Upon death, a person’s assets should be taken care of by the family, relatives, or the state. However, this process sometimes causes issues or problems in the family, especially if the assets were not properly divided to the family left by the deceased. The term “last will and testament” is quite familiar to most Filipinos, yet many of us are not well-informed about the legalities and the process itself.
Simply put, the will is the act of allowing a person to control to a certain degree the disposition of their estate after death. The will determines to whom the inheritance will be given. In contrast, inheritance is the property or assets given or mandated to the person(s) stated in the will.
A will can be made by anyone who is at least eighteen (18) years old and has a sound mind while creating the will.
Definition of Terms
The testator is the departed who made the last will.
The legatee is the person given personal property, while the devisee is granted real property through the will.
The executor is the person entrusted to oversee the implementation of the will’s provision.
Types of Wills
According to the Civil Code of the Philippines, there are two types of wills: the holographic and the notarial will. Article 804 of the Civil Code also specifies that every will should be written and fulfilled in a dialect or language familiar to the testator.
A holographic will is handwritten and does not require witness testimonies.
The basic requirements for a holographic will to be considered valid:
- It should be entirely handwritten by the testator.
- It should be dated by the testator (at the bottom of the page).
- It should be signed by the testator (at the bottom of the page)
- Every revision or addition should be handwritten, countersigned, and dated by the testator.
- It should follow the law on compulsory heirs; otherwise, it will be deemed invalid.
A holographic will can be made inside or outside of the Philippines. As this will is easy to make, fraudulence may occur.
Thus, if you decide to make one yourself, make sure to provide enough proof. These include handwriting and signature samples to validate your will. It is also advisable to consult a psychologist to testify that you are of sound mind. While it is not a requirement to have witnesses, it could positively help.
In contrast, a notarial will needs to have an attestation clause supporting all claims stated are true. Other requirements stated by the law for a notarial will to be valid are as follows:
- The testator themselves and no less than three witnesses must sign the document in the presence of each other.
- If the testator cannot sign the will themselves, their name should be written and signed by another person, as directed by the testator.
- Every page of the will, except the last, must have the testator’s and their witnesses’ signature on the left margin of the sheet.
- All pages must also be numbered in letters on the upper portion of each page.
- The attestation clause should declare the number of pages of the will. It must also state that the testator has signed the will and every page of it.
- The attestation should also declare if another person had written the testator’s name.
- The document must indicate that this person, the testator and an instrumental witness, signed the will and all pages of the document in the presence of each other.
- The attestation clause should be in a language known to the witnesses. If not, it shall be interpreted to them.
- Every will must be certified by a notary.
Things to Remember
If the testator is deaf or deaf-mute and can read the will, Article 807 expresses that they must personally read it. If this is not possible, they should assign two persons to read and communicate their will to them.
In contrast, if the testator is blind, their will would be read to them twice by any witnesses and the notary public.
Any individual should also be aware of what can invalidate a will. For instance, the court may reject your will if:
- It was not performed and proven according to the law.
- The testator was mentally incapable or insane during the period of its accomplishment.
- It was made under the influence of fear or threats.
- It was obtained through unjustifiable pressure and influence by a person for their benefit.
- The testator’s signature was forged.
- The testator was deceived into signing the will without their intention.
Advantages and Disadvantages
In producing a will, one must weigh its advantages and disadvantages for their own good. The following are some of the benefits of creating a will:
- A will may enable the testator to have a property inherited by someone other than the compulsory heir.
- Disinheriting an heir can only be possible over a will and a court proceeding.
- Specific portions of the property may be inherited as wished.
- Exclusive provisions to adopted, illegitimate, or unwell children can be made.
Contrary to that, these are a few of its disadvantages:
- A Notarial Will needs to undergo a process to make it official.
- A Holographic Will is easier to make but is prone to fraud. Proof must be prepared beforehand for verification.
Any person should assess if they need to establish a will. Considering the legal repercussions, Filipinos considering to be a testator must be aware of the requirements and practices in creating a valid and legal will.
Sources:
R.A. 386 - The Civil Code of the Philippines (n.d.) The Lawphil Project. https://lawphil.net/statutes/repacts/ra1949/ra_386_1949.html
Britanico, A.F. (2021, May 10). How do you make a last will and testament in the Philippines. Lawyers in the Philippines. https://lawyerphilippines.org/2021/05/10/how-do-you-make-a-last-will-and-testament-in-the-philippines/
Lucero, Kareen (2021, June 23). How to Write a Last Will and Testament in the Philippines (with Free Sample). FilipiKnow. https://filipiknow.net/last-will-and-testament-philippines/
