the absence of any statement in
the attestation clause that the testator caused someone to write his name through the express
direction of the testator and the signing was done in the presence of the testator and
witnesses, the will would become invalid. The will shall only be the evidence to prove that the
testator resorted to that kind of signature.

- The act of the testator to cause someone to write his name under his express direction in the
presence of testator and witnesses is an observation to be made by the witnesses and the only
evidence is the attestation clause

3. The witnesses are required to attest and subscribed to the will; the law requires that there must be
at least three witnesses. As to the number of witnesses – mandatory, short of the number, the will
would become invalid.
- The fact that one of the witnesses is the notary public is not a disqualification to become a
witness. If the third witnesses acted as a notary public, the will is void, not because of the
failure to comply with the number of witnesses but because of failure to comply with the
requirement of acknowledgment. He cannot split his personality in such as a way that he will
be appearing before himself to acknowledge the will, Supreme Court held in Cruz vs Villazo.

- The fact that the witness will be benefited by the will, either he was named as an heir or was
given a legacy or devise or to his spouse, child or parent, that is not a disqualification to
become a witness. It will not affect the validity of the will. Such benefit is invalid. The
testamentary disposition is invalid except if there will be three other qualified witnesses.

Attestation and subscription of the three witnesses are two separate requirements with
different purposes.

Subscription – the purpose is simply to identify the pages of the will to avoid any substitution on the
part of the witnesses. This is a mandatory requirement.

- If one of the pages is not signed by one of the witnesses, the will is invalid except if the will was
executed in several copies. With regard to the place where the signature is only directory and can be
placed anywhere.

Attestation clause – if the page purely contains the attestation clause only the signature of the
witnesses are only required to appear there. This attestation is the act solely of the witnesses.

- What is important is that witnesses must sign the attestation clause after the recital of the facts. It
cannot be signed on the side.

- Attestation clause is technically not part of the will. The will are those pages containing the
testamentary dispositions. The other parts are only physically part of instrument but not technically
part of the will.

Acknowledgment – act of the notary public and not required to be signed by testator nor the
witnesses. Only the signature of the notary public is required because this is not part of the will but
only part of the instrument.

The requirement that all the pages be signed by testator and witnesses is mandatory and required to
be recited in the attestation clause. If there is compliance with the requirement, all the pages were
signed by the four but no recital in the attestation clause; the will is not invalid because it can be
proved by the mere examination of the will itself. The rule on Doctrine of liberal interpretation (Article
809) can be applied.
The issue of whether the signatures are really the signature of the testator and witnesses can be
proved by evidence outside the will or by evidence aliunde.

4. The requirement that all the pages must be numbered correlatively.

- This is mandatory requirement. Failure to comply will invalidate the will.

- It must be numbered correlatively in LETTERS, is just a directory and would not invalidate the
will.

- The number of pages is also required to be stated in the attestation clause, if none, the will is
invalid EXCEPT if the number of pages is supplied by the instrument itself. It can have clear
recital of number of pages in acknowledgment of portion. The rule in Article 809 can be
invoked because after all the compliance of the requirement is supplied by the instrument
itself.

5. The fact that the witnesses and testator are required to sign the will in every pages of the will in the
presence of one another is required to be stated in the attestation clause.
- If there is no recital of such fact, there can be no other evidence from the will the will prove
compliance of that requirement because it is a mental observation that should be in writing.

- Article 809 can be invoked if compliance of the law can be supplied by the instrument itself,
said rule can be invoked.

- Meaning of signing in each other’s presence – Nera vs Rimando is applicable – they are
not required to actually see each other sign the document, what is important is that he/she
must be in such a position that had he chosen to see the signing, he could have seen it by
simply casting his eyes in the proper direction and there is nothing blocking his will.

6. Acknowledgment
- Separate requirement than the attestation clause.

- Supreme Court held that the mere fact that it was embodied in a separate article is to
emphasize the fact that it is a separate requirement.

What is required by law is acknowledgment not notarization.

- The will must be acknowledged before a notary public, a lawyer must have a commission as a
notary public and it must not have expired. A notary public is only a notary public within the place of
his commission.

- In one case, Supreme Court held that if a notary public notarized a document outside of his
commission, the will is invalid because there was no acknowledgment.

- In another case penned by Justice Corona, if the residential certificate has already expired, there is
no substantial compliance with the requirement of the notarial rule. That will make the will invalid
because there is no valid acknowledgment.
CODICIL
- A subsequent instrument which always relates to a previous will.
- It either explains, adds, modifies, alters or revoke a previous will. If there is no relation to an existing
will because the provision in the subsequent instrument is independent to the previous will, it is not
codicil but a new will.

- If the codicil is valid because it complies with the formalities required in the last will and testament
that codicil will become part of the will.

- However, if the will is holographic, if the law is strict, it is necessary that the codicil must also be
written entirely in the testator’s own handwriting because that will form part of the will EXCEPT if the
purpose of the codicil is to revoke the holographic will.

Article 827 – Can a person attach pages into the will without necessarily producing the contents of
the pages?
- Yes by mere reference of the document in the will. However, the documents must be in existence at
the time of execution of the will, it must clearly describe and identify the same and must be signed by
the testator and the witnesses in every page.

- Attachment by way of incorporation is only applicable in ordinary/notarial will.

REVOCATION
- While the testator is still alive, the will is ambulatory and revocable at any time, even if it was
probated ante-mortem, without need of any reason or at will because it is not yet effective.

- Upon death of the testator, that is the only time that the will becomes effective. Revocation can only
be done during the testator’s lifetime because he is the only one who can revoke his will.

Revocation can be done in three ways:

1. By implication or operation of law – without need of any act by way of applying the provisions of
the law, a will or any of its provisions are revoked by law.
(eg. Legal separation – at the time of issuance of decree of legal separation there was already a will
executed by the innocent spouse with testamentary disposition for the guilty spouse. The law
provides that upon issuance of decree of legal separation, the testamentary disposition of the
innocent in favor of the guilty is revoked by operation of law.)

2. By execution of a subsequent instrument – It is not important if it is a will or codicil for as long

as that subsequent instrument complies with the requirements of the last will and testament.

Revocation can be done expressly or impliedly by way of a subsequent instrument.

- Express revocation – Revocatory clause if present indicting that there is revocation
Revocatory clause must be valid and to be valid it must comply with the formalities of the last
will and testament. .
Codicil – can only be done by way of express revocation. It cannot impliedly revoke a will
because codicil is required to be related to an existing will. If a subsequent document is not
related to the previous will and dispositions are independent to the will, it is not a codicil.
Doctrine of dependent relative revocation – the revocatory must be valid. To be valid, the
subsequent instrument is vlaid because it complies with the formalities of the last will and testament.
If the subsequent instrument is invalid, the revocatory clause is also invalid. Since it is invalid, there is
not revocation of the previous will. (Applicable of express revocation by way of subsequent
instrument)

- Implied revocation – there can be implied revocation in the absence of express one and there will
be total incompatibility with the provisions of the two instrument.

Subsequent instrument must state provisions must totally be independent in the previous and
totally incompatible with each other.

3. By way of physical destruction – it is not limited to those mentioned in Article 830, obliteration,
cancelling, tearing or burning because there are other ways of physically destroying the will.
- What is important is the presence of the requisites of physical destruction.
REQUISITES:
a. At the time of the revocation by way of physical destruction, the testator must
possess the necessary testamentary capacity.

b. There must always be animus revocandi, intent to revoke.

(If there’s no intent to revoke, there’s no revocation of the will)
Can there be a probate of the will if there’s no copy left?
- IF the will is ordinary, the answer is yes, because there are witnesses which can attest that
said will existed and that it complied with formalities and also can attest to the substance of the
will. IT can be proven by way of parole evidence) the fact that there’s no intent to revoke can
be proven by parole evidence.

c. The intent must be actually be carried out

- IF the intent was not actually carried out, for example where the nephew substituted the
contents of the envelope with another paper and the will was not actually destroyed, there was
no revocation because the intention to destroy was not carried out)
- There must be evidence of overt acts of physical destruction.
- Overt act must be a completed act.
Example: The testator burned the will and threw it in the trash can. A saw it and tried to save
the will. The will was saved. Is there a revocation of a will? Yes, because the one who
intervened is a third person and in so far as the testator is concerned the revocation is a
complete revocation.
- It is not necessary that the testator be the one to physically destroy the will, it can be done by
the testator thru the instrumentality of another person with the requirement that it must be
done pursuant to express direction and the physical destruction was done in his
presence.
- There can be an unauthorized destruction – the will is not revoked. There can still be a
probate of a loss or destroyed will if there was no intent to revoke. However, if there was no
copy, if there was proof that the testator executed a will and there’s no copy, there is a
presumption that the testator revoked his will. It is incumbent upon the person interested in the
probate of the will which was no longer in existence to prove that there was no revocation.
In case of hologprahic will, it cannot be proven because there’s no witness in this kind of will.

In Codicil, in notarial will, the codicil can be holographic and can form part of a notarial will. However,
in holographic, the codicil must also be holographic to satisfy the requirement of the law that the
holographic will must be entirely written by the testator.