Succession- Midterms

July 20, 2016

Revocation of Wills
Article 828.

What is revocation?

How can it be done?

Is there a time limit?

What if there is prohibition of testator himself on the will that he cannot

revoke it?
- Such will be void.

Article 829.

Rules if revocation is done outside Phil.:

Article 830.

How can a will may be revoked?

1. By implication or operation of law

Operation of law- express revocation, pursuant to provision of law
Ex: Legal separation of married couple, Annulment and spouse is guilty
party,

Implication of law- law does not expressly mentions revocation

Ex:
a. Testator sells bequeathed cars (Art. 957),
Can we not hold testator for abuse of rights?
- No, because will is ambulatory in nature and it is essentially
revocable until death

b. Judicial demand by testator of a credi which has been given as a legacy

(Art. 936),
What if the credit was remitted or condoned by the testator?
- Such is tantamount to donation. Hence, there is no revocation

c. Commission of an heir, devisee or legatee of an act of ingratitude or

unworthiness (1032),
d. Incapacity of heir to succeed because of untrustworthiness.
e. Pretirition of compulsory heir in the direct line (Art. 854)

2. By subsequent instrument
- when there is totally inconsistent provisions

Example:
Just like...
- Implied novation: serious incompatibility
- Express novation:

What is the rule when the will can no longer be located at the time of
probation or application for such?
- Will is presumed to be revoked by the testator if the will is lost while:
a. With the testator has it, or

b. Testator has ready access to such will.

(see Lipana v. Lipana)

What shall you prove before the presumption of revocation occur?
- Prove that it was last seen with the testator by parol evidence.

Maloto v. Court of Appeals

- "Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction.
There is paucity of evidence to show compliance with these requirements. For
one, the document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence.
Both witnesses, Guadalupe and Eladio, were one in stating that they were the
only ones present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned. (double
hearsay)
Note: Formalities of making will must be observed. Such that a notarial
instrument would be needed for notarial will, etc.
3. By overt acts
- can be by burning, tearing, cancelling, obliterating the will with intention
to revoke (animus revocandi)
Tearing
- Is a slight/small tear in the will enough? Not necessarily.
What is difference between obliterating and cancelling?
- obliterating is more severe
What if physical act was prevented by third person?
- If the complete destruction was prevented, there is already revocation.
What if the testator intends to revoke yet, when he burned it, he retrieved it
back?

What if he tears it then he pastes it again?

- There is revocation.

The will was presumed lost and by virtue of a final decision. But later, it was
found out later on that the will exists?
- There is no revocation and will may still be allowed probate.
Note: When will is revoked, testator must be with testamentary capacity.
Opinion: When will is torn during time when testator is in high temper, it may
be said that he was not sane during such period.

Effect of Revocation:
General Rule: Will becomes inoperative.
Exceptions:
Art. 833.
- false cause or illegal cause
- by mistake
Art. 832
- revocation is effective even if new dispositions are ineffective.
Remember: Giving effect to will of testator.
Kalaw v. Relova
- on revocation, if new will becomes ineffective
Molo v. Molo
Dependent relative revocation:
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force.

- If subsequent will is ineffective, the first will shall not be deemed as revoked
and inoperative.
- Art 833 is dependent relative revocation.

Doctrine of absolute revocation:

-

Article 834.
- If an illegitimate child is recognized through a will, even if it does not
conform with formalities, may be given effect; regardless of subsequent
revocation.
- Under Family Code... Proof of filiation
Will and Testament, notarized, but it cannot be a valid deed of revocation
because it contains only 2 witnesses. If you use this now as proof of filiation,
can this be valid? Yes.
Does it need to be proven (due execution and authenticity)?
- It will not be archived in the notarys office, hence it will not become a
public document. If it is not a public document, it will not prove the due
execution and authenticity of the such document.
due execution and authenticity

Republication and Revival of Wills

Article 835.
Article 836.
Republication
Article 837.
- Expressed revocation
- Implied revocation

Next Meeting: Allowance of will, read pertinent provisions on Rules of Court,

Cases