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.

34 thoughts on “Last Will and Testament: Basic Discussion

  1. Dianna

    Atty. Fred, I am a daughter of a filipina mother and an american father but is considered a foreigner. I purchased a property in the Philippines under my mother’s name believing that she can “will” it back to me so I can own it someday. She has since passed away and I would like to transfer the title to my name. What should be my first step? Thank you so much for any information you can give me!

  2. Adlemi

    I live in the US. My father, 79 years old and my brother (a handicap), 45 years old, currently live together in Manila. My mother passed away in 2009. My father hired a housekeeper (approxmiately 55 years old) shortly after my mother’s death. Within days, my father declared the housekeeper as his “wife” but they are not married. My parents own an income property in Manila (“subject property”). Upon my mother’s death, my father added my name into the the deed of donation of the subject property. I have the deed of donation in my possession. Recently, my father wrote his last will and testament, naming the housekeeper as the “caretaker” of the subject property and “caregiver” to my handicapped brother upon my father’s demise. I also recently learned that my father provides an undeserved monthly financial support to the housekeeper’s extended family in the province. QUESTIONS: 1) Is the last will and testament enforceable upon my father’s death? 2) Does the housekeeper and her family have a right to remain at the subject property upon my father’s death? 3) Can I recover the unnecessary monthly financial support being expended by my father to the housekeeper’s extended family? 4) Can I get rid of the housekeeper and her family upon my father’s demise? I believe my father is vulnerable and being taken advantage of. I will appreciate your response.

  3. yarmaenj

    good morning.
    gusto ko lang po e share. sabi po kasi nung abogado ng partner ko soon to be husband normally this coming march 20,may last will daw po na iniwan.nung una sabi daw po nung partner ko na after 40 days buksan yung will.kahapon binigay nya po pro ndi sa akin mismo sa kaibigan po naming.simple lng po.bondpapaer lng xa ni walang envelope.i have a shocked lang coz the last will was not written in my partners penmanship, it was written via computer..i read that there are 2 kinds of last will and both will must be written personal by the testator.nakalagay po dun sa last will na anak naming ang may karapatan.I have only to continue and manage what have to be.yong abogado po ang nakalagay na executor..i need some advice po.

  4. Marites

    My father died 3 months ago.
    He remarried in 1979, 8 months after my mothers death. They got 2 children. We were 5 children from the first marriage and one of my brother died for 5 years ago and has 3 children. One of my sister died for 26 years ago and left one adopted boy who lived together with my stepmother and father. So we are 3 remaining alive.
    My father owned a lot acquired from his first marriage.
    He own a house which I paid all the expenses for and this was built during his second marriage.
    I consider that the land is non conjugal properties since my mother and father acquired it together.
    Does my stepmother any right to the house?
    We sold a piece of land after my fathers death, how should we divide it?
    Looking forward for your advice.
    Thank you in advance.

  5. Elaine

    Hello po.
    My lolo died 9 years ago. My lolo has 2 properties, one in the US and the other in the Philippines. He has 8 children. He left a will for his land property in the Philippines with my Mom as the executor. In the said last will, only his two children who lived in the Philippines were included as heirs. In the US property, only 3 children were also included as heirs.The other 3 children were not included as heirs in both properties.

    I would like to ask if the land property here in the Philippines still need to be probate before it can be transferred to the two heirs? Is it really necessary even if the other children who already lived in the US are no longer interested in the property? How long does probate usually last? Is it costly?

    Hope you can help me with this matter. Thank you.


  6. Terri

    I’d like your opinion please.
    My father died with a will and my living mother attested that she agreed to the provisions. My father gave each of us 6 children a piece of the rice fields and the house was split into three owners (myself, a brother #3, and sister #3). The land where the house sits was willed to me. Brother #1 (on the prodding of his wife)wants to contest the will. They are saying the will was wrong and wants the land divided into 6. Brother #2 is not interested in house and land. Sister #2 maybe interested in getting some cash from the land (my thought) if divided. I know brother #3 can contest the will, but what are his chances of winning. My father did not give him part of house and land because he is the black sheep of the family.
    Million thanks for your response

  7. jen

    Good day,
    Here’s my situation:

    Lumaki po ako kasama ang lolo at lola ko, unang namatay ang lola ko then after 7 years namatay narin po ang lolo ko. Nakatira pa rin po ako ngayon sa bahay at lupa ng lolo’t lola ko kung saan ako lumaki kasama sila. Ngayon po ay pinagaawayan ito ng mga tito at tita ko, ang alam ko lang ay yung titulo ng lupang ito ay nasa bunsong anak ng lolo ko which is yung tita ko. May nakapagsabi po kasi sakin na family friend namin (at kapitbahay) na may pinapirmahan daw sa kanila ang lolo ko dati na kasulatan na meron daw po ako parte sa mana. Nung una ay binabalewala ko lang po yun, pero kahapon po ay bigla na lang ako hiningian ng 2 valid ID’s nung tita ko… nung tinanong ko kung bakit, ang sabi basta may inaayos lng daw sila about dito sa lupa ng lolo ko… napaisip po kasi ako bigla bakit nila kailangan ang ID ko.. dapat ko po ba sila bigyan ng kopya ng mga ID’s ko? Kung totoong may parte nga po ako sa mana, kaya po ba nila (mga tito at tita ko) na tanggalin yun sakin? Maraming maraming salamat po sa sagot na maipapayo nyo… magiging malaking tulong iyon sakin.

  8. Orlin

    Hi, sana po may makatulong, we have a photocopy of a holographic will of our late grandma, our names our stated there to have an equal share with the legitimate children. Ang problema po nmin ay itong pag probate, balak po kase nmin i probate itong photocopy na holographic will ni lola kaso di nmin alam kung ano ano yung dapat namin ihanda na papeles at kung magkano abutin yung gasto sa filling fee.pls help.

  9. gem

    good day!

    matagal na kami wla communication sa daddy ko siguro po 15years na.. hiwalay na sila ng mommy ko pero hinde po sila legally separated.. namatay po yung daddy ko and nasa kanya ung titulo ng lupa namin na conjugal property po nila ng mommy ko.. kakaretire nya lang din so i assume meron sya retirement money na nakuha.. hinde ko dn po alam mga bank accounts ang daddy ko.. incase po ba na hinde namin alam
    na mga anak nya ang account nya sa bangko my possibility po ba na sa mga kapatid nya mapunta un incase sila mgclaim at wala kaming knowledge mgkapatid dun sa existence nun? thanks po

  10. angelie

    good pm po regarding po sa mana ng mother k nakamatayan nya po eto nababanggit lang po eto samen o sa akin pero di po ganun ka detalye bago po sya mamatay my iniwan po sya saken sulat po ng atty regarding po sa share nya so ng nakabalik po ako sa pinas kinontak k po yun atty na ngpadala ng sulat sa mother ko . sinabi nga po na matagal ng my buyer yun property dun so patay n po mother k kya pinagagawa nya po ako na ibenebenta n namen yun share ng mother ko na sign up ng lhat ng anak at ipa notaryo pumunta po ako sa property sa butuan po so ok naman po lahat dun ang nagiging problema lang po ngayon ay bigla pong ng react yun eldest brother namen binypass dw po sya at bilang pg pirma po ang condition nya ay sya po ang kakatawan pra samen lahat ng pag aasikaso 3yrs na pong patay ang mother ko wala naman po silang ginagawa so napagkasunduan po sa butuan na ako na ang mg representative samen lahat napapirma ko na lahat pte na rin po yun mga anak ng namatay namen kapatid ang tanong po sir puede po bng i apply sa ganitong case ang majority wins hirap din po sa buhay ang mga kapatid ko at meron nga pong d nakapag enroll ngyon so malaking bagay po yun makukuha nilang share dito yun nga lng po ayaw pong pumirma nun eldest bro at 1 bro na brainwash nya 8 po kme yun 1 patay n 1 nsa US at yun youngest po nsa mental pa kailangan din po pra sa medication nya no choice na po kasi d rin po kme o ako papayag na sya ang mag representative dahil sa pgnanakaw nya saken so puede po bng majority wins pls po let me know po salamat po

  11. lendon

    hello po sana po matulungan niyo ako.. mayroon po ako lolo nagusto ipangalan samin iyong bahay lupa niya. wala po siya anak o asawa. mga pamankin na lang po. anak ng kapatid ni lolo na pumanaw na din ililipat po sana samin yun bahay. kaso di po kami umabot. nakasangla po kasi titulo at pinahiram po ng pinagsanglaan namin para lang malipat ngayon po ay wala na ang lolo namin. tinuring niya po kami parang tunay na anak at mga apo. kami po kasi mga favorite niya . ngayon po itatanong ko lang po kung mapapalayas ba kami sa bahay ng lolo ko. kahit nasa amin titulo tax declaration kami po ngababayad ng tax
    at may inwan po sulat handwritting si lolo na nakalagay na saamin pinamana… nakatira po kami sa bahay na yun since 1998. sana po mabigyan niyo kasagutan salamat po


Leave a Reply

Your email address will not be published. Required fields are marked *