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.

68 thoughts on “Last Will and Testament: Basic Discussion

  1. John Paul

    Good day everyone, I need some legal advice on this:

    My father, his two brothers(my uncles) & sister(my aunt) live in a compound (residential compound) owned by my grandfather.

    In our compound there are 3 houses, one that is supposed to be given to my uncle(youngest), a duplex that is occupied by my aunt & other uncle, and one house that my dad occupies(which would be given to my aunt later on, since my lolo had a lot that was supposed to be given to my father to build his own house with when he can be able to afford to)

    When my lola got sick, my lolo under the influence of my aunt was urged to sell the lot that was supposed to be for my father, so the lot was sold to another person, because of this, my father’s family had a family meeting. In their meeting my lolo promised to give the house that was supposed to be for my aunt to my father, but this was not done in contract.

    Now my lola is gone and my lolo is getting sick (and is getting easily persuaded), my aunt tends to come to my lolo frequently, my fear is that my aunt could be influencing my lolo to make a Last Will & Testament that will give her the house my dad occupies since my dad has improved the house through the years we occupied it.

    My question is, can my father contest the will (if there is any)?

    Reply
  2. Adrian

    I have a question? what are the legal steps to make a will that is also honored in the Philippines. I live here in States and have dual citizenship and have property in the Philippines.

    Reply
  3. Philip

    Good afternoon!
    Ask ko lang po . My aunt left a last will and testament for the proper dosposition of her real and personal properties to her six children. She has designated the youngest the executor of the will. Will they still be needing an extra judicial settlement documentsto transfer the titles of the real properties to their individual names or just ask the executor to probate the will in court for the purpose of transfer. Pls enlighten us on this. Thank you.

    Reply
  4. Jeffrey

    Lolo ko po ay isang mayaman na tao nag kahiwalay po sila ng lola ko matagal na panahon na ang nakaraan, yung mother ko at mga kapatid niya naiwan lahat sa lola ko mula nag hiwalay ang lolo at lola ko hangang ngayon wala na kami balita sa lolo ko gusto ko lang namin malaman kung may iniwan na pamana ang lolo ko sa mother ko at sa mga kapatid ng mother ko pano namin malalaman kung meron nga at kung saan kami pupunta ahensya salamat po

    Reply
  5. Rito

    Hi, hopefully this article is still active and that you can give me some advice.

    Situation:
    My wife’s mother has passed and left a notarized will. In the will, her mother disinherited her spouse (father). Recently, the RTC, dismissed the probate of the will due to the following:
    1. The notarized will was not signed on the left by the testator and the 3 witnesses (which is weird because this page is the last page where the testator and the witnesses signed at the end)
    2. The testator failed to put a valid CEI. In defense, our atty. mentioned in the appeal that the testator is known to the notary. (The notary is the 1st cousin of the testator’s sister in law). “However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him (Rule VI Sec. 2 [6], Rules)”
    2. There is a disinheritance of the spouse that automatically nulls the will (Really?, but the civil code allows disinheritance of the spouse).

    The case is now in the Court of Appeals.
    Question: Does the will have a chance to be put back to the RTC and have it probated?

    Thank you.

    Reply
  6. LIza

    Matagal napo ako na may boss na matandang dalaga. For almost 8 years napo kaming magkasama, sa hirap at mga sakit madami na kaming napagdaan sa buhay. Pero, nauwi ito sa pag mamahal ko sa kanya na tinuring ko ng isang tiyahin. Napahirap po ang wala napo syang mga compulsary heirs. 73 years old napo sya at babae. Wala napo syang ina at ama ito ay yumao napo at kapatid. Sya na lamang ang nag-iisang naiwan sa kanyang pamilya. At dahil dito halos ako na ang kanyang tinuring na pamilya. Ako po ang ang nag-papalago ng kanyang mga kabuhayan sa ngayun at bilang legal representative. Madalas po nya sa akin sinasabi na ikaw ang mag-mamana ng lahat ng itong aking mga ari-arian. Pero ako ay natatakot at madalas nababahala sa aking setwasyun. Sa kadahilanang meron po syang mga pinsan sa father side na first degree cousin na nag-hahabol sa kanyang mga ari-arian. Itatanong ko lang po AKO BA AY MAY KARAPATANG MAG_MANA SA KANYANG WILL NA TANGGAPIN LAHAT NG PROPERTY nya. PANO PO KUNG AKO AY EH CONTEST NG MGA PINSAN SA AMA.

    Reply
  7. Ester

    Paanu po gumawa ng will may kasosyo po kami mag asawa s pag ahente po ng hardware matls. ang usapan namin dun share ng 3 katao ang total amount ng pera Kaso po malubha n sakit nya at gusto nya n ung parte nya ay s anak nya mauwi kasi mag naghahabol n kamag anak panu po gagawin s last will nya

    Reply
    1. Ester

      Kailangan b ilagay din pangalan at pati amount ng sharing dun sa last will ng ka share namin kahit dun s anak iiwan ung parte nya lang

      Reply
  8. Louisse

    Hi good afternoon!

    I got confused with this statement.. “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.” Thus this override the provision in computing estate taxes? As far as I remember this is called transfer in contemplation of death, so thus part of estate tax. The will may not be called “last will and testament”, but not in all cases that the legal provisions on donations will apply.

    Reply
  9. Rosemarie

    My dead parents executed a last joint will and testament in 1990. IT was opened in May 2017 when my father died. My mother passed away in 2008. The will was brought out due disagreement on division of inheritance. Both my parents emphasised to my sister n I that the will will be opened should there will be problems of dividing the inheritance if no problems the will need not be taken out. Unfortunately my brother contested our father’s car as to ownership hence the will appeared. Upon investigation we learned that it was not valid since it was a joint will. Are the wishes of parents be disregarded?

    Reply
  10. MARGAUX

    Hi good day. Tanong ko lang po kung halimbawa na hindi ako tunay na anak ng parents ko pero sa birth certificate ko po nkasign ang parents ko. Bale pnalabas po na galing tlga ako sa mommy ko am i legally adopted or not? Wala po akong adoption papers kase nga po pinalabas na anak tlg ako ng mommy ko.

    Reply

Leave a Reply

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