New will should be probated

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Persida Acosta

Persida Acosta

Dear PAO
I want to change the contents of the last will and testament I have made a few years back. I already had it notarized and entrusted to my lawyer.Some of my supposed heirs have died already and I decided to simplify the sharing of my estate through my last will. Because of this, I deem it necessary to replace my old will with a new one. I hope you can advise me on how to go about this. Thank you very much and more power.
Enema

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Dear Enema,
The manner of changing and/or revoking a last will and testament is provided in the New Civil Code of the Philippines which states 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, cancelling, 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.”

As mentioned in the above cited law, 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 situation, 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.

It should be noted, however, that the 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).

Simply put, 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 need to 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.

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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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