The preparation of a Last Will and Testament is an important step in securing your legacy in accordance with your wishes. Although it may seem complicated, if you understood the legal context in the Philippines, it is fairly easy to do. This guide aims to help and clarify the entire process of preparing your Last Will and Testament to assist you in making sure your wishes are clear, clear legal instructions are established, and your wishes are properly carried out.
What is a Last Will and Testament?
Last Will and Testament is a legal document that details the testator’s (the one making the will) wishes regarding their asset distribution, funeral arrangements, guardianship of minor children, access to digital and bank accounts, and the executor of the will.
Who Can Write a Last Will and Testament?
Any person who is at least eighteen (18) years of age and of sound mind and above can make a last will and testament. In order to have testamentary capacity, it is not required that the testator possess all of his or her mental faculties at full strength, nor that the testator’s mind is completely free from impairment. It is sufficient that the testator, at the time of making the will, has mental capacity to comprehend the nature of the act to be accomplished, the value, nature and extent of the property being disposed of, and the persons who are the natural object of the testator’s bounty (Article 799, Civil Code of the Philippines). If you are a married woman, you can write your will without your husband’s consent.
What are the Different Types of Last Will and Testament in the Philippines?
Notarial Will
This type of will requires specific formalities and must be attested to and subscribed by at least three (3) credible witnesses and acknowledged before a notary public.
Holographic Will
This will is entirely handwritten, dated, and signed by the testator themselves, without the need for witnesses or a notary public.
How to Write a Last Will and Testament?
The requirements for writing a will depend on whether it is a Notarial Will or a Holographic Will.
Writing For a Notarial Will
According to Article 805 of the Civil Code of the Philippines, notarial will must be subscribed (signed) at the end thereof by the testator or by the testator’s name written by another 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, should sign on the left margin of all pages except the last page where the testator’s primary signature appears at the end of the will and the witnesses’ signatures appear at the end of the attestation clause. The will must be numbered correlatively in letters placed on the upper part of each page Further, the attestation clause must be in a language known to the witnesses for them to properly attest to the will..
Additionally, the following are the requisites for the execution of a notarial will:
Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public is not required to retain a copy of the will, or file another with the Office of the Clerk of Court, pursuant to Article 806.
If the testator is deaf or a deaf-mute, he must personally read the will, if able to do so; otherwise, he should designate two (2) persons to read it and communicate to him, in some practicable manner, the contents thereof, pursuant to Article 807.
If the testator is blind, the will should be read to him twice; once by the subscribing witnesses, and again, by the notary public before whom the will is acknowledged, pursuant to Article 808.
In the absence of bad faith, forgery, fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein should not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805, pursuant to Article 809.
Writing For a Holographic Will
A holographic will has simpler requirements.
According to Article 810 of the Civil Code, a person may execute a holographic will which must be entirely handwritten, 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 to be witnessed. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature, pursuant to Article 814.
Below are the things that must be kept in mind when proving a holographic will:
In the probate of a holographic will, it is necessary that at least one (1) witness knows the handwriting and signature of the testator and explicitly declares that the will and the signature are in the handwriting of the testator. If the will is contested, at least three (3) of such witnesses should be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be restored to, pursuant to Article 811.
The dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions, pursuant to Article 812.
When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time prior dispositions, pursuant to Article 813.
Is a Last Will and Testament Legally Binding?
Yes, a properly executed Last Will and Testament is a legally binding document. However, for it to take effect, it must first undergo a process called probate. Probate is the legal process by which a will is proved to be valid in court and accepted as the true last will of a deceased person. Once probated, the will becomes legally enforceable, and the executor named in the will can proceed with the distribution of the estate as per the testator’s instructions, subject to the laws on legitimate (forced heirship).
How to Know If a Last Will and Testament is Legitimate?
The legitimacy of a Last Will and Testament is determined during the probate proceedings. The court will examine whether the will complies with all the formal requirements prescribed by law for its type (Notarial or Holographic). Evidence will be presented to prove its due execution and authenticity.
What are the Reasons for Disallowing a Last Will and Testament?
In accordance with Article 839 of the Civil Code, the last will and testament is disallowed or denied probate for any of the following reasons:
If the formalities required by law have not been complied with;
If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
If it was executed through force, under duress, influence of fear, or threats;
If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
If the signature of the testator was procured by fraud; or
If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.
What Will Happen If There’s No Last Will and Testament?
If you don’t leave a last will and testament, your compulsory heirs will automatically inherit your assets at the time of your death.
How Does the Property Divided If There’s No Last Will and Testament?
Under the Civil Code of the Philippines, in the absence of a will, the property will be divided by the following:
If only the decedent’s spouse is left, he/she will get everything [Article 995]
If only the decedent’s child/children are left, the properties will be divided equally [Article 979]
If the spouse and their child/children are left, the properties will be divided equally [Article 996]
If the spouse and the decedent’s illegitimate child/children are left, both will get half of the properties [Article 998]
If the decedent’s legitimate and illegitimate children are left, the illegitimate will get a share of equivalent to half of the share of a legitimate child [Article 895, as amended by Article 176 of Family Code]
If the spouse, legitimate and illegitimate child/children are left, the spouse and legitimate child/children will get equal shares while the illegitimate child/children will get a share of equivalent to half of the share of a legitimate child [Article 999]
If the decedent’s parents and legitimate child/children are left, his/her child/children will get everything
If the decedent’s parents and illegitimate child/children are left, both will get equal half of the properties [Article 991]
If the decedent’s spouse and parents are left, both will get equal half of the properties [Article 997]
If the decedent’s parents and sibling/s are left, all of the properties will go to his/her parents
If the decedent’s spouse and sibling/s are left, both will get equal half of the properties [Article 1001]
Can You Enforce a Will While the Testator is Still Alive?
Yes, it is possible for a will to be “proved” or “allowed” by the court during the testator’s lifetime, a process known as ante mortem probate. This is done to establish the will’s authenticity and due execution of the will and to determine the testamentary capacity of the testator since he can testify to it. However, the distribution and transfer of property cannot be effective while the testator is still alive. The will is an act that takes effect only after the testator’s death.
Why Is It Important to Have a Last Will and Testament?
Having a Last Will and Testament offers significant benefits. One, it eliminates or mitigates risks of potential family disputes since a designated executor will manage the estate and execution. The testator’s minor child/children will be protected from disadvantaged family members by preventing them from becoming the child/children’s guardian. It also allows the testator to disinherit a compulsory heir, based on legal cause explicitly provided by law, and enables him to distribute his assets to someone who is not a compulsory heir. Additionally, it authorizes the testator to specify a condition upon which an heir may inherit a certain property or receive his share in the estate and may easily amend any provision in the will or revoke it during his lifetime.
Need further information and assistance regarding Last Will and Testament? Talk to our team at Duran & Duran-Schulze Law in BGC, Metro Manila, Philippines to know more about the requirements and process. Call us today at (+632) 8478 5826 or +63 917 194 0482, or send an email to info@duranschulze.com for more information.
