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.

21 thoughts on “Last Will and Testament: Basic Discussion

  1. kramsa

    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.

    Reply
    1. Boyet

      Hi based on my opinion, the siblings may settle first the estate of the
      deceased, once the settlement is done and the title already transferred
      to the respective siblings, that is the time you may execute a Deed of Sale
      with your spouse and her brothers.

      From
      Self Study

      Reply
  2. Peter Erfe

    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?

    Reply
  3. maalaala

    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….

    Reply
    1. Francis

      Please for your advise,
      Situation:
      My Father – illegitimate Child
      My Uncle- Older than my Father
      Grandmother Married with American Citizen father of my Uncle and they live in United states.
      Years ago the Husband of my Grandmother died first the few years back my Grandmother died also.

      His mother and older Brother was living in America and apparently our Lola died few years back during the time when our grandmother is alive my father is the one taking care of the property of my Grandmother herein Philippines and we are not having problem, in fact the property original titles and other documents was given to my father and was also indicated that the property was acquired during she was single, due to good faith my father was so trusty with his half brother and he’s thingking that because he’s brother is well living in States he assume that problem between them will not occur and because they have same mother and by blood the bad situation will not arise.

      Now the problem is my uncle want to get all the property of our grandmother without giving any single piece to my father including the house the my father build and we live for more that 40years, year ago without knowledge of my father our uncle secretly transferred all the property to his name and he is showing Last will and testament which in the will indicated that our Grandmother executed a will transferring his property to his husband which is an American citizen and note that the husband died before my grandmother. with this my father filed a case which is falcification of documents because he don’t agree and believe with the Will that my uncle is showing.
      Now the Atty. of my uncle sent us letter indicating that my father need to vacate the property of my grandparent and leave the house and other building that my parents build for years.

      Please for your advise what will be my father legal remedies for him to fight for his right over the property of our Lola.

      Reply
  4. crazytel12

    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.

    Reply
  5. christy

    Hello Crazytell,

    Since your mother is the sole beneficiary of your father in his insurance policy, she is the only one who can benefit from the proceeds of the insurance money. This is according to the provisions of the Insurance Commission unless your dad left a will that mentions a certain percentage of the insurance proceeds will be shared or divided by the members of the family.

    Reply
  6. Arnold

    HI,I am from the USA and been in the Philippines for about three years ……Have been living with my girlfriend for over two years,,,,,What type of will do I need where she can get my belongings if something happens to me?

    Thanks

    Reply
  7. Au

    My parents made a Deed of Donation in 1996 giving to me and my two siblings several hectares of land they own inside an urban area. A number of incidents have transpired since that time, including my mother’s passing, and my sister and her husband engaging in activities such as disposing of cattles, etc. entrusted to them but which they had no right to dispose of since these belong to my parents. My father has also changed his mind about this donation. He maintains that the Deed of Donation was never valid because it was not registered, nor accepted by us siblings. On the document itself, my two siblings and myself, affixed our signatures, which all along meant, our acceptance.

    Please enlighten us on this matter. What does acceptance comprise? Would it still be valid if it was never registered, despite having been notarized, etc.?

    Thank you for your kind attention.

    Reply
  8. riah

    gdday!

    i would like 2 ask f the illegitimate child of my husband cannot ask anything from our conjugal property f he left a last will and testament (which d illegitimate child s not mention)?

    pls advise. ur reply s much appreciated. thank u n godbless

    Reply
  9. onetwothree

    Hi,

    What if the holographic will was burnt by one of the relatives but an existing photocopy is available? is that still valid? all the components of the holographic will is there. A barangay statement was also made saying that the will was burnt.

    What should we do?

    Reply
  10. AGNES

    DEAR SIR,

    HI! MAY KASO PO AKO. BAGO PO MAMATAY MOTHER IN LAW KO, MAY PINIRMAHAN PO KMI MAG ASAWA NA PINAMANA PO SA AMIN YUNG ISANG BAHAY NILA SA PROBINSYA. NAMATAY NA PO ASAWA KO, WALA PO KAMING ANAK. DI PO KLARO KUNG MANANAIG YUNG LAST WILL AND TESTAMENT NA SA AMIN PA RIN YUNG PROPERTY O SA MGA KAPATID NG ASAWA KO. NAGHAHABOL PO KASI KUNG SAKALI MAIBENTA YUNG PROPERTY.

    SALAMAT PO.

    AGNES

    Reply
  11. piscies

    kasal kami ng asawa ko, namatay siya may last will and testament. ang lupa at bahay namin ibinigay sa anak namin {menor de edad pa}, ibang tao ang executor ng last will and testament niya. sabi ng executor bawal akong tumira sa bahay namin. Siyanga nga pala. hiwalay kami ng asawa ko dahil marami siyang babae, may 3 pa siyang anak sa labas pero ako, faithful ako sa kanya. Bilang asawa niya. wala na ba akong karapatan tumira sa bahay namin?

    Reply
    1. JJ

      Ask ko lang po, incase a mother leaves a last will and testament to hand over her house and lot to one of his 2 sons, will it leave the other son with nothing and there is nothing that he can do about it po? kahit wala siyang alam about sa last will and testament.

      Reply
  12. shane

    hello po, ask ko lang po, kasi po may pinirmahan pong last will and testament ang lolo ng asawa ko na nakalagay sa pinamanahan is yung biyenan kong lalaki, na tatlo silang maghahahati sa lupa isa dun is yung biyenan kong lalaki. kaso namatay na po ang biyenan kong lalaki ngayon po ang mga kapatid ng byenan kong nasa america is pinapalayas ang asawa ko at mga kapatid nya sa lupa na pinamana ng lolo nila sa byenan kong lalaki. at ang sabi ng tita nilang nasa america wala na daw po silang karapatang tumira dun at patay na ang byenan kong lalake. at invalid daw po ang hawak nilang last will and testament. at ang sabi pa po eh ipapabuldozer ang bahay nila at ang bahay naminng mag asawa na ginagawa sa lupa ng byenan kong lalaki. anu po ang magandang gawin? yung titulo po pala ng lupa eh hawak ng tita nila at ayaw ibigay. pero nakapangalan pa po yun sa lolo at lola ng asawa ko. salamat po.

    Reply
  13. LARISSA

    Hi!
    May Kaibigan po ako ngayon na tinutulungan at Gusto ko lang po sana malaman kung anong legaledad ang nararapat nyang gawin, nagiisa po syang anak at ang parents nya ay hiwalay simula 4 years old sya at lumaki sya kasama ng kanyang mother, may 2 na syang anak ngayon at nagkaroon sila ng di pagkakaunawaan ng kanyang mother na 84 years old na pero may boyfriend na may asawa at ang gamit na apelyedo ay yung sa lalaki. ang negosyo ng nanay nya ay sa palengke pagpapautang (5/6) ito ang kanilang business. dahil sa pagsita ng aking kaibigan sa kanyang nanay ay pinalayas sila nito kasama ang dalawa niyang anak. at kinasuhan pa sya ng robbery pero na dismiss ang kaso dahil sa wala itong katibayan at gawagawa lamang at pinalalabas ng kanyang nanay after 38 years na ampon lamang sya subalit pagdating sa mga legal na katibayan bilang anak lahat ng sinasabi ng nanay nya ay hindi totoo legal na anak sya authenticated lahat ang kanyang mga papeles nagpapatunay na anak talaga sya, at ang mansion nila ay nakapangalan sa kaibigan ko at sa nanay at sa dating naunang boyfriend pero patay na ito ngayon at sa titulo ang ginamit na apelyedo ng nanay nya ay apelyedo ng kanyang dating namatay na boyfriend, ito po ba ay legal? paano po ang dapat gawin ng kaibigan ko gusto na nilang umuwi pero pinagbabawalan sila ng nanay nya at pinagpipilitan na wala syang karapatan dahil ampon lang sya at pati mga barangay at police ay gwardyado sa labas ng bahay nila ang kasama ng nanay nya ay yung pamilya ng kanyang boyfriend at lumalabas na may threat at ang kaibigan ko ang pinagbibintangan. Kailangan ko po ang payo ninyo at malaking tulong po ito sa kaibigan ko at mga anak nya na hindi na nakapag aral yung isa kasi hindi ko po kayang suportahan dahil college na, at bilang kaibigan sobra po akong naawa sa kanila dahil alam kong mali ang mga nangyayari at biktima lang sila ng mga taong ganid sa pera. paano po makakauwi sa kanilang bahay ang kaibigan ko at sa mga nangyaring problema nila ng kanyang nanay may karapatan bang habulin nya ang lahat ng mga ari arian na unti unti nang binigay at inilipat ng kanyang nanay sa kanyang boyfriend? pwede ba nya sabihin sa nanay nya na may karapatan din syang tumira doon? paano kung ayaw pumayag ng nanay nya? anong dapat nyang gawin?
    Maraming salamat po at umaasa po ako na sana mabigyan nyo ito ng pagkakataon na masagot para maging gabay sa mga hakbang na dapat nyang gawin.

    Mabuhay po kayo!

    Larizz

    Reply
  14. Ahiezer A.

    Just wanna ask po..as a only son….pwede po ba ako tumangi kung sino po ang ilalagay sa last will and testament…? or is there a way para po ma prevent ito….pls help me po…

    Reply

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