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.

81 thoughts on “Last Will and Testament: Basic Discussion

  1. Kim

    Good day! I really hope that this is still active and someone could help me. My grandmother inherited a 1hectare land from her mother. She is already 83 years old. She is paralyzed. Seven out of her 9 children ang gusto mag-karoon ng parte sa nasabing lupa. Is it okay na ako, one of her grandchildren, ang sumulat ng holographic will niya? Salamat.

    Reply
  2. Andy

    hi i just want to clarify , may property kasing naiwan ang great great grandpa ko ang may hawak ngaun sa property ay ang kapatid nang lolo ko, pero yong pangalan nang nasa mother tittle ay sa great great grandpa ko pa — sa ngayon may blance pa sa taxes ang binyaran lang nila ay ang current tax— sa ngayon, pinapalayas kami nang mga anak nang inampon nang kapatid ni lolo ko, daddy ko pala ay pamangkin nang may dala nang properties— may right paba ang papa ko sa property nayon? kasi yong mga 2nd degree cousin ko na anak nang apon nag kapatid ni lolo ay ngayoy naghari sa property — yong kapatid ni lolo aya walang anak so, si papa at yung apon ni lolo ay mag cousin pariho silang pamangkin—-may right paba kaming mga apo umapila sa propperty nato?

    Reply
  3. Sharon

    Hi,

    Ask ko lang po kung possible ba na makuha nung tao na nkalista sa will and testament yung lahat ng ari arian nung ngsulat ng will, including sss,life insurance.
    Live in po kasi kame for 11years, married po sya pero matagal na po silang hiwalay ng asawa nya but not legally 17years na po sila hiwalay at wala ng komunikasyon, eh nung kumuha po kame ng insurance policy hndi po pwede ilagay na beneficiary ang live in partner kahit sa sss/philhealth, kaya po brother ang nilagay nya.
    Question ko po eh kpg may last will and testament po sya na nkalagay na yung mga beneficiary nya sa insurance at sa sss eh irerevoked nya to claim at wlang karapatan at ako na live in partner nya ang may karapatan at maaaring mgclaim ng mga iyon. Pwede po ba yun at mahohonored po ba yun.

    Salamat po

    Reply
  4. Tricia

    Hi, please I need answers po. Wala po kasi kaming enough money para mag konsulta sa attorney 🙁
    Here’s the case, my grandmother (father’s side) just died recently. Ngayon nalaman po namin na kasali ang lola ko sa isang lending cooperative called Sacdeco. Ngayon ang nakalagay po noon sa beneficiary niya ay kami ng dad ko. Which was changed on year 2015. Pinalitan niya ito ng name ng sister nya, which is patay na dn po pero buhay pa noong 2015. At anak nung kapatid nya. ang prob po gusto po sana ma claim ng daddy ko yung pera para pang bayad sa funeral service ng lola ko pero nalaman lang namin after nung libing na napalitan ang beneficiary. So ang only hope nalang daw namin is yung pinsan ng dad ko. Kaso they are not in good terms. Wala na po bang chancce na makuha namin yon? kasi d rn po namin alam if paano nla napapirma lola ko. There’s a possibility na sapilitan diba? Wala na po ba kaming magagawa or other option para ma claim yun?
    Thanks in advance for the response.

    Reply
  5. Rome

    Need advice PO regrding last will. The testator is Australian, there’s an ex wife and claims it’s her land? What else left or what else the beneficiary gets since the deceased testator is a foreigner? Does the ex wife gets everything or and decide where all the others written in the will goes? Please help..

    Reply
  6. Perry

    Hello, meron pong kasulatan ang nanay ko noon ana ipinagbili nya sa akin ang bahay at lupa sa halagang 100,000. Ito po ay may lagda niya, ng aking ama, dalawang witnesses at abogado. Ngunit ang kinatitirikan po ng bahay na ito ay kasama sa lupa ng aking ina na pumanaw na at ang akong mga kapatid ay nakatira doon. Isa po kaming compound, gusto ko po sanang mailipat sa akin ang titulo ng bahay at lupa na ipinamana sa akin ng aking ina. Ito po ba ay may laban, at posible po ba ang aking kagustuha. Na mahati ang titulo at mailipat sa akin ang pangalan ng bahay at lupa gayung patay na po ang aking ina. Maraming salamat po sa advice Godbless

    Reply
  7. Paolo

    I am married for 10 years and we decided to separate. walang annulment or divorce na ngyari. now meron na syang ibang kinakasama pero wala silang anak. If ever na gumawa akong ng holographic will para sa mga anak ko, pwede ko ba syang i disinherit? Waiting for your advice. Thank you

    Reply

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