• New will must contain clause that revokes previous will

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I made my own last will and testament two years ago which was already notarized and given to a trusted family member. Since then, a lot has changed including my relationship with my family and the person to whom I entrusted my will died already. Because of this, I’d like to make a new last will that substantially changes the content of my old will. I’d like to know how I can make a new last will and testament that will replace the first one I made. I hope you can help me. Thanks!
    Glory

    Dear Glory,
    The Philippine law on succession specifically provides for the manner of changing a last will and testament and replacing it with a new one. The

    New Civil Code of the Philippines provides that:
    “Article 830. No will shall be revoked except in the following cases:

    (1) By implication of law; or

    (2) By some will, codicil, or other writing executed as provided in case of wills; or

    (3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.”

    It can be seen from the above cited law that a last will and testament can be revoked either by implication of law; by physical destruction of the will with intent to revoke it; or by execution of a new will. In your case, the last one applies since you mentioned that you wish to make a new will wherein such act of making a subsequent will can have the effect of revoking your old will and rendering it ineffective.

    However, mere preparation of a new will does not automatically render the old will inoperative. In order to have a valid revocation of a will by a subsequent will, it is important that: the subsequent will complies with the formal requirements in the execution of a will; the maker of the will possesses testamentary capacity; and the subsequent will must either contain express revocatory clause or is incompatible with the prior will; and that the subsequent will be also probated. (Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession, 2006)

    In other words, to effectively replace the old will with a new will, the recent will must either expressly mention the intention to replace the old will, or contain provision which is incompatible with the old will as this signifies the intention to revoke the old will. This, in addition to the requirement that the last will follows the formalities set by law and be probated by Court, is what you must do to replace your old will with a new one.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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