Last Will and Testament: Basic Discussion

Published by Atty. Fred January 26th, 2008 in Family and Property Law and Tax and Estate Law. 1 Comment
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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.