Last Will and Testament in the Philippines: 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.

Basics of Last Will and Testament in the Philippines

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.

P&L Law

81 thoughts on “Last Will and Testament in the Philippines: Basic Discussion

  1. 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
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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
  8. 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
  9. 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
  10. 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

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