Last Will and Testament | For Guidance and Understanding
One’s last will and testament may perpetuate his desire as regards his wealth even beyond his death.
This article will focus on the concept of testamentary succession, specifically the last will and testament. Succession under the law may either be testamentary, intestate, or a mixture of the two.
Testamentary succession occurs when a person executes a written document during his lifetime which provides for the manner and ways of dividing his estate or by depriving some heirs the right to succeed him, which will take effect at the moment of his death.
Tangible and Intangible Wealth
Everyone owns possession. Even hermit monks who live monastic lives and reject worldly tastes can acquire things of value. Some people amass huge amounts of wealth and luxurious materials while others are content with possession that can sustain a happy and simple life.
People can also acquire intangible and complex objects like intellectual property, debts, obligations, benefits, rights or trusts. As long as a person lives, he has the capacity to own and acquire properties and incur obligations. Nonetheless, just as certain as the sun will set tomorrow, so is a person’s eventual demise.
“Every light has its shadow and every shadow hath a succeeded morning”
Death is inevitable. When that day comes, the relationship of the person with his possessions is severed. Be that as it may, the properties left behind by a person will naturally court the interest of anyone especially those who have knowledge of these properties.
This is why the law on succession came to be, to bring order and prevent chaos in the administration and distribution of a person’s properties at the moment of a person’s passing.
Days before modern organized societies
During the age before organized societies, property was owned by the kinship in common and individual ownership did not exist since survival of the group was of paramount importance. Free alienation of property was done through sale, donation, or subterfuge such as when a person adopts the purchases as a son.
In the ancient Hellenistic world, a form of transfer of ownership almost similar to a testate succession existed when a person gifts another that shall take effect upon his death.
In ancient Rome, there existed a practice called a testamentum comiitis calatis where an assembly of men approves the adoption of a son by a childless aristocrat so that the family name would be perpetuated. Also in Rome, the familiae emptor came to be where a person purchases family property and acts as a middleman in the exchange of ownership.1
When the feudal system was developed, land ownership was limited to the ruling lords and royal blood although ownership over personal property was already established. Even then, conveyance of ownership over property through death was practiced only by the rich.
The Norman invasion of England introduced and institutionalized the practice of a testator being able to decree to whom his properties will go at the moment of death but leaving a portion of his estate which was ordinarily one-third, to his wife and children.
Ultimately, the kings were forced to enact statutes detailing the laws on succession and the manner of disposition, through a valid document called a will.
At present, Philippine laws on succession are heavily influenced by the Spanish Civil Code. Certain concepts like reserva troncal and legitime are Spanish legal developments.
What is a Last Will and Testament?
Generally speaking, a last will and testament is a legal document that details a person’s ultimate wish of who will get the properties he will leave behind. The settlement of some obligations or a certain duty to be followed for the peace of the deceased’s soul can also be incorporated therein.
Under the Civil Code of the Philippines,2 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, to take effect after his death.3
A will is one of the person’s rights to control and make his wishes known even after he no longer exists. It is incumbent upon him to settle and make his desires be formally laid down in a legally binding document to control the disposition of his properties and prevent anyone with no clear interest in his affairs from meddling in personal and family matters. Otherwise stated, it is the law which fixes the distribution of his estate, after his death
The making of a will is a purely personal act. The law grants the testator the right to control the disposition of his estate to the exclusion of others, except compulsory heirs. Its making cannot be left to the discretion of another individual, whether in whole or in part.4 However, a testator may leave to a third person the distribution of a specific property to a general or specified classes or causes.
The making of a will is a unilateral act. Thus, the acceptance of the heir during the lifetime of the testator is not necessary to make a will valid. A will may also be changed or revoked anytime during the lifetime of a testator.
The testator can alter some dispositions, deprive an heir from inheriting through an effective disinheritance, or destroy his own will, since, during the lifetime of the testator, his right to take over the distribution of his properties and wealth is almost absolute, for purposes of succession.
What are the two kinds of Will?
A will can either be notarial or holographic. The testator has the freedom to either make his will through the formalities of a notarial will or by entirely making it by his hand through a holographic will.
A notarial will is an attested last will and testament. It differs from a holographic will as to form. The law requires more stringent requirements for a notarial will to be valid.
A notarial will must be subscribed at the end by the testator himself or by the testator’s name written by someone else in his presence and at his express direction. It should be attested and subscribed by at least three credible witnesses in the presence of the testator and each other.
Every page of a notarial will should be signed by the testator and the witnesses where each page is correlatively paged. The witnesses and the testator need to attest to the truth and due execution of the will. A notarial will should be acknowledged before a notary public by the testator and the witnesses.
Owing to the strict requirements of a notarial will, it is less prone to forgery, undue influence, or other vices of consent since absence of any of the requirements would render the will void and not merely voidable. The law expects that a notarial will can help prevent the execution of simulated wills or other void wills.
On the other hand, a holographic will requires less strict formalities. It only needs to be entirely written, dated, and signed by the testator’s hand. It does not need to be attested to by witnesses or to be acknowledged before a notary public.
A testator has more freedom in the execution of a holographic will. He may do it anytime without the constraints of formal documentation. It may be done outside the Philippines subject to the rules on conflict of laws.
Regardless of the type of will, it should always be written because the law does not recognize oral wills or nuncupative wills. The reason is obvious, since a will should be probated or proved to be the act of the testator and compliant with the requirements of the law.
An oral will is prone to abuse and opens the doors to litigation at the expense of the estate of the testator and his heirs who are left in limbo of uncertainty as to their inheritance. Hence, there is no oral last will and testament.
What are the formalities of making a will?
In probate proceedings, the court’s jurisdiction touches upon the extrinsic validity of a certain last will and testament. The proceeding will go on to establish that the instrument offered is:
- The last will and testament of the deceased;
- Executed in accordance with the formalities prescribed by law; and
- That the testator had the necessary capacity at the time of the execution of the
However, if the party failed to establish all of the preceding facts, the last will and testament cannot be probated. Hence, it is necessary that the formalities of the will be completely complied will because probate of the will is mandatory and the allowance by the court is necessary for its efficacy.
Formalities in the execution of a Notarial Will
Article 804 of the Civil Code provides that every will must be in writing and executed in a language or dialect known to the testator. Jurisprudence provides that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary.
The law also requires that the notarial should be attested and subscribed in the presence of the testator and of one another. Thus, Article 805 of the said code specifically provides that:
“Article 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.5
“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.6
“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.7
“If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.”8
The Attestation Clause
Attestation is the act of the witnesses, certifying that they have witnessed the execution of the testator’s will in the presence of the other witnesses. Subscription, on the other hand, is the act of signifying the will by the testator and the witnesses.
If a third person signs for the testator, the act of signing must be done in the presence of the testator, under his express direction, and must be stated in the attestation clause of the will.
The attestation clause must state the following:9
- The number of pages in which the will is written;
- The fact that the testator signed the will on each and every page or that he requested another person to sign for him in his presence and under his express direction in the presence of the instrumental witnesses;
- The fact that the instrumental witnesses signed the will and all the pages thereof in the presence of the testator and of one another.
Aside from the attestation and subscription of the will, it must also be acknowledged before a notary public by the testator and the witnesses.10
It must be noted that the notary public cannot be an attesting witness because “to allow the notary public to act as third witness, or one the attesting and acknowledging witness, would have the effect of having only two attesting witnesses to the will which is in contravention of the provisions of the law.
One of the most important rules in notarial will is the substantial compliance rule.
It states that in the absence of bad faith, forgery or fraud, and undue influence, the defects and imperfections either in the form of the attestation clause, or in the language thereof shall not invalidate the will provided it is shown to have been executed and attested in substantial compliance with all the requirements of Article 805.11
Moreover, it is necessary that the manner of proving the due execution and attestation must be limited to merely an examination of the will itself without resorting to evidence aliunde.
Formalities in the execution of a Holographic will
A holographic will is one executed which is entirely written, dated, and signed by the hand of the testator himself. In this type of will, there is no form required, need not be witnessed, and may be made in or outside of the Philippines.
However, the disadvantage lies in the fact that it is easier to be falsified because it is only the testator who has knowledge of its execution.
Hence, one of the safeguards laid down by law is the three-witnesses rule which provides that if the will is contested, at least three witnesses must be presented who know the handwriting of the testator. Conversely, if the will is not contested, the law requires only at least one witness.
In cases of alterations or insertions, Article 812 of the New Civil Code provides that 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.
Yet, in special cases, 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 of prior dispositions.12
In all cases, when there are alterations or insertions made by the testator, he must authenticate it with his full signature.13
Is a handwritten will legal in the Philippines?
A handwritten will is legal in the Philippines. In fact, our law only recognizes written will but not oral ones because such can easily be invented by the claimant heirs.
Under Article 810 of the New Civil Code, “A person may execute a holographic will which 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.”14
Even a notarial hand written will may be considered valid if the execution thereof complies with the formalities of making a notarial will, though only written by the hand of the testator himself.
How do you execute a Last Will and Testament in the Philippines?
Filipinos must adhere to the Philippine law in order to write a will that is deemed valid and consequently can be probated.
Under the law, “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 this estate, to take effect after his death.”15
Furthermore, “every will must be in writing executed in a language or dialect known to the testator.”16
It must, then, follow certain formalities. It must be either executed, signed, and sworn to by the testator, or the person making the will, and three witnesses before a notary. Or it must be handwritten to its entirety, as the case may be, dated, and signed by the testator’s hand, as well.
In cases where the “testator is deaf or deaf-mute, he must personally read the will, if able to do so; otherwise, he is required to designate two persons to read it and communicate to him the contents thereof.”17
Witnesses to the execution of a Last Will and Testament
Any person of sound mind and of legal age, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will.19
If the witnesses who are considered competent at the time of attesting the will subsequently became incompetent, it shall not invalidate the will, and the same can still be probated.20
Disqualification of Witnesses
Witnesses to a will may be disqualified if they are not domiciled in the Philippines, or who have been convicted of falsification of a document, perjury, or false testimony.21
Another aspect of the will is the presence of three instrument witnesses. It should be noted that the beneficiaries of the estate cannot attest to the legality of the will.
In short, the witnesses must not be included amongst the people who are going to get a portion from the estate. The reason for this rule is to prevent a perjured witness, as he is most likely to testify as to the validity of a notarial will even though the execution of the same does not meet the legal requirements necessary for its validity.
If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.22
Legal Capacity of the Testator
The testator in signing his will must have a legal capacity to do so, or he is of sound mind. In other words, the testator must know and understand the nature of the properties he owns and his family relationships with the people noted therein, or otherwise saying, his compulsory heirs and the effect of such document after he died.
Thus, the testator should know:23
- The nature of the estate to be disposed of;24
- The character of his testamentary act;25
- The proper objects of his bounty.26
Legitimes and Compulsory Heirs
However, the freedom to dispose of one’s estate admits certain exceptions, one of which, is that the law retains the right of the compulsory heirs to portions of the deceased’s estate.
This follows that the testator cannot exclude his children and spouse from the will without cause. If a compulsory heir in the direct line is left out, it may result to the annulment of the institution of heirs.27 This is called Preterition.
What makes last Will and testament invalid in the Philippines?
As the law provides, since a will must always be in written form, it does not recognize any other modes of distributing or managing one’s own estate amongst the chosen, legal, or compulsory heirs and desired persons.
Thus, an example of a video recording of a person expressing his desire on how his estate is to be distributed amongst his heirs is not considered a will.
Another classic example is a letter that is private addressed to his children with a suggested manner on how he prefers should they divide the estate amongst themselves is not an enforceable will in court too, unless the same is a valid holographic will.
An improperly witnessed or signed notarial will is invalid. As stated early, a will should be attested by at least three instrumental witnesses, who must have affixed their respective signatures therein in the presence of the testator and of one another. Failure to abide by these, the will shall be considered void.
If the attestation clause is defective such that the same cannot be cured by simple reference to will itself, the latter shall be deemed invalid. Evidence aliunde is not allowed to cure such defect.
The presence of bad faith, forgery, or fraud, or undue and improper pressure and influence. Generally, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid, if it is proven that the will has been executed and attested in substantial compliance with the requirements provided by law.
In the event that one of the several dispositions became invalid, it will not invalidate the other dispositions, unless there is a showing that the testator would not have made such other dispositions if the first is to be invalidated.
Thus, to a challenge a will, the testator’s testamentary capacity and the formal requirements shall be put to a test during the probate of a will. The formalities of making a will and the legal capacity of the testator should be met and proved, respectively.
If one wants to invalidate a will then, they can likewise establish that the testator is not of sound mind when he executes a will, and there were infirmities as regards the qualifications of the witnesses.
With respect to challenging a holographic will, the person who desires to contest the same must prove that the will has not been written, dated, and signed by the hand of the testator himself.
Does the Last Will and Testament need to be notarized in the Philippines?
If the will is a notarial one, the law provides that it must be acknowledged before a Notary Public. This is not the case with a holographic will, which must be fully written, dated, and signed by the hand of the testator himself.
The law, in requiring the notarization, prescribes that “every will must be acknowledged before a notary public by the testator and the witnesses.” It must be noted that the formalities for the execution of wills should be strictly complied with; otherwise, the last will and testament is prone to being contested.
If one encounters a concern in connection with a last will and testament that is not notarized, he must inquire whether the said will a holographic will or a notarial one.
If the intention therefore that the will must be a notarial one, the lack of notarization, or not being acknowledged before a Notary Public, will render the will substantially defective, hence, void.
If the desire is to make only a holographic last will and testament, as will be discussed hereafter, the same should not be notarized, as the latter course of action will make it void.
Who cannot make a Will?
The one executing a will is called a Testator. The Philippine law states that “all persons who are not expressly prohibited by law may make a will.”
This is to say that provided they are disqualified by law, anyone can be a testator. The persons under the age of eighteen (18) years are expressly prohibited by law. Conversely, this means that, if an individual is exactly eighteen (18) years old, he may validly execute a will.
Under the law, as well, if a person is not of sound mind, he is disqualified to make his last will and testament. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.28
As stated earlier, it shall be sufficient for the testator to be regarded as having a sound mind at the time he executes a last will and testament if he knows “(1) nature of the estate to be disposed of; (2) proper objects of his bounty; and (3) character of the testamentary act.”29
The law also qualifies that the testator in executing a will must have testamentary capacity at the time of the execution of the will.
Therefore, the “supervening incapacity does not invalidate an already effective will”, this follows that “the will made by an incapacitated person cannot be validated by the supervening capacity.”30
How can one make a Will without a lawyer?
Lawyers can provide great help in making a will. These professionals are well-equipped with knowledge and legal expertise to ensure that formalities of a will are complied with and the testator’s wishes are acknowledged and will not be later nullified.
However, the assistance of a lawyer is not indispensable since making of a will is a personal act. Thus, a person can craft his last will and testament without a lawyer.
The following are the things that a person need to do if he wishes to make a will without the assistance of a lawyer:
First, he needs to familiarize himself with the requirements of a valid will under the Philippine Law if he wants to make sure that the Will that he will create will have legal effect. As much as possible, a person should read articles and books in relation to making of Will in the Philippines.
Second, by reading articles and books on the topic, he will know that he can make either notarial or holographic will. Each kind of wills has advantages and disadvantages as discussed above. For notarial will, he can start by making an outline of the will through encoding in computer software application such as Word.
The will as explained previously should be in any language known to the testator. It must be indicated in the will his full name, age, address, among others to avoid confusion to his identity.
It must also be indicated in the Will that he is of sound mind during the execution. Then, he can indicate and freely write his wishes and intention as regards the division of his properties as well as the administration. Also, he should number the pages of the will to avoid possible alteration or addition.
Third, after writing the content of the will, the testator should not forget to sign each pages of the will in the presence of at least three witnesses. The three witnesses should likewise sign in the presence of each other. Then, the witnesses should make an attestation at the end of the will and sign it.
Lastly, it should be acknowledged by a notary public. After following these steps, the testator should put the will in a safe place.
Another kind of will that can easily be made without an assistance of a lawyer is a holographic will. The same is totally handwritten, dated, and signed by the testator without the need of witnesses and notarization of notary public.
He can do this by using a regular paper and pen with clear ink. He can expressly write how he wishes to divide his estate. It must be his own handwriting and no one else. Otherwise, the same shall be void.
In addition, he should never make a mistake of asking another person to write in his behalf and thereafter authenticating it with the testator’s signature. Such holographic last will and testament will be considered void and without any legal effect after his death.
Can one make a Will in any piece of paper?
A person can make a Will in any piece of paper. There is no requirement set by the law as to the kind of paper that a testator should use in crafting his Will. The law is more concerned with the authenticity of the Will regardless where it is written.
As long as the dispositions therein can be clearly read, the capacity of the testator has been established, the formalities have been complied with, then the written Will has legal effect, after the testator’s death.
Is a handwritten notarized Will legal and valid under the Philippine law?
As discussed above, when the testator makes a handwritten notarial will, the same may be deemed valid it it complies with the formalities for the execution of a notarial will.
On the other hand, if it is a holographic will and the same is notarized, it now becomes invalid since it will not be anymore entirely written, dated, and signed by the hand of the testator himself.
Therefore, a handwritten notarized will is legal and valid under the Philippine Law provided the intention of the testator is to make a notarial will, subject to legal requirements effectively lid down for its execution. If the intention is to execute a holographic last will and testament, notarizing it will make the same void.
Last will and testament is one of the most important documents a property owner can execute during his lifetime. It is a fact that every person has only temporary right of ownership over his possessions. No matter how much hard work he exerted to acquire those properties, he will let go of those upon his death.
Before it happens, he is given under the law the right to decide where his estate would go through writing a Will. This is important so that the wishes of the person who toiled so much will be acknowledged and to assure him that his hard work will not go to waste.
He is given the right to pass it to his family and love ones and to other persons who are deserving despite not being part of his family.
The problem arises when, despite the validity of the testator’s wishes, it cannot not be probated because of the Will’s defects and imperfections in the formalities for its execution, as required by the law.
As an effect, chaos among family members would possibly happen. Hence, it is important that the Will is correctly and accurately executed by the testator himself, following the standards set forth by law, free from undue influence of others as well.
Upon the death of the testator, the heirs will now have vested right over the property. The heirs must be in good faith in handling the estate of the deceased. If they are indicated as administrator or executor, they should make sure that provision of the Will shall be followed.
Since, the decedent can no longer oversee the process of the distribution of the estate, the law will now use its scrutinizing eyes in order to protect the rights of the individuals instituted in the Will.
- Freedom of Testation
- New Civil Code
- Article 783, Civil Code of the Philippines
- Article 784, Civil Code of the Philippines
- Article 805, Civil Code of the Philippines
- Supra., Article 805
- Article 806, Civil Code of the Philippines
- Article 809, Civil Code of the Philippines
- Article 813, Civil Code of the Philippines
- Article 814, Civil Code of the Philippines
- Article 810, Civil Code of the Philippines
- Supra., Article 783
- Article 804, Civil Code of the Philippines
- Article 807, Civil Code of the Philippines
- Article 808, Civil Code of the Philippines
- Article 820, Civil Code of the Philippines
- Article 822, Civil Code of the Philippines
- Article 821, Civil Code of the Philippines
- Article 823, Civil Code of the Philippines
- Article 799, Civil Code of the Philippines
- Article 854, Civil Code of the Philippines
- Supra., Article 799
- Article 801, Civil Code of the Philippines