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.
I. “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”.
II. WILL VS. INHERITANCE
A “will” is different from “inheritance”. 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”.
III. WILLS VS. DONATIONS
A document entitled “last will and testament”, but provides that all properties must be transferred during the lifetime of the testator, is not a “will”. 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.
IV. 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; See Holographic Wills: Form, Requirements for Validity and Probate).
On the other hand, a notarial will may be printed, signed by the testator and at least three witnesses, and notarized. [See Notarial Wills: Form and Requirements]
V. ABSENCE OF WILL
A will enables a person to have control over the disposition of his/her estate. In the absence of a will (or if the will is not probated), 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.” [See also: Basic Concepts in Estate Proceedings and Extrajudicial Settlement of Estate]
VI. 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.
VII. REPROBATE
It is a special proceeding to establish the validity of a will previously proved in a foreign country.
VIII. DUTY OF THE CUSTODIAN OF A 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.
IX. ERROR IN TITLE OF DOCUMENT
Even if a document is not entitled “last will and testament,” it still can be treated as a will. In the 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.
- Extension of Filing Periods and Suspension of Hearings for March 29 to April 4, 2021: SC Administrative Circular No. 14-2021 (Full Text) - March 28, 2021
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- Guidelines on the Administration of COVID-19 Vaccines in the Workplaces (Labor Advisory No. 3) - March 12, 2021
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
Agnes, we are not allowed to comment on existing cases. Hope you understand.
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?
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.
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.
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
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…
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!
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.
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.
salamat
Hei,
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.
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.
Elaine