Articles 825-839 WILLS & SUCCESSION (2019)

Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance Vice Dean Castillo-Taleon
SUBSECTION 5. — CODICILS AND Art. 826. In order that a codicil may be effective, it shall
INCORPORATION BY REFERENCE be executed as in the case of a will.

Art. 825. A codicil is a supplement or addition to a will, Formalities of Codicils

made after the execution of a will and annexed to be As in the case of wills, there can be:
taken as a part thereof, by which any disposition made (a) notarial or ordinary codicils
in the original will is explained, added to, or altered. (b) holographic codicils

“Codicil” is derived from the Latin “codex” and literally A notarial will may be revoked by either a notarial or
means a little code or a little will (although, of course, holographic codicil; similarly, a holographic will may be
physically it may be larger or longer than a will). revoked by a holographic or notarial codicil.

Time When Codicil is Made If a codicil is not executed with the formalities of a will
A codicil, since it refers to a will, cannot be made before (Art 805 and 806), said codicil is void
a will; it is ALWAYS MADE AFTER
A valid will can never be revoked, expressly or
Rule in Case of Conflict Between Will and Codicil impliedly, by an invalid codicil.
In case of conflict between a will and a CODICIL, it is
understood that the latter should prevail, it being the Art. 827. If a will, executed as required by this Code,
later expression of the testator’s wishes. incorporates into itself by reference any document or
paper, such document or paper shall not be considered
At first codicils were writings actually attached to the a part of the will unless the following requisites are
will, but this is no longer necessary; when they are present:
separate documents, the codicil referring to and (1) The document or paper referred to in the will must be
ratifying the will may be said to incorporate the will by in existence at the time of the execution of the will;
reference, or to republish the will. (2) The will must clearly describe and identify the same,
stating among other things the number of pages
In order to operate as a republication of the will, it is thereof;
sufficient if the codicil refers to the will in such a way as (3) It must be identified by clear and satisfactory proof
to leave no doubt as to the identity of that instrument. as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses
A reference to the will in the codicil constitutes a
on each and every page, except in case of voluminous
sufficient identification of the will.
books of account or inventories.
CODICIIL SUBSEQUENT WILL
both are made after and presuppose a prior will Incorporation by Reference
being the latest expressions of the testator’s = It is the incorporation of an extrinsic document or
desires, they take precedence over the prior will, paper into a will by reference therein so as to
where their provisions are inconsistent with those become a part thereof and probated as such
in the latter.
DOCTRINE: a will, duly executed and witnessed
forms part of the original
a new or separate will according to statutory requirements, may incorporate
will
into itself by an appropriate reference a written paper
supplements the makes dispositions or document which is in existence at the time of the
original will, explaining, without reference to and execution of the will, irrespective of whether such
adding to, or altering independent of the document is one executed by the testator or a third
any of its dispositions original will person, whether it is in and of itself a valid instrument,
if it provides for a full provided the document referred to is identified by clear
disposition of the and satisfactory proof. So incorporated, the extrinsic
testator’s estate paper takes effect as part of the will and is admitted
(although inconsistent to probate as such.
does not, as a rule,
merely in part with the
revoke entirely the prior
prior will) may revoke The purpose of the Article is to provide for those cases
will
the whole prior will by when a testator wishes to incorporate to his will only by
substituting a new and reference (i.e., without copying the whole thing) certain
last disposition for the documents or papers, especially inventories and books
same of accounts.
a will and a codicil
thereto, being regarded a prior will and a Said documents or inventories, when referred to in a
as a single instrument subsequent will, being 2 notarial will, do not need any attestation clause,
(except where a separate wills, may be because the attestation clause of the will itself is
manifest intention construed sufficient.
requires otherwise), are independently of each
to be construed other General Rule: An instrument w/c is not executed in
together accordance w/ the formalities of a will shall not be
admitted to probate.

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 Articles 825-839 WILLS & SUCCESSION (2019)
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance Vice Dean Castillo-Taleon
Exception: that given in Art 827 w/c permits However, it is submitted that:
incorporation by reference provided the requisites • If a holographic will happen to have at least
enumerated are present: three credible and qualified witnesses, there
can be a proper incorporation by reference
Requisites for Validity of Documents Incorporated • Moreover, if a holographic will (with NO
by Reference witnesses) refers to a document entirely
(1) The document or paper referred Therefore: written, dated, and signed in the handwriting
to in the will must be in existence Reference to of the testator, there can also be a proper
at the time of the execution of the future papers will incorporation by reference.
will. render the
incorporation void. SUBSECTION 6. — REVOCATION OF WILLS AND
However, the will TESTAMENTARY DISPOSITIONS
itself remains
valid. Art. 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this
The will must refer right is void.
to the papers as
having been
Revocability of a Will
already made; it is
Revocation
not enough that in
= an act of the mind, terminating the potential
truth it was already
capacity of the will to operate at the death of
in existence.
the testator, manifested by some outward or
visible act or sign, symbolic thereof.
(2) The will must clearly describe and What to describe
= an act to annul a will in whole or in part
identify the same, stating among and identify:
other things, the number of pages locations, general
thereof. appearance NOTE: the testator must have testamentary capacity at
the time of revocation. The same degree of mental
capacity is necessary to revoke a will as to make one.
This is true even in
the case of
Until the death of the testator, a will is ambulatory and
voluminous books
revocable, since after all, the will concerns a disposition
of account or
of properties and rights effective after death.
inventories.
(3) It must be identified by clear and parol evidence or
The heirs do not acquire any vested right to the
satisfactory proof as the evidence aliunde
disposition in a will until after the testator’s death.
document or paper referred to is needed here of
therein course.
Provisions in a will which are ordered to be effected
(4) It must be signed by the testator If voluminous – no
immediately, even during the testator’s lifetime, are all
and the witnesses on each and need to sign each
right, provided the proper formalities and requisites are
every page, except in case of and every page;
present, but they are not really testamentary
voluminous books of account or sufficient number
disposition
inventories. of pages will
suffice provided it
“a will may be revoked by the testator at any time
guarantees their
before his death. Any waiver or restriction of this right
authenticity.
is void.”
→ Upon being revoked, the will or the
same instrumental
testamentary disposition intended to be
witnesses
revoked, ceases to exist, and is as inoperative
Observe that even the number of pages of voluminous
as if it has never been written.
accounts or inventories must be stated. (Art. 827, par.
2).
Art. 829. A revocation done outside the Philippines, by a
The exception refers only to the signing of all pages; person who does not have his domicile in this country, is
and even here, while not every page has to be signed, valid when it is done according to the law of the place
still it is believed that there must be a signature on at where the will was made, or according to the law of the
least several pages thereof for the purpose of place in which the testator had his domicile at the time;
identifying same as the documents really referred to. and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code.
Incorporation Can Generally be Done Only in
NOTARIAL WILLS Conflicts Rules for Revocation of Wills
From the fact that Art. 827(4) speaks of “witnesses,” it REVOCATION OUTSIDE THE PHILIPPINES
is reasonable to believe that as a rule, ONLY (a) follow law of place
NOTARIAL WILLS can have this incorporation by If not domiciled in the where will was
reference. Philippines MADE; or
[non resident Filipino or
alien]
(b) follow law of place
where testator was

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Articles 825-839 WILLS & SUCCESSION (2019)
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance Vice Dean Castillo-Taleon
DOMICILED at the The revocation of a legacy does not operate to revoke
time of revocation the entire will. Only total and absolute revocation of the
(a) follow law of the entire will prevent the probate of the revoked testament
Philippines (since (Dionisio Fernandez, et al. v. Ismaela Dimagiba, L-
If domiciled in the his domicile is 23638, Oct. 12, 1967).
Philippines (not here); or
provided for in (b) (Paras only) follow A revocation may occur by intendment of law
the law) the general rule of CONTRARY TO THE ACTUAL INTENT of the testator.
[resident Filipino or alien] lex loci
celebrationis of the Some instances of revocation by implication of law:
REVOCATION. (1) When after the testator has made a will, he sells,
REVOCATION IS IN THE PHILIPPINES or donates the legacy or devise.
whether or not the (2) When there is a decree of legal separation.
domicile is in the follow Philippine law. → In such case, provisions in favor of the
Philippines offending spouse made in the will of the
innocent spouse shall be revoked by
operation of law.
Art. 830. No will shall be revoked except in the following
(3) Commission by an heir, legatee, or devisee of an
cases:
act of unworthiness
(1) By implication of law; or
(4) Alienation, transformation, or loss of the thing
(2) By some will, codicil, or other writing executed as
given as a devise or legacy subsequent to the
provided in case of wills; or
execution of the will
(3) By burning, tearing, cancelling, or obliterating the
(5) Judicial demand by the testator of a credit which
will with the intention of revoking it, by the testator
has been given as a legacy.
himself, or by some other person in his presence, and by
(6) Preterition of compulsory heirs in the direct line.
his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express Revocation by an Overt Act
direction of the testator, the will may still be Overt Acts Covered:
established, and the estate distributed in accordance (1) burning
therewith, if its contents, and due execution, and the fact (2) tearing
of its unauthorized destruction, cancellation, or (3) cancelling
obliteration are established according to the Rules of (4) obliterating
Court.
Requisites:
Ways of Revocation (Paras)
The Civil Code speaks of revocation in three ways: (1) There must be an overt act specified by the law.
(1) by implication or operation of law (2) There must be a completion at least of the
→ totally or partially subjective phase of the overt act.
(2) by virtue of an overt act (3) There must be animus revocandi or intent to
→ like burning, tearing, cancelling, or obliterating revoke.
totally or partially in some instances (4) The testator at the time of revoking must have
(3) by virtue of a revoking will or codicil capacity to make a will.
→ totally or partially, or expressly or impliedly (5) The revocation must be done by the testator
himself, or by some other person in his presence
Revocation by Implication of Law and by his express direction.
Implication of Law
= this kind of revocation occurs when certain acts or (Jurado)
events take place subsequent to the execution of (1) The testator must have testamentary capacity at
a will from which the law infers or presumes that the time of performing the act of destruction;
the testator intended a change, either total or (2) The act of destruction must have been performed
partial, in the disposition of his property. with the intention of revoking the will;
= the kind of revocation produced by OPERATION (3) Such intention must have been accompanied by
of LAW when certain acts or events take place an actual physical act of destruction manifested by
after CIVIL CODE OF THE PHILIPPINES burning, or tearing, or cancelling, or obliterating of
the will or a part thereof; and
The rule of revocation by implication of law recognizes (4) Such act of destruction must have been performed
that a will may be revoked by the occurrence of certain by the testator himself, or by some other person in
circumstances not specifically mentioned in the his presence, and by his express direction.
statutes which prescribe the methods of revocation.
(De Leon)
Reason for allowing revocation by implication of law: (1) The testator must have testamentary capacity
There may be certain changes in the family or domestic at the time of performing the act;
relations or in the status of his property, such that the (2) The act must be any of the overt acts
law presumes a change of mind on the part of the specified;
testator. (3) It must be a completed act – actually carried
out;

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Articles 825-839
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance
(4) It must have been with the intent of revoking
the will;
(5) It must have been done by the testator
himself, or by some other person by his
express direction.
Intention of Revocation
The intent to revoke is essential to a revocation by act
of the testator. In order that an act shall have the effect
of revoking a will, the INTENTION TO REVOKE MUST
APPEAR CLEARLY AND UNEQUIVOCALLY;
a will is not revoked by any act of destruction not
deliberately done animo revocandi.
An act of destruction which is done accidentally, by
mistake, or as a result of fraud or undue influence, does
not operate as a revocation. The same rule applies to
the partial destruction of a will by accident.
Even where one of the statutory methods for revoking
a will is followed by the testator, his act is ineffectual
unless his intent thereby to revoke or alter the will
appears. The intent may be inferred from the nature of
the act or it may be shown by extrinsic evidence, but it
must in some competent way be made to appear.
The overt act of BURNING
• It is sufficient even if a small part of the instrument
itself be burned even though the entire writing itself
be left untouched.
• To constitute revocation by burning, it would seem
that there must be at least a burning of a part of
the paper on which the will is written, although a
very slight burn will suffice. Otherwise, there is no
revocation.
• If thrown into the fire with intent to revoke, and it
was burned in three places without scorching the
writing, there is already a revocation even if,
unknown to the testator, somebody was able to
snatch it from the fire and thus saved it
• If a will is burned accidentally, there is no
revocation in view of the lack of intention.
• If the envelope containing a will is burned, but the
will itself is untouched, there is NO revocation
even if there be intent to revoke
• It is clear that the physical act of destruction of a
will, like burning in this case, does not per se
constitute an effective revocation, unless the
destruction is coupled with animus revocandi on
the part of the testator. It is not imperative that the
physical destruction be done by the testator
himself. It may be performed by another person
but under the express direction and in the
presence of the testator. Of course, it goes without
saying that the document destroyed must be the
will itself [Maloto, et al. v. CA, et al.; L-76464, Feb.
29, 1988]
The overt act of TEARING
• Even a slight tear is sufficient.
• Of course, the greater the degree of tearing the
greater is the evidence of animo revocandi.
• “Tearing” includes “cutting.’’ A clause may be
revoked by “cutting” same from the will
WILLS & SUCCESSION (2019)
Vice Dean Castillo-Taleon
• The mere act of “crumpling” or the removal of the
“fastener” binding the pages of a will, does NOT
constitute a revocation, even though there be
animo revocandi. The reason is that “crumpling” is
not one of the overt acts provided for by the law.
o However, in the Philippine case of Roxas
v. Roxas, 48 O.G. 2177, the court
impliedly allowed “crumpling’’ as one of
the overt acts, provided there is animo
revocandi.
• Tearing off even the signature alone constitutes
revocation provided the other requisites are
present. This is because the signature goes to the
very heart of the will.
The overt act of OBLITERATING or CANCELLING
CANCELLATION OBLITERATION
effected by diagonal or effected by erasing or
horizontal lines, or criss scraping off any word or
crosses written upon disposition which the
the face of the will or testator intends to
upon any part thereof revoke.
words are still legible words are rendered
illegible
• Either of the two revokes a will, totally or partially.
o This is what differentiates
cancellation/obliteration from revocation
effected by burning or tearing. In the
latter, the revocation is always total, while
in the former, the revocation is total if it is
directed against an essential part of the
will and partial if it is directed against a
nonessential part of the will.
• If all parts are cancelled or obliterated, or if the
signature is cancelled or obliterated, the whole will
is revoked, the reason in the case of the signature
being that the act strikes at the existence of the
whole instrument
• Cancellation of the signature of witnesses to a
holographic will leaves the will valid, since no
witnesses are after all required.
• Cancellation or obliteration of non-vital part leaves
the other parts in force.
Q: T made a will which was later discovered same to
be missing. He then informed his relatives he would
make another will. But he never did so. On his death,
the missing will was found. Can it be considered
revoked?
A: No, because actually there has not been any of the
overt acts mentioned under the law. And even if the will
was never found, still parol evidence may be
introduced to prove its contents, for we may presume
here that the destruction, if indeed there was any, was
not authorized
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Articles 825-839
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance
Revocation by the Execution of Another Will or
Codicil
Revocation in this manner may be express or implied.
EXPRESS REVOCATION: It is express when in a
subsequent will, or codicil, or other writing executed as
provided in case of wills, there is a revocatory clause
expressly revoking the will or a part thereof.
• express revocation may be effected by a
subsequent will, or a codicil, or a nontestamentary
writing executed as provided in case of wills
• It is essential that in the revocatory clause
contained in the subsequent will, codicil or other
writing the intention of the testator to revoke the
previous will must be clearly and unmistakably
manifested.
IMPLIED REVOCATION: It is implied when the
provisions of the subsequent will or codicil are partially
or absolutely inconsistent with those of the previous
will.
• Implied revocations consists in complete
inconsistency between the two wills.
• implied revocation may be effected only by either
a subsequent will or a codicil. It cannot be effected
by a nontestamentary writing executed as
provided in case of wills since such writing does
not contain any affirmative disposition of property
which can be said to be inconsistent with the
dispositions contained in the will.
Requisites for Revocation of a Former Will by a
Subsequent Will
(1) the testator must have testamentary capacity at
the time of revocation;
(2) the subsequent will must be valid;
(3) it must contain a revocatory clause or be
incompatible with the former will thereby showing
intent to revoke;
(4) it must be admitted to probate.
REVOCATION BY A CODICIL, it must be observed
that ordinarily, a codicil to a will is a republication
thereof
If the REVOCATION IS PARTIAL, it will have the effect
of republishing the will as of the date of the codicil with
respect to all parts not revoked.
If the REVOCATION IS TOTAL, there is no
republication.
As regards REVOCATION BY A expressly revoking will No. (1). In the belief that he had
NONTESTAMENTARY WRITING executed as
provided in case of wills, it is not essential that the
writing should contain any affirmative disposition of
property.
• A will may be revoked by a subsequent will or
codicil, either notarial or holographic.
• It is essential however, that the revoking will be
itself a valid will (validly executed as to form),
otherwise there is no revocation.
• The revocation made in the subsequent will must
indeed be a definite one. A mere declaration that
WILLS & SUCCESSION (2019)
Vice Dean Castillo-Taleon
sometime in the future, the first would be revoked,
is not enough. However, there is nothing wrong in
making the revocation conditional, that is, the
revocation takes place only if the condition is
fulfilled (doctrine of “conditional revocation,” also
called “dependent relative revocation”).
• A second will referred to by the testator as his “last
will” revokes completely the first will, particularly if
the provision of the two, as to who were being
instituted as heirs, are inconsistent
Art. 831. Subsequent wills which do not revoke the
previous one in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills.
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.
Effect if Will is Inoperative
According to Art. 832, if the subsequent will which
contains the revocatory clause should become
inoperative either by reason of the incapacity of the
heirs, devisees or legatees designated therein or by
reason of their renunciation or repudiation, the
revocation shall still take effect.
→ This rule is logical, because, while the
capacity or the desire of the heirs, devisees or
legatees to succeed is absolutely beyond the
control of the testator, the act of revocation is
within his absolute control.
→ Consequently, the revocatory clause must be
entirely separated from the other
testamentary dispositions which are affected
by the incapacity or the renunciation of the
heirs, devisees or legatees.
Effect if Will is Disallowed
If a subsequent will, containing a clause revoking a
previous will, is disallowed by the probate court on the
ground that it has not been executed in accordance
with the formalities prescribed by law, the revocatory
clause will not produce any effect whatsoever.
→ This is logical, because, after all, the effect of
the disallowance is to nullify the will
altogether, including the revocatory clause
contained in such will.
Problem: Testator made will No. (1). After one week,
he wanted to revoke same, so he executed will No. (2),
already accomplished what he wanted, he then tore
into two pieces will No. (1). On his death, it was
discovered that will No. (2) had not been validly
executed.
Q: Can we consider will No. (1) as having been
revoked, or should it still be given effect?
A.: In one case, if was held that while it is true that
revocation was not produced by the execution of an
invalid will, revocation was made thru an overt act —
the act of tearing or destruction — with animo
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Articles 825-839
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance
revocandi. Hence, the court concluded that will No. (1)
had indeed been revoked. (Diaz v. De Leon, 43 Phil.
413). However, in a subsequent case, it was ruled that
there was no revocation either by subsequent will (for
same was invalid) or an overt act (since the act of
destruction or tearing the first will was prompted by the
false belief that the second will had been validly
executed). (See Art. 833, which provides that a
revocation of a will based on a false cause or illegal
cause is null and void). To put it in another way, the
doctrine of dependent relative revocation — the
revocation by destruction or overt act was good only if
this condition is fulfilled, namely, that the revoking will
was valid. The condition was not fulfilled; therefore, the
revocation by overt act did not really materialize.
Presumptions of Revocation
(1) Where the will cannot be found following the death
of the testator and it is shown that it was in the
testator’s possession when last seen, the
presumption is, in the absence of other evidence,
that he must have destroyed it animo revocandi.
(2) Where the will cannot be found following the death
of the testator and it is shown that the testator had
ready access to it, the presumption is, in the
absence of other evidence, that he must have
destroyed it animo revocandi.
(3) Where it is 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 or obliteration as represents a
sufficient act of revocation within the meaning of
the applicable statute, it will be presumed, in the
absence of evidence to the contrary, that such act
was performed by the testator with the intention of
revoking the will.
Conditional or Dependent Relative Revocation
Under this doctrine, the established rule is that if a
testator revokes a will with a present intention of
making a new one immediately and as a substitute, and
the new will is not made, or, if made, fails of effect for
any reason, it will be presumed that the testator
preferred the old will than intestacy, and the old
one will be admitted to probate in the absence of
evidence overcoming the presumption, provided its
contents can be ascertained.
→ It is a rule of presumed intention rather than a
substantive rule of law.
Probate of Lost or Destroyed Notarial Wills
If a notarial will has been lost or destroyed without
intent to revoke, its contents may nevertheless still be
proved by:
(1) oral or parol evidence
(2) carbon copies (Borromeo v. Casquijo, L-26063)
→ This is because a carbon copy signed by all
concerned is just as good as the original.
Holographic wills, which have been lost or destroyed
without intent to revoke, cannot be probated
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,
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Vice Dean Castillo-Taleon
devisees or legatees designated therein, or by their
renunciation.
Effect on Revocation if New Will is Inoperative
• There is a difference between an invalid will, and
a valid but ineffective will an invalid revoking will
cannot revoke.
• But a valid though ineffective will can revoke.
Q: T made a will making X his heir. Later, T expressly
revoked his first will by executing a second will
containing a revocatory clause. T made Y his heir. The
second will was validly made, but on T’s death, Y
refused to accept the inheritance. Is the first will still
revoked?
A: Yes. (Art. 832). Therefore, T will be considered to
have died intestate, and X cannot inherit, except, if he
be also one of the intestate heirs.
• If the revoking will is both invalid and ineffective, it
is clear that there can be no revocation
Art. 833. A revocation of a will based on a false cause or
an illegal cause is null and void.
Revocation Based on False or Illegal Cause
As already discussed under Art. 830, this Article 833 is
one of the aspects of “dependent relative
revocation,” or more properly, at least for the purpose
of this Article, “a revocation made under a mistake.”
Q: T made a will making A his heir. T then learned that
A was dead, so he made another will instituting B as
heir. If A turns out to be still alive, who inherits?
A: A inherits, because the revocation was based on a
false cause.
The fact that the cause for the revocation was a false
belief or a mistake must be found on the face of the will
or codicil itself, i.e., if the revocation is through a will or
codicil
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.
Effect of Revocation on the Recognition of an
Illegitimate Child
According to Art. 278, voluntary recognition of an
illegitimate child may be done:
(1) in a record of birth
(2) will
(3) statement before a court of record
(4) any authentic writing
Now then, if the will in which recognition had been
made is subsequently revoked, THE RECOGNITION
STILL REMAINS VALID.
Reason for Art. 834: While a will is essentially
revocable, RECOGNITION IS IRREVOCABLE (unless
there be vitiated consent).
Moreover —
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• recognition is not really a testamentary disposition;
• recognition does not wait for the testator’s death to
become effective.
Art. 834 applies only if the recognizing will is
extrinsically valid — otherwise there would be no
recognition that can be revoked.
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.
‘Republication’ Defined
= It is the process of re-establishing a will, which has
become useless because it was void, or had been
revoked.
= 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 or
executes a codicil to his will
EXPRESS REPUBLICATION/ REPUBLICATION BY
RE-EXECUTION: it is express if the testator
reproduces in a subsequent will the dispositions
contained in a previous one which is void as to its form.
→ This is the republication which is referred to in
Art. 835 of the Code. Its purpose is to cure the
will of its formal defects.
IMPLIED OR CONSTRUCTIVE REPUBLICATION/
REPUBLICATION BY REFERENCE: It is constructive
if the testator for some reason or another executes a
codicil to his will.
→ This is the republication which is referred to in
Art. 836 of the Code.
How Made
Republication may be made by:
(1) re-execution of the original will (the original
provisions are COPIED)
(2) execution of a codicil (also known as implied
republication).
Art. 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
Requisites and Limitations of Republication
To republish a will void as to its FORM, all the
dispositions must be reproduced or copied in the new
or subsequent will.
To republish a will valid as to its form but already
revoked, the execution of a codicil which makes
reference to the revoked will is sufficient.
→ Here, mere reference is enough: there is no
necessity of reproducing all the previous
dispositions
→ Of course, in this case there would be nothing
wrong with a RE-EXECUTION
Effects of Republication by Virtue of a Codicil
• The codicil revives the previous will.
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Vice Dean Castillo-Taleon
• The old will is republished as of the date of the
codicil — makes it speak, as it were, from the new
and later date.
• A will republished by a codicil is governed by a
statute enacted subsequent to the execution of the
will, but which was operative when the codicil was
executed
Q: Can a will, invalid because of fraud or force or undue
influence or because the testator was under 18 or was
insane, be republished by mere reference in a codicil?
A: It is submitted that the answer is yes, because this
is not a case when the will is void as to its FORM. (Form
— in this Article, it is believed, refers to such things as
those covered by Art. 805, et seq., like defect in the
number of witnesses, lack of or fatal defect in the
attestation, lack of acknowledgment, etc.). But not to
vitiated consent or to lack of testamentary capacity,
although of course these are included in the phrase
“extrinsic validity,” as distinguished from “intrinsic
validity.’’
Art. 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation
of the second will does not revive the first will, which
can be revived only by another will or codicil.
Revival of revoked will by Republication
Revival is the restoration to validity of a previously
revoked will by operation of law
ART 837 CONTEMPLATES THIS SITUATION:
he makes
anothe will
he makes a
testator makes third will w/c
a will
EXPRESSLY
revokes the
revoking the
second
first
The rule laid down by the provision is that: THE
REVOCATION OF THE SECOND WILL DOES NOT
REVIVE THE FIRST. The revival must be made by
the execution of another will or a codicil. In other
words, BY REPUBLICATION, either expressly or
impliedly.
he makes anothe
he makes a
will IMPLIEDLY
testator third will w/c
(by inconsitent
makes a will revokes the
provisions)
second
revoking the first
If the revocation of the first will by the second will was
only implied, that is, by reason of inconsistent
provisions, the FIRST WILL WOULD BE REVIVED BY
OPERATION OF LAW by the revocation of the second
will by the third will. This is implied from the doctrine of
dependent relative revocation that it will be presumed
that the TESTATOR PREFERRED THE FIRST WILL
TO BE OPERATIVE.
It seems that under our law, the only way by which a
previously revoked will may be revived is through
another will or codicil.
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→ This is tantamount to saying that the testator
will have to make another will or codicil either
reproducing the contents of the revoked will or
incorporating thereto such revoked will by
reference in accordance with the provisions of
Art. 837 of the Code.
As has already been intimated, a void will or a revoked
one is a nullity, devoid of any effect, and is useless.
And the only ways of giving effect to it are:
(1) republication (this includes both re-execution and
reference by a codicil — already discussed)
(2) revival
Distinctions Between Republication and Revival
REPUBLICATION REVIVAL
an act of the one that takes place by
TESTATOR OPERATION of LAW.
the re-establishment by the restoration or
the testator of a reestablishment of
previously revoked will revoked will or revoked
or one invalid for want of provisions thereof, to
proper execution as to effectiveness, by virtue
form or for other of legal provisions
reasons, so as to give
validity to said will
Examples of Revival
While omission of a compulsory heir in the institution
of heirs annuls the institution, still if the omitted heir
dies ahead of the testator, the institution is revived,
without prejudice to the right of representation. (See
Art. 856).
If after making a will, the testator makes a second
will impliedly revoking the first, the revocation of the
second will revives the first will
Aside from republication and revival, there is no other
way of restoring effectiveness. Thus, it has been held
that piecing together a torn and revoked will cannot
restore its effectiveness
SUBSECTION 8. — ALLOWANCE AND
DISALLOWANCE OF WILLS (PROBATE)
Art. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court. The testator himself may, during
his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of
wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.
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Probate
= the act of proving before a competent court
the due execution of a will by a person
possessed of testamentary capacity, as well
as approval thereof by said court.
= a special proceeding for establishing the
validity of the will.
= a special proceeding for the purpose of
proving that the instrument offered for probate
is the last will and testament of the testator,
that it has been executed in accordance with
the formalities prescribed by law, and that the
testator had the necessary testamentary
capacity at the time of the execution of the
will.
→ Probate may also be called “probation,’’
“legalization,’’ “protocolization,’’ and
“authentication
VALIDITY OF THE
PROBATE TESTAMENTARY
PROVISIONS
decides the execution of
the document and the deals with descent and
testamentary capacity distribution
of the testator
Nature of Probate
A proceeding on an application for the probate of a will
is not an ordinary civil action. It is SPECIAL
PROCEEDING. A will is nothing more than a species
of conveyance whereby a person is permitted with the
formalities prescribed by law, to control to a certain
degree the dispositions of his property after his death.
The action of the court in admitting a will to probate has
all the effects of a judgment; and as such is entitled to
full faith and credit in other courts
The proceeding by which this is accomplished is
considered to be in the nature of a proceeding in rem,
and upon this idea the decree of probate is held binding
on all persons in interest, whether they appear to
contest the probate or not.
Notice of the time and place of hearing is required to
be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule
79, Rules of Court). The publication of the notice of the
proceedings is constructive notice to the whole world.
The proceeding is not a contentious litigations, and,
although the persons in interest are given an
opportunity to appear and reasonable precautions are
taken for publicity, they are not impleaded or required
to answer.
A final judgment on probated will, albeit erroneous, is
binding on the whole world.
Two Kinds of Probate
(a) Probate during the TESTATOR’S LIFETIME
→ this does not prevent the testator from
revoking his probated will or from making
another one
(b) Probate after the TESTATOR’S DEATH.
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Need for a Probate
PROBATE IS MANDATORY: It is essential because
under the law “no will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court.’’ (Art. 838, first paragraph).
Even if the decedent left no debts and nobody raises
any question as to the authenticity and due execution
of the will, none of the heirs may sue for the partition of
the estate in accordance with that will without first
securing its allowance or probate by the Court:
• first, because the law expressly provides that “no
will shall pass either real or personal estate unless
it is proved and allowed in the proper court”; and,
• second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with the
substituted by any other proceeding, judicial or
extrajudicial, without offending against public
policy designed to effectuate the testator’s right to
dispose of his property by will in accordance with
law and to protect the rights of the heirs and
legatees under the will thru the means provided by
law, among which are the publication and the
personal notices to each and all of said heirs and
legatees
Thus in probate proceedings, the court —
(1) orders the probate proper of the will
(2) grants letters testamentary or 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) and directs the delivery of the estate or properties
to those who are entitled thereto.
Even if a will is never probated, property may be
transmitted if a partition agreement is entered into, the
provisions of which are based on the will [Chua v. Court
of First Instance 78 SCRA 412]
A probate court’s jurisdiction is not limited to the
determination of who the heirs are and what shares are
due them as regards the estate of a deceased person.
Neither is it confined to the issue of the validity of wills.
Parenthetically, questions of title pertaining to the
determination prima facie of whether certain properties
ought to be included or excluded from the inventory
and accounting of the estate subject of a petition for
letters of administration, may be resolved by the
probate court [Aurelio Ocampo, Dominador D. Buhain
and Teresa C. Dela Cruz; GR 103727, Dec. 18, 1996]
As a general rule, courts in probate proceedings are
limited only to passing upon the EXTRINSIC VALIDITY
of the will sought to be probated and the
COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW.
Imprescriptibility of Probate
It must also be noted that the statute of limitations is
not applicable to the probate of wills. If the probate of
validly executed wills is required by public policy, the
state could not have intended the statute of limitations
to defeat that policy.
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It is of course true that the rights of the parties should
not be left hanging in uncertainty for periods of time far
in excess of the maximum period of ten years allowed
by law, but the obvious remedy is for the other
interested person either
(1) to petition for the production of the will and for its
probate, or
(2) to inflict upon the guilty party the penalties
prescribed by Rule 75 of the Rules of Court, or
(3) to declare the unworthiness of the heir under Art.
1032 of the Civil Code for concealing or
suppressing the will.
Procedure and Reason for ‘Ante Mortem’ Probate
TESTATOR HIMSELF petitions the competent court
for the probate of his will.
Reason for allowing this kind of probate — to prevent
or minimize fraud, intimidation, and undue infl uence;
also to enable the testator to correct at once failure to
observe legal requirements.
In Longcop v. Turla, et al., C.A. L-26913-R, June 11,
1963, it was held that even when the testatrix herself
has brought the probate proceedings, whenever the
will falls short of the required formalities, the remedy
would be to correct the will immediately and not to
proceed with the probate of the defective will
Questions Determinable by Probate Court
Under our law, there are only three possible questions
which can be determined by the probate court. They
are:
(1) Whether or not the instrument which is offered for
probate is the last will and testament of the
decedent; in other words, the question is one of
identity.
(2) Whether or not the will has been executed in
accordance with the formalities prescribed by law;
in other words, the question is one of due
execution.
(3) Whether the testator had testamentary capacity at
the time of the execution of the will; in other words,
the question is one of capacity.
Consequently, the probate court cannot inquire into the
intrinsic validity of testamentary dispositions.
Furthermore, it was held that a person who intervenes
in the probate proceedings can be required to show his
interest in the will or in the property affected thereby.
→ For such purpose, it is sufficient that he must
show or produce prima facie evidence of his
relationship to the testator, or of his right to the
latter’s estate.
→ Consequently, if he claims to be an
acknowledged natural child of the testator, the
probate court will certainly allow him to
produce evidence regarding his status, but
the nature of the evidence submitted would
nevertheless be only prima facie, and only for
the purpose of justifying his intervention in the
probate proceeding.
o The reason for this is evident. The
final determination of the status of
such person can be made only
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during the proceedings for the
distribution of the estate and not
during the probate proceedings.
Salient Points in Procedures of the Post-Mortem
Probate
I. The probate proper (this deals with
EXTRINSIC VALIDITY)\
II. The inquiry into INTRINSIC VALIDITY and
the DISTRIBUTION itself of the property.
At any time after the testator dies, the will may be
presented for probate by any executor, devisee,
legatee, or interested person. (Rule 76, Sec. 1, Rules
of Court). The court can motu proprio set the time and
place for proving the will delivered to it.
→ This is true whether or not the petitioner
(proponent) has the will in his possession, or
it is in somebody else’s possession, or has
been lost or destroyed, as long as there was
no animo revocandi.
An expressly revoked will is of course not admissible to
probate. (Trillana v. Crisostomo, L-3378, Aug. 22,
1951). 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
therefore disallowed.
Even if a will has already been probated, if later on a
subsequent will is discovered, the latter may still be
presented for a probate. (Arancillo v. Peñaflorida,
C.A.,54 O.G. 2914).
Even if the discovered will had been made earlier than the
probated will, it can still be probated as long as the two
wills can be reconciled, or if there are portions in the
first which have not been revoked in the
second.
The PETITION FOR PROBATE must among other
things state:
(1) The fact that the testator is dead, and the place
and time of said death;
(2) The fact that the deceased left a will, copy of which
has to be attached to the petition;
(3) The fact that the will was executed in accordance
with legal requirements;
(4) Names, ages, addresses of the executor and all
interested parties or heirs;
(5) The probable value and character of the property
of the estate;
(6) The 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
The issue in the probate of a will is restricted to that
kind of validity of the will which for example determines:
(1) whether or not the testator was possessed of
a sound mind,
(2) whether or not he freely executed the will, and
(3) whether or not the will had been executed in
accordance with legal formalities.
(Pastor v. Court of Appeals, GR 56340, June 24, 1983)
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Vice Dean Castillo-Taleon
In court, there must be proof of death (actual or
presumed), publication of the notice of hearing, and the
compliance of all the formalities required by law.
The necessary witnesses must be produced if
available, and their absence must be satisfactorily
explained.
Even if an attesting witness does not remember
attesting (Rule 76, Sec. 11) or even if he testifies or all
the witnesses testify against the validity and due
execution of the will, there is still a chance for the court
to allow the will, if it believes that all the legal
requirements have been complied with.
A lost or destroyed notarial will, destroyed without
animo revocandi, may still be probated as long as it is
clearly proved that once upon a time, a will had been
validly executed, that the will had been lost or
destroyed without animo revocandi. Two credible
witnesses must then testify as to its contents.
→ These things must still be proved by the
proponent even if there is NO opposition to
the probate of the lost or destroyed will.
It is well-settled that for a person to be able to intervene
in an administration proceeding, it is necessary for him
to BE INTERESTED IN THE ESTATE TO BE
ADMINISTERED.
→ An interested party has been defined as one
who would be benefited by the estate, such as
an heir, or one who has a certain claim
against the estate, such as a creditor. Thus,
one who has or can have no interest in
succeeding a decedent cannot oppose the
probate of his alleged will.
Effect of Probate Proper (EXTRINSIC VALIDITY)/
Effect of Allowance of Will
A judgment or decree of a court with jurisdiction of a
proceeding to probate a will, which admits the will to
probate, is conclusive of the validity of the will; it is not
subject to collateral attack, but stands as final, if not
modified, set aside, or revoked by a direct proceeding,
or reversed on appeal to a higher court.
This is clear from the provision of the fourth paragraph
of Art. 838 of the New Civil Code, a provision which is
also found in Sec. 1 of Rule 75 of the New Rules of
Court. Since a proceeding for the probate of a will is
essentially one in rem which determines the status of
the decedent’s estate as testate or intestate, the
judgment rendered by a court having jurisdiction is
conclusive on the whole world, irrespective of who
appeared as parties of record in the proceeding.
As long as there has been FINAL JUDGMENT by a
court of COMPETENT JURISDICTION, and the period
for filing a petition for relief (Rule 38, Secs. 2 and 3,
Rules of Court) has expired without such petition
having been submitted, the PROBATE PROPER (or
allowance) of the will is binding upon the WHOLE
WORLD (being a proceeding in rem) insofar as
TESTAMENTARY CAPACITY (at least 18; sound
mind) and DUE EXECUTION (including all formalities
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and absence of any ground for disallowance) are
concerned. In fact, the order allowing probate of the will
is not interlocutory and is, therefore, immediately
appealable
An order determining the distributive share of the
estate to which a person is entitled is, of course,
appealable, before final judgment.
In no case is the judgment conclusive on matters such
as ownership of property
→ The proceeding for distribution of the
properties is NOT in rem, and cannot affect
those who were not PERSONALLY served
with summons
When allowance may be set aside
Since a proceeding for the probate of a will is
essentially one in rem, a judgment allowing a will shall
be conclusive as to its due execution. Consequently,
no question of the validity or invalidity of the will could
be thereafter raised, except
(1) by means of an appeal, or
(2) by means of a petition for relief from the judgment
by reason of fraud, accident, mistake, or
excusable negligence, or
(3) by means of a petition to set aside the judgment
by reason of lack of jurisdiction or lack of
procedural due process, or
(4) by means of an action to annul and judgment by
reason of extrinsic or collateral fraud.
Distribution is defined as the division, by order of the
court having authority, among those entitled thereto, of
the estate of a person, after the payment of debts and
charges.
Q: To be conclusive, the probate must have been
conducted by a competent court with full jurisdiction.
What is that court?
A: The Regional Trial Court of the province —
1) where he has real estate (in case of NON
RESIDENT testator).
2) where he resided at the time of his death (in case of
a RESIDENT testator).
[NOTE, however, that all Courts of First Instance (now
RTC) have jurisdiction.
The residence or domicile of the testator affects only
the VENUE, but NOT the JURISDICTION of the Court.
The rule grants jurisdiction to the Court where
jurisdiction is first INVOKED, without taking VENUE
into account.
Moreover, it is essential that:
(1) it be proved before the court that he died after
having executed a will (in case of post mortem
probate)
(2) and that the will has already been delivered to the
Court
Any other court’s decree cannot have the res judicata
effect of a probate, except of course that of the
Appellate Court affirming the judgment of the proper
court.
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The withdrawal from the case of one who filed the
petition for probate does NOT affect the jurisdiction of
the court over the proceedings and over all the other
persons therein, for it is a well-established principle that
the proceeding for the probate of a will is in rem, and
the court acquires jurisdiction over all the persons
interested in the estate of a deceased person, whether
or not he filed the petition for the probate of the will
To determine appellate jurisdiction of the Supreme
Court or of the Intermediate Appellate Court, as the
case may be, the amount or value involved or in
controversy is that of the entire estate
The final judgment on a probate may be set aside by a
petition for relief brought within the legal period. Under
Rule 38, Sec. 1 of the Rules of Court, when a judgment
or order is entered against a party in the Court of First
Instance (now Regional Trial Court) thru FAME (fraud,
accident, mistake, or excusable negligence), he may
file a petition in the same court and in the same cause,
asking that the judgment, order, or proceeds be set
aside.
PERIODS — the petition has to be filed:
(1) within sixty (60) days after the petitioner learns of
the judgment or order to be set aside;
(2) and within six (6) months after such order or
judgment was entered. Should the period lapse,
the judgment now really becomes FINALLY
FINAL.
Q: In the settlement of estates, what are usually done?
A:
(1) First, proof of testamentary capacity and due
execution are presented, and the court then issues
an order allowing or disallowing the will.
(2) After this is done, the distribution of the estate may
be done, after all questions on intrinsic validity are
disposed of.
The first part is really different from the second part.
The first is concerned only with testamentary capacity
and due execution. Other matters are generally
irrelevant. After the probate order is made, same may
be appealed within the proper period.
General Rule: A probate court has no jurisdiction to
decide questions of ownership.
Exceptions:
(1) as when the parties voluntarily submit this matter
to the court; or
(2) as when provisionally, the ownership is passed
upon to determine whether or not the property
involved is part of the estate.
Requirements Before Distribution of Properties
(1) First, there must be a decree of partition allocating
property to each heir.
(2) Then, payment of the estate tax is required.
(3) Finally, the distributive shares may be delivered.
Termination of Probate Proceedings
Probate proceedings are considered terminated upon
the approval by the probate court of the project of
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partition, the granting of the petition to close the
proceedings, and the consequent issuance of the order
of distribution directing the delivery of the properties to
the heirs in accordance with the adjudication made in
the will.
Matters that Should be Brought up Before the
Probate Court
These are:
(1) determination of heirs;
(2) proof of filiation;
(3) determination of estate of decedent; and
(4) claims thereto.
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;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto
Grounds for Disallowance of a Will
The grounds given in Art. 839 are exclusive, thus, no
other ground can serve to disallow a will.
The Ground of Force, Duress, Fear or Threat
• These grounds connote the idea of coercion,
mental or physical.
• While their presence in a contract renders it
voidable (and therefore susceptible of ratification),
their presence in a will renders the will VOID
There is violence when in order to compel the testator
to execute the will, serious or irresistible force is
employed
There is intimidation when the testator is compelled
by a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon the
person or property of his spouse, descendants or
ascendants, to execute the will
The Ground of Undue and Improper Pressure and
Influence
There is 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.
It connotes the idea of coercion by virtue of which the
judgment of the testator is displaced, and he is induced
to do that which he otherwise would not have done.
To establish undue influence it must be shown that the
influence exerted upon the testator was such as to
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Vice Dean Castillo-Taleon
amount to force, coercion, or importunities which he
could not resist.
The following circumstances shall be considered. The
confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged
to have been unduly influenced was suffering from
mental weakness, or was ignorant, or in financial
distress.”
If undue influence has vitiated only some of the
dispositions, the rest should be considered valid.
The Ground of Fraud
Fraud is the use of insidious machinations to convince
a person to do what ordinarily he would not have done.
Fraud is present to invalidate a will if by
misrepresentation and deception the testator is led into
making a will different from what he would have made
but for the misrepresentation and deception.
Fraud invalidating a will is said to be any trick,
deception, or artifice by which the testator is so
circumvented, cheated, or deceived as to fall into error
respecting the disposition of his property.
For fraud to vitiate a will, there must be INTENT TO
DEFRAUD. This intent, and the nature of the fraud,
must be proved of course.
Fraud in a contract renders it voidable; in a will, same
is cause for disallowance because the will is void.
It should be noted that when a beneficiary is the person
who prepared or drafted the will, a suspicion is created
that fraud or undue influence was exercised
Fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for
opposing probate shows the absence of definite
evidence against the validity of the will.
The Ground of Mistake or Lack of Testamentary
Intent Insofar as the Document Is Concerned
If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time
of affixing his signature thereto.
Example: A man signed a document not believing it to
be a will. This mistake is a ground for disallowance.
In American jurisdiction, it is well-settled that mistake
which will invalidate a will is a mistake as to the identity
or character of the instrument which he signed, as well
as a mistake as to the contents of the will itself. These
mistakes are generally known as mistakes in the
execution. Hence, a will should not be denied probate
merely because the testator was mistaken in his
appreciation of the effect of the language thereof.
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Articles 825-839 WILLS & SUCCESSION (2019)
Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance Vice Dean Castillo-Taleon
Distinctions Between Revocation and Ratification
Disallowance or Nullity Q: Granting that the will should be disallowed under
REVOCATION DISALLOWANCE any of the grounds stated in Art. 839, would it be
a voluntary act of the possible for the testator, before promulgation of the
given by judicial order decree of disallowance, to ratify the will?
testator
must always be for a
with or without cause A: IT DEPENDS.
legal cause
as a rule is always total → With respect to a will which is void because of
(except when the non-compliance with the formalities
ground of fraud or undue prescribed by law, ratification is not possible.
may be partial or total That which is void or inexistent is not
influence for example
affects only certain susceptible of ratification. Consequently, the
portions of the will). only way by which such will may be validated
would be for the testator to republish the same
Allowance of Wills Proved Outside of the in accordance with Art. 835 of the Code.
Philippines → However, with respect to a will which was
(See Rule 77, Revised Rules of Court) executed through violence, intimidation,
undue influence, fraud or mistake, since we
Will proved outside the Philippines may be allowed cannot exactly say that the will is void or
here. — Wills proved and allowed in a foreign country, inexistent, ratification is possible
according to the laws of such country, may be allowed,
filed and recorded by the proper Court of First Instance
(now Regional Trial Court) in the Philippines. (Rule 77,
Sec. 1, Rules of Court).

Notice of hearing for allowance. — When a copy of

such will and of the order or decree of the allowance
thereof, both duly authenticated, are fi led with a
petition for allowance in the Philippines, by the
executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to be given as in
case of an original will presented for allowance. (Rule
77, Sec. 2, Rules of Court).

When will allowed, and effect thereof. — If it appears

at the hearing that the will should be allowed in the
Philippines, the court shall so allow it, and a certificate
of its allowance, signed by the judge, and attested by
the seal of the court, to which shall be attached a copy
of the will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally proved
and allowed in such court. (Rule 77, Sec. 3, Rules of
Court).

As has been said before —

1) If a foreign will has already been probated in a
foreign country, all that is needed is to prove the fact
that there has already been a foreign probate of a will
allowable in the Philippines and that the deceased left
property in a place other than the Philippines. Of
course, there will be a hearing on whether or not there
was such a probate. (Pluemer v. Hix, 54 Phil. 610). In
a sense, therefore, before the foreign-probated will can
have effect in our country, it must be proved and
allowed before our Philippine courts in much the same
manner as wills originally presented for allowance here

2) If no such foreign probate has been made, the

ordinary probate procedure is required. Moreover, it
must be shown that the foreign will has been validly
executed. It has been held in this connection that an
alleged foreign probate cannot be deemed one unless
it is shown that the court was a duly authorized probate
court and that the entire probate procedure there had
been complied with.

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