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.

59 thoughts on “Last Will and Testament: Basic Discussion

  1. Marbie

    I have a question..,
    If the dead relative was able to state her last will to a certain person and was able to sign it, will be granted as valid Last Will & Testament?
    Because based on our experience, my Aunt was able to state to whom and to where she wanted her properties to be given together with the funds that she has on her bank account. But my Aunt’s didn’t abide her wants when she passed away. They give it to their children instead of sharing it to us as to what she always wanted. Same with the funds in the bank, she divided every single cent of it to be given for specific person and organization, but we all found out that they distributed it to their own accounts. So, will I be able to follow up our rights for that? Hence, they have the copy of the will. I was signed by the owner, and their reason for saying it’s invalid is because there are no witnesses. so now all of her properties and bank account has been distributed according to their will and my Aunt’s will. Thank you.

    Reply
  2. Jeannie

    HI,

    may I ask what is Article 32 that SSS requires when you sell your house and lot that was already fully paid.

    thank you.

    Reply
  3. Ryan R.

    Hello po,
    ask lang po sana ako kung kailan nawawalan ng bisa ang will?, ano – ano po ang grounds para mawalan ng bisa ang isang will?, maari po bang mabago pa ang will kahit patay na ang testator?

    Marami pa po akong katanungan, pero maaari pong paki sagot ng mga una kong katanungan.

    Salamat po.

    Reply
  4. ruth

    gusto po malaman kung valid po kaya yung pagka executrix ko dahil po ako po ang inilagay na executrix ng asawa ko , nakalagay di po duon na ” to my wife ruth pantinople dorado acree, i give the house and lot located in etc etc ..” kso po yung pong kasal namin invalid..ngayon po dahil invalid po yung kasal nmin pati po ba yung pagkaexecuterix ko invalid na din? at pati mana ko invalid na din?? sa america po yung bahay at lupa na mana ko sana kasi po amercano po asawa ko dito po kmi kasal sa pinas. pls help me po ksi namatay na nga po yung asawa ko ngayon po yung mga anak nya yun nga ang sabi wala nakong karapatan dahil invalid yung kasal namin. tulungan po sana nyo ako gusto ko malaman kung invalid na nga yung nakasulat sa last will and testament ng asawa ko.

    Reply
  5. edwina

    Hello po! what if decedent left a deed of donation before he died. He died 25 years ago is it still valid for donation tax in the bir payment purposes? ..but his wife still living with 7 children his deed of donation had been notarized .

    Reply
  6. Maria

    Hi, Is there a way to know if my Dad made a Will? He died last July 31 in the Philippines and me & my sister (illigitimate children) were not able to go to his funeral in the Philippines because it was impossible for us to leave our jobs here in Spain. We do not have a very good relationship with our half siblilngs so we didn´t want to ask them. Here in Spain, there´s a government agency which handles the last Will of the deceased so you would know right away if you have an inheritance to claim. Please advise.

    Reply
  7. Lyn

    Is it legally valid to include a deceased person as one of the beneficiaries in the Last Will and Testament under the Philippine Law?

    Reply
  8. Mutya

    My four sisters, 3 older sisters and 1 youngest sister, made a Last Will and Testament for my oldest sister, who lives in Manila, 74 yrs old, singe/never been married, no children, who is physically disabled, cannot walk, and cannot read and see much anymore as her vision is already failing. My 4 sisters who made the Will for my disabled oldest sister intentionally excluded my name as one of the siblings/beneficiaries of my oldest sister/Testator in the Will. My sisters who made the Will and I had a dispute about it in the emails as we live apart – they live overseas – USA and Canada and I live in Australia. My sisters who did the Will gave me different alibis in regards to excluding me from the Will as one of the siblings/beneficiaries. I rang my oldest sister in Manila who is disabled and owner of the Will and told her about how my other sisters made her Will for her to sign. My oldest sister, the owner of the Will, did not agree to exclude me from her Will as one of the siblings/beneficiaries. She also told me that she could not read and see much anymore because her vision is already failing or partially blind. My other sister went back to Manila with the Will document for my oldest disabled sister to execute the Will.

    Is it legally valid for my oldest disabled sister to sign her Will even if she could not read and see properly? If she signed the Will without knowing that my name is excluded as beneficiary in the Will as she could not read and see much anymore, would it invalidate the Will? Can I protest the Will in Probate proceedings after my sister’s demise or while she is still living, or do I have to file a separate court proceedings to protest the Will after my sister’s demise or while she is still living?

    Reply
  9. Jenny

    Hello po, paano po ba gumawa ng holographic will? May format pa bang sinusundan or kung anuman ang gusto mong sabihin? Pls. Pm nmn po me.
    Equal rights po ba ang pagbigay ng property?

    Reply
  10. Rosa

    My Mom is from the Philippines and she has property there. She is now living in Canada and has become a Canadian citizen. She has a Canadian will in place. Will the Canadian will stand up in the Philippines?

    Reply
  11. zyria

    HI,
    need advise here.
    just curious what will happen to all our properties in the philippines if my husband and i passed away with a holographic will left only.

    I married to a Foreigner, we’ve been together 10 years now, and still have no children.
    My husband have 4 foreign daughters from western ex-wife(divorced) theyre all grown up now. and one son from filipina live-in partner (not married) before me.

    Sabi ng asawa ko gagawa daw kami ng holographic will. at di daw nya bibigyan ang 4 na anak nya na babae nanasa abroad living by themselves without parents since the were a kids (long story) in short not supported by father and mother. sabi nya ung batang lalaki lang daw ang bibigyan nya ng shares sa sides nya, at sa parents ko naman dito sa philippines ang bibigyan ko ng shares.

    we have few condo units (all joint accounts), 1 big farm, and 2 house and lots in philippines. lahat nato dahil sa pagsisikap naming dalawa . our relationship started with no money, no asset. we both working together to get all these.

    ang tanong ko po ay. wala po bang problema in the future kung gagawa kami ng holographic will, na walang shares ung apat na anak nya sa unang asawa. sa lalaki nmang anak nya may malaking lote naman po dito sa pinas na binili para daw sa kanya pag laki nya, they bought it before me.

    so kailangan pa rin ba namin bigyan ng shares ang anak nyang lalaki?

    all his children are living abroad.

    thank you po sa time. looking forward for good advice.

    Reply
  12. Pete

    Hi. Namatay tatay ko last February 2016, 7 kami magkakapatid at buhay pa nanay namin, 75 yrs old at may sakit. Pwede bang bagohin ng nanay ko ang will ni tatay sa grounds na unfair pagpamana? Nabasa kasi ng nanay ko at nakita niya na hindi fair dahil dalawa lang sa pito ang pinamanahan sa rason na mahirap yong dalawa.

    Reply
  13. Carlo

    Hi. I have a situation on-hand. I was an adopted son by my parents back in 1977, they had a biological son, my Kuya, he’s living in the US with his wife and 2 kids. When both of my parents passed away back in 1989 and 2004. 4 years after my brother died due to heart complication and I’m the one living decedent of the family. My mother has a property in Batangas, so kabilin-bilinan ng mother ko sa mga guardians ko which are my ( titas ) na bigyan ako ng 1/3 ng share sa property just by words, no written testament coming from my mother, now that property was already sold by my sister-in-law ( wife of my brother ) without my / our knowledge. My question is, will I be able to get a share of the property with or without a last will and testament from my parents? Can an adopted son is qualified since I’m part of the compulsory heirs of the family ?

    I will await for your timely response. Thank you.

    Reply
  14. Klarisse

    Good Day
    ,
    Can same-sex couples in Philippines use last will and testament to claim belongings and children under the name of their deceased partner? (If yes, up to what extent? Of course there are rights couples may only earn upon marriage. And if no, why not?) Please elaborate your answer.
    (This is for my thesis so it would be much appreciated if you cite a reliable source.)

    Reply

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