ARTS.

825-827 CODICILS AND

INCORPARTION BY REFERENCE

A: The same as Holographic

Notarial wills (Arts. 804 to 814).

Q: What is a Codicil?

Q: What is the difference between a

will and 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
executing a codicil?

formalities

in

and

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.

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.

N.B.:

Q: What is the purpose of the

aforementioned incorporation by
reference?

1. If a codicil is not executed with

the formalities of a will, said
codicil is void.

Q: How do you identify a codicil?

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.

A: A codicil refers to the original

will, if there is entirely no reference at
all, it is considered as new will.

Q: Are the witnesses required to

agree with the testator for the
incorporation of the reference?

Q: May a codicil be made before the

execution of the will?

A: No, it is an act of the testator

alone.

A: No, because a codicil refers to a

will. It cannot be made before the
execution of the will.

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?

2. A valid will can never be

revoked, expressly or impliedly
by an invalid codicil.

Q: What are the requisites

incorporation by reference?

for

A: Art. 827:

A: Yes.

1. The document or paper referred

to in the will must be in
EXISTENCE at the time of the
execution of the will;

Q: In the preceding problem,

should the list be attested by the
attesting witness?

2. The will must clearly describe

and
IDENTIFY
the
same,
stating among other things the
number of pages thereof.

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.

3. It must be identified by CLEAR

AND SATISFACTORY PROOF
as the document or paper
referred to therein; and,

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
commentary)

to

Tolentinos

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

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 nontestamentary
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 WILLS
Q: What do you mean
revocation as applied to wills?

by

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?

1. There must be an OVERT ACT

specified by law (burning,
tearing,
canceling
and
obliterating);

A: Yes, It is the provision in favor of the

offending spouse and not of the
innocent which shall be revoked.

3. There must be a COMPLETION,

of at least the subjective phase
of the overt act, and

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?

4. The testator at the time of

revoking the will must have
CAPACITY TO MAKE A WILL;

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?

2. There must be and ANIMUS

REVOCANDI or an intent to
revoke;

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.