Legal Matters – Page 3

Have you ever thought of making a last will and testament? Perhaps it did not cross your mind because most live without the thought of dying one day. However, as death is inevitable, settling your affairs while still around is filled with practicality. It will give you peace of mind that your wishes are carried after you are gone. It also prevents a scenario where your loved ones quarrel over an inheritance. In this article, let’s dive into what a last will and testament is and how you can make one. I’ll provide you tips and techniques as well as answers to your most frequently asked questions. DISCLAIMER: This article has been written for general informational purposes only and is not legal advice or a substitute for legal counsel. You should contact your attorney to obtain advice with respect to any particular issue or problem. The use of the information contained herein does not create an attorney-client relationship between the author and the user/reader. What Is a Last Will and Testament? Article 783 of the New Civil Code1 defines last will and testament (or simply a will) as 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. Let us say you are married with three legitimate children and one illegitimate child. You have several properties, including a house and lot, personal properties, and a business. You now plan to draft your own last will and testament. Here are the basic concepts and terminologies you should know: As the person who makes the will, you are called a testator. When you die, all your properties, both personal and real, are called your estate. All the persons named in your will who will receive your estate are called your heirs. Your legitimate and illegitimate children and your spouse (also your parents if you have no children) are called your compulsory heirs. The portion of your estate that you cannot give to another person because it is reserved for your compulsory heirs is called legitime, whereas the other portion you can give freely to others (e.g., friends) is called a free portion. If you give personal properties, the receiver is called a legatee, and if real property, a devisee. Related: What are the inheritance rights of an illegitimate child in the Philippines? Who Can Write a Last Will and Testament in the Philippines? All persons of either sex and above eighteen (18) years old who are not expressly prohibited by law may make a will. If you are a married woman, you may also make a will even without the consent of your husband. You can dispose of all your separate properties as well as your share in the conjugal properties. What Are the Different Types of Last Will and Testament? There are only two types of will in the Philippines - notarial and holographic. 1. Notarial Will As the name suggests, a notarial will is a will that is subscribed, attested, and acknowledged before a notary public. A notarial will must have at least three (3) credible witnesses who will attest that the testator wrote the will in sound mind and memory and later signed the document in the presence of one another. The will is required to be notarized. Who can be a witness to a notarial will? A witness must be: at least eighteen (18) years oldof sound mindnot blind, deaf, or dumbable to read and write If you are not living in the Philippines, or if you have been convicted of falsification of a document, perjury, or false testimony, you cannot be a witness to a will. 2. Holographic Will A holographic will is a will that is entirely hand-written. Contrary to a notarial will, a holographic will need no witnesses, no other formal form, and can be made even if you are outside the Philippines. Notarial Will vs. Holographic Will: Which One Is Better? Some testators prefer to write a notarial will as they want advice from a lawyer. A notarial will is formal with witnesses who can, later on, testify during probate proceedings. A copy of the holographic will might get lost, and because it has no witnesses, the testator’s wishes might not be carried out. On the other hand, others prefer a holographic will because it is simple to make and is not required to observe strict formalities. It is also practical if the testator has no access to a notary (e.g., when sick or bedridden). One mistake in executing a notarial will might cause its disallowance. In addition, it does not cost anything. Whether you make a notarial will or a holographic will is perfectly okay as both are valid in the Philippines. The choice is up to you on what is practical and convenient given your circumstances. Should You Write a Last Will and Testament? The prevalent mindset among Filipinos is that only the wealthy should make a will. However, even if you are not rich, you can make a will because it provides the following benefits: It gives you comfort that your wishes are carried out even after you dieYou have control over how your properties are distributed. You get to decide what property is given to whom based on who needs it the most or the level of your love and affection to certain heirs.You prevent potential quarrels and disputes among your heirsIf you want to disinherit a compulsory heir, you can do so only through a will. However, the disadvantage of having a will is that a court proceeding is still needed to distribute your properties. Heirs will not get your estate automatically when you die. Also, if you only have one or a few properties and you are certain you will leave all of them to your compulsory heirs in equal parts, it might be practical to no longer make a will. If you trust that they will divide the properties equally even if you are not around, it might be best to let your compulsory heirs divide it among themselves through an Extra-Judicial Settlement. Dos and Don’ts in Executing a Last Will and Testament At the onset, it is best to do the following when planning to write a will: Decide if you intend to write a notarial will or a holographic willShould you decide on a certain type, ensure you follow the prescribed form so that your will is not disallowed/invalidated during the probate proceedingsMake an inventory of all your properties Make a list of all your heirs and assign who gets to have whatIf you have compulsory heirs, make sure not to dispose of/give their legitime to other persons How To Write a Last Will and Testament in the Philippines: A Step-by-Step Guide Writing a will requires certain formalities to be valid. There were cases that reached the Supreme Court where a will was disallowed because it did not conform to requirements. To avoid this scenario, below is a guide on how you can make a valid will. 1. Notarial Will Step 1: Download the free editable last will and testament template below. You can work on this template to guide you in making your dispositions. Free Downloadable Last Will and Testament Template Step 2: Fill out the items in red. Your personal circumstances (name, civil status, name of the spouse if any, and address)In item I, list or describe all your properties, both real and personalIn item II, write your dispositions or how your properties will be distributed among your heirsShould you acquire additional properties after you wrote your last will and testament, state how you want them to be distributedIndicate who will be your executor. An executor is a person you appointed who will carry out your wishes. Indicate a substitute should the executor be unavailable.Write the names and addresses of your witnesses (at least 3) in the attestation clause. Please note that this is just a suggested format. You can add as many statements as you wish. Some testators like to include their desired burial rights and statements/declarations of love and affection to their heirs. Step 3: Once you have filled out the details, including the acknowledgment, print copies of your will. You may print as many copies as you deem necessary. The notary public is not required by law to retain copies of your will. Step 4: In the presence of the notary public and your witnesses, affix your signature on the left margin of each and every page of your will except the last (the signature portion, attestation, and acknowledgment). The witnesses shall likewise sign in the same manner. Step 5: Once signed, the notary public shall notarize your last will and testament. In case you don’t want to go through the process of making a DIY last will and testament, you can go ahead and hire the services of a lawyer or the notary public so the latter can assist you in drafting your will. 2. Holographic Will Writing a holographic will is pretty straightforward. You just need to have a pen and paper and write your will in your handwriting. No other form aside from this is required. When writing a holographic will, please take note of the following: The contents must be made entirely in your handwriting; hence, if the contents are typewritten or printed using the computer, the will is invalid.It must be signed by hand. It must also be dated by hand. A will with no date is not valid.If there are dispositions/contents below your signature, it must be signed and dated as well; otherwise, the disposition is not valid.If there are any insertion, cancellation, erasure, you must authenticate the same by the full signature (not just initials) Here’s a sample of what a holographic will would look like to give you an idea. What Is the Probate of the Will? As discussed above, the heirs will not automatically get the estate of the deceased. A judicial proceeding is required for the last will and testament to be implemented. The proceeding is called probate2. Probate of the will can be made by the testator himself while he or she is still alive or by the executor, heirs, or any interested person after the testator’s death. The probate of the will is done simply to validate its execution, i.e, whether the will is authentic and duly executed by the testator and was made in accordance with the law and the required formalities. Given this is a court proceeding, it is best for the interested person to hire the services of a lawyer to help draft the petition to be filed in court. Tips and Warnings Make sure that in writing a will, you don’t exclude any of the compulsory heirs. If you exclude a compulsory heir, you should state the specific reason why you are disinheriting him or her. Disinheritance should be based on specific causes provided under the law3. In writing a notarial will, make sure that the attestation clause and the acknowledgment must specifically state the number of pages of the will. In one case4, the Supreme Court disallowed a will for failure to specify the number of pages in the attestation clause and a wrong number of pages in the acknowledgment. This is important to avoid insertion or omission of pages in the will.Make sure you have at least three (3) witnesses to your will. In one case5, the will was disallowed as it only had two witnesses. The notary public who notarized the will cannot be a 3rd witness. Frequently Asked Questions 1. Is a last will and testament legally binding? Yes, a last will and testament is legally binding or valid and enforceable if the same was executed following the formalities required by law. Hence, if a will is defective, i.e., not notarized for a notarial will, then the court may disallow it in the probate proceedings. 2. Can a last will and testament be contested? Yes, any interested person can contest the will. The court will disallow a will if any of the following is present6: The formalities required by law have not been complied with;If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;If it was executed through force, or under duress, or the influence of fear or threats; If it was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person; If the signature of the testator was procured by fraud; andIf the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. 3. Can you write your own will and have it notarized? If you are writing a holographic will, notarization is not needed. If you are writing a notarial will, yes you can write or make your own will following the procedure discussed in this article and have a notary public notarized the same. 4. How long is a last will and testament valid? A last will and testament is valid as long as it is not revoked by the testator at any time before his death. A will is revoked7 in any of the following cases: By implication of lawBy some will or codicil or other writing executed as provided in case of wills; orBy burning, tearing, canceling, or obliterating the will with the intention to revoke it 5. How much does it cost to make a last will and testament in the Philippines? If you are making a holographic will, there is no cost as you only need a pen and paper to make one. If you are making a notarial will, the cost varies depending on the notary public who will notarize the document. It ranges from Php 5,000 to Php 10,000 or more depending on the complexities of the will and your testamentary dispositions. References