Executing new last will and testament
Dear PAO, My question is about my desire to prepare my new last will and testament to replace my old one. I was diagnosed with cancer more than a decade ago and, ina kneejerk reaction, I executed a last will in anticipation of my imp ending death. My cancer, however, is on re mission, and I’ m still alive and well despite my very old age. Considering this, and while I still have a clear mind, I want to prepare a new last will and completely set aside the old one. Can I do this? What do I have to do to set aside my old will? Please guide me. Thankyou. Astrud
Dear Astrud, Your desire to replace your old will with a new will is allowed under Philippine laws on succession. According to the New Civil Code of the Philippines:
“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, canceled 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, cancelation or obliteration are established according to the Rules of Court.”
This cited provision sets forth the manner of replacing a previously executed last will. As expressly mentioned, a last will and testament can be revoked by implication of law, by physical destruction of the will with intent to revoke it or by execution of a new will. This last manner of revocation of a will applies to your case considering your stated intention to execute a new last will. In other words, your act of making a new will can have the effect of revoking a previously executed will.
But in order for a new will to validly revoke a previous will, it is important that: the subsequent will either contains an express revocatory clause or is incompatible with the prior will, the maker of the will possesses testamentary capacity and the will complies with the formal requirements in the execution of a will and be subsequently probated ( Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession, 2006 citing Molo v. Molo 90 Phil 27, J. Bautista Angelo, citing Samson v. Nacal, 41 Phil. 838, J. Araullo).
It can be seen here that mere preparation of a new will does not automatically render a previous will inoperative. To effectively replace the old will with a new will, the latter must either expressly mention the intention to replace the old will, or contain a provision which is incompatible with the old will to signify the intention to revoke the old will. This, in addition to the requirement that the last will follow the formalities set by law and be probated by court, allows your new last will to replace your previous will.
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.