Last Will and Testament: Basic Discussion

The settlement of a person’s estate after his/her death, based on our experience, is potentially one of the more bitter litigations. It’s never good to see relatives fighting each other. Some persons, with the intent of controlling the disposition of his/her properties after his/her death (and hopefully prevent fighting among his/her heirs over the properties left), prepare a “last will and testament”. Let’s have a brief discussion on this matter.

What is a “last will and testament”?

A “last will and testament,” or simply a “will,” is “an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate”. It is a document whereby a person, called the “testator,” disposes of his/her properties or “estate,” to take effect upon his/her death.

The “testator” is the deceased person who made a last will and testament.

The person who is given PERSONAL property through a will is technically called the “legatee,” while the person who is given REAL property in a will is called the “devisee.”

The person named in the will who is entrusted to implement its provisions is called the “executor.” If the “executor” is female, she is formally known as the “executrix”.

Is a “will” the same as “inheritance”?

No. A will is different from inheritance, which “includes all the property, rights and obligations of a person which are not extinguished by his death” (Civil Code, Art. 776). In other words, the basic difference between a “will” and “inheritance” is that a “will” is the document that determines the disposition of the “inheritance”.

If a document is entitled a “last will and testament” but it provides that all properties must be transferred during the lifetime of the testator, is this a “will”?

No. A will takes effect upon death of the testator. If the disposition takes effect before his/her death, it is a donation and is governed by the formalities of and legal provisions on donations.

What are the kinds of wills?

There are two kinds of wills — holographic and notarial. A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed (Article 810, Civil Code). On the other hand, a notarial will is governed by the following provisions of the Civil Code, among others:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

What happens if there’s no will or if a will is not probated?

A will enables a person to have control over the disposition of his/her estate. In the absence of a will, the general provisions of law govern the disposition of the estate of the deceased person. The proceedings in the absence of a will is called “intestate proceedings.”

What is “probate”?

“Probate” is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances.

A will may be probated during the lifetime of the testator. This way, the testator could himself/herself affirm the validity of the will.

What is “reprobate”?

It is a special proceeding to establish the validity of a will previously proved in a foreign country.

Can the heirs of the deceased person refuse to produce the will?

The person who has custody of the will has the legal obligation to produce it. The practical problem with this is when only a few persons know about the existence of the will and all of them agree not to produce it. This is one of the reasons why some testators sometimes entrust the custody of a will to their lawyers, who are then obligated upon death of said testator to enforce the provisions of his/her will.

In the case of Dy Yieng Sangio vs. Reyes (G.R. Nos. 140371-72 (27 November 2006), a petition for the settlement of the intestate estate was filed. The oppositors argued that the deceased has a holographic will and that the intestate proceedings should be automatically suspended and replaced by the proceedings for the probate of the will. A petition for probate of the holographic will was eventually filed. The Supreme Court ordered the probate of the will and the suspension of the intestate proceedings. According to the SC, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.

If a document is not entitled “last will and testament,” could it still be treated as a will?

Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled “Kasulatan ng Pag-Aalis ng Mana.” The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

5 Responses to “Last Will and Testament: Basic Discussion”


  1. 1 kramsa Feb 7th, 2011 at 6:24 am

    Good day to everyone need advice po here’s the situation;
    My wife’s parents passed away few years back and wala po iniwan na last willing testament para sa mga anak nila, 6 po silang magkakapatid including my wife, yung 5 po they decided na ibenta sa aming mag asawa yung property kaso yung titulo po ng lupa is nakapangalan pa po sa parents nila,Payag naman po kaming bilhin kesa sa iba pa mapunta ang problema po ay kung paano namin mapapatransfer yung name na nasa title and paano magkakaroon ng deed of sale kung pumanaw na po yung parents nila, sabi po nung mga hipag at bayaw ko is pipirma na lng daw po sila dun sa deed of sale pwede po ba yung ganun? Thank you in advance po sa mga mag bibigay ng advice. God bless.

  2. 2 Peter Erfe Apr 24th, 2012 at 6:01 pm

    Can one of the heirs to an estate consisting of commercial property which cannot be physically divided forced the other heirs to sell the property so that an equitable distribution of the property can be effected?

  3. 3 musa2009 Aug 7th, 2012 at 12:57 am

    hello po.

  4. 4 maalaala Jan 25th, 2013 at 12:12 am

    Hello po sa admin,mayroon po akong tanong tungkol sa last well..mayroon pinagawa na last well yung kapatid ng mama ko na lalaki na last well, at penepermahan ng lolo ko, but yung lolo ko, maysakit na cya at hindi na talaga feeling well cya,cguro hindi niya alam kung anong nkasulat doon sa paper, valid ba yun kahit may attorney naka sign, but yung attorney nka sign wala cya sa pag perma ng lolo ko..at may dalawang witness nka sign doon,mga matanda na din..cguro na bigyan ng pera yun nka pag witness… kung saan nka tira me ngayon, nga sabi ng ibang kapatid ng mama ko, at buhay pa ang parents ng mama ko, saamin dw yun, share sa mamako ang tinitirahan namin….namatay ang mama ko dahil sa lungkot, na wala pala cyang share…sana po mkapag reply kayo saakin..kasi naawa talaga ako sa kapatid ko,pinapaalis, at palagi nag wild yung asawa niya sa ka gustuhan na mkaalis cla….

  5. 5 crazytel12 May 27th, 2013 at 1:55 pm

    Hi.. Pwede po makaask.. My dad died leaving the family a house and a car , and his insurances all under his name and my mom as the beneficiary. He has 5 children po . 4 of us dont want a claim on the properties except for the insurances that he left that may amount to 1 million pesos. The problem is my mum and our eldest brother dont want to share anything to us because according to my mum she has the sole right on the claim since she is the only one under the beneficiary. She havent had any job so she said that is her only means to live.
    but she is also a benefiary to my dads pension since he is in the military service that may amount to 25000 per month that we think is enough for her. We dont really have a very good relationship with my mother since she only favors and listens to one person , my brother ,whom we felt never really deserve anything coz they both made my dads life a hell when he was still alive. Do we have the right to this claim? We dont really want a legal settlement on this since we are family and it is not really a big money.
    and the only reason why we want to claim for this money is that my mom is an extravagant spender and show off. I may sound bad as a son but that is the truth. Our relationship has gotten worse whne my dad died and personally I blame her and my brother for my dads death.

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