Making a will ensures that conflict and controversy regarding the deceased person's estate are prevented. A will under Article 783 refers to " 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."

Article 784 also states that the making of a will must be a personal act. The Civil Codes also specifies that a testator can execute can execute two kinds of wills. These are the attested and holographic will.

The ordinary or attested will is governed by Articles 804 to 809:

Art. 804.  Every will must be in writing and executed in a language or dialect known to the testator.

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. 

Art. 807.  If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art. 808.  If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. 

Art. 809.  In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.

The holographic will is governed by 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.”

Succession as defined under Art. 774 of the New Civil Code is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. 

There are two kinds of successors:

Compulsory heirs refer to the legitime reserved by law, and who succeed whether the testator likes it or not. 

Voluntary heirs refer to the person other than the compulsory heirs. 

Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

Art. 778. Succession may be:

(1) Testamentary;

(2) Legal or intestate; or

(3) Mixed. (n)

Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n)

Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)

Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n) 

TESTAMENTARY SUCCESSION

Art. 783. 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. (667a)

Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)

Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a)

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n)

Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n)

Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a)

Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n)

Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n)

Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n)

Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n) 

 

 

 

The deed of donation will only be perfected if it meets the requisites. One of which is that the donor must have the capacity to make the donation. It is also imperative that the donee is entitled to be supported by the donor. 

EFFECT OF DONATIONS AND LIMITATIONS THEREON

Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected. (634a)

Art. 751. Donations cannot comprehend future property.

By future property is understood anything which the donor cannot dispose of at the time of the donation. (635)

Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will.

The donation shall be inofficious in all that it may exceed this limitation. (636)

Art. 753. When a donation is made to several persons jointly, it is understood to be in equal shares, and there shall be no right of accretion among them, unless the donor has otherwise provided.

The preceding paragraph shall not be applicable to donations made to the husband and wife jointly, between whom there shall be a right of accretion, if the contrary has not been provided by the donor. (637)

Art. 754. The donee is subrogated to all the rights and actions which in case of eviction would pertain to the donor. The latter, on the other hand, is not obliged to warrant the things donated, save when the donation is onerous, in which case the donor shall be liable for eviction to the concurrence of the burden.

The donor shall also be liable for eviction or hidden defects in case of bad faith on his part. (638a)

Art. 755. The right to dispose of some of the things donated, or of some amount which shall be a charge thereon, may be reserved by the donor; but if he should die without having made use of this right, the property or amount reserved shall belong to the donee. (639)

Art. 756. The ownership of property may also be donated to one person and the usufruct to another or others, provided all the donees are living at the time of the donation. (640a)

Art. 757. Reversion may be validly established in favor of only the donor for any case and circumstances, but not in favor of other persons unless they are all living at the time of the donation.

Any reversion stipulated by the donor in favor of a third person in violation of what is provided in the preceding paragraph shall be void, but shall not nullify the donation. (614a)

Art. 758. When the donation imposes upon the donee the obligation to pay the debts of the donor, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for the debts exceeding the value of the property donated, unless a contrary intention clearly appears. (642a)

Art. 759. There being no stipulation regarding the payment of debts, the donee shall be responsible therefor only when the donation has been made in fraud of creditors.

The donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation. (643) 

Property ownership and rights can be acquired by intestate succession, by donation, by law, by estate and even by tradition. If ownership and other real rights have been acquired through occupation, intellectual creation and prescription, it means that such an ownership is original. On the other hand, if ownership has been acquired by law, by donation, by intestate succession and by other consequences such as tradition, the ownership will be considered derivative. 

Original ownership means that the ownership has been created for the first time of an individual who does not have predecessor with respect to the title. Derivative ownership refers to the ownership where the property is transferred from one person to another. 

SECTION 1. – General Provisions

Art. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a)

SUBSECTION 1. – Relationship

Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)

Art. 964. A series of degrees forms a line, which may be either direct or collateral.

A direct line is that constituted by the series of degrees among ascendants and descendants.

A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a)

SUBSECTION 2. – Right of Representation

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a)

SECTION 2. – Order of Intestate Succession

SUBSECTION 1. – Descending Direct Line

Art. 978. Succession pertains, in the first place, to the descending direct line. (930)

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a)

SUBSECTION 2. – Ascending Direct Line

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)

Art. 986. The father and mother, if living, shall inherit in equal shares.

Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)

SUBSECTION 3. – Illegitimate Children

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a)

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a)

SUBSECTION 4. – Surviving Spouse

Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a)

SUBSECTION 5. – Collateral Relatives

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

SUBSECTION 6. – The State

Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a)

Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a)

If you have already made your last will and testament and decided to make some changes, do you need to follow the same requirements as the old will? In most cases, creating a new will can still be considered invalid if it does not meet the conditions under Article 830. Creating a new will does not automatically revoke the old will.

The old will can be still be considered operative if there is no valid revocation of a will by a subsequent will. This means that the subsequent will should comply with the formal requirements in terms of executing it. The maker of the will must have testamentary capacity and the subsequent will should contain express revocatory clause which shows incompatibility with the old will.

You must clearly express your intention to replace your old will. It should also specify your intention to revoke it. The subsequent will must also be probated by Court as this is still part of the requirement.

SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

Art. 830. No will shall be revoked except in the following cases:

    (1) By implication of law; or

    (2) By some will, codicil, or other writing executed as provided in case of wills; or

    (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n)

Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

It cannot be denied that the settlement of a deceased person's estate can lead to bitter litigations if the relatives cannot see eye to eye. This is why preparing a last will and testament is a good option to prevent conflicts. A last will and testament refers to an act whereby an individual is permitted, following the legal procedures, to control a certain degree the disposition of his/her estate. The will serves as a document whereby the testator disposes of his/her estate or property, which will take effect upon his/her death. The testator refers to the deceased person who created the will. A legatee refers to the person whom the testator gives the personal property through a will while the devisee is the person who is given real property in a will. The person who is entrusted to implement the provisions is referred to as the executor.

Inheritance versus Will

A will differs from inheritance as the latter refers to "all the property, rights and obligations of a person who are not extinguished by his death" according to Civil Code, Art. 776. The will determines the disposition of the inheritance.

A document may be entitled a last will and testament but when it provides that all properties need to be transferred during the testator's lifetime, it is not considered a will because a will takes effect upon the testator's death. A disposition that takes effect before his/her death is referred to as a donation and this should be governed by the formalities of and legal provisions on donations.

Two kinds of wills: Holographic and Notarial

A holographic will refers to a writen document which is dated and signed by the hand of the testator himself while a notarial will is governed by the provisions under Article 805 and 806, Civil Code.

"    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."

People enter into an agreement for various reasons such as buying, selling or rendering services. Contracts contain relevant agreements which both parties should perform. However, there are instances when one of the contracting parties ends up dealing with legal disputes because of one essential element that has been taken for granted: notarization.  Does notarization bear any weight on the contract? While merely signing a contract binds a person into an agreement, a contract that bears the signature of contracting parties may not suffice in spite the presence of consent elements. 

The importance of notarization

Notarization has a legal impact on the contract as it converts a private document to a public instrument. Agreements on the contract are enforceable once the document is notarized because it is a strong proof of the document’s authenticity. However, basic requirements must also be observed in notarizing documents. The document is also rendered admissible in court as tangible evidence once it is notarized. Notarization also prevents fraud among legal documents and contracts. The documents that often require notarization are Power of Attorney, medical documents, sworn statements, affidavits, deeds, wills and trusts.

It is stated under Section 1 of Public Act No. 2103, known as the Notarial Law that, ““An instrument or document shall be considered authentic if the acknowledgment is made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.”

The process

1.    The unsigned document must be brought to the notary public. It is important to note that the document must not be signed in advance as the notary public will not entertain signed documents without their presence. Proper identification must be secured to ensure that notary public can verify your identity.  Proofs of identity include TIN, NBI Clearance and SSS ID.

2.    Upon verifying your identity, the notary public will also check your documents. There are instances when notary publics prepare document for you to sign. This step is usually required in the case of affidavits.

3.    Once identification and document are clear, you will be asked to sign the document. You will also be observed if you are signing under duress or if another person is forcing you to sign the document against your will.

4.    You should also have one credible witness who is personally known to either the individual signing the document or the notary public.

5.    The transaction will be recorded on the notary’s journal. The record will show the date, place and other essential details of the transaction.

6.    If the requirements and process have been fulfilled, the notary will stamp the document with an official public seal or stamp to prove that your document is notarized. The payment for notarization will vary from location to location.

There is no substitute for legal advice from an attorney especially when it comes to preparing a will. In fact, a will must not be taken lightly as it is a serious matter. Attempting to write a will on your own is going to be risky and may even result in committing costly mistakes. While you might be vacillating on whether to get an attorney to complete your will or do it yourself, these following reasons might just enlighten you on the importance of an attorney: 

Specific Terms Are Used To Avoid Confusion

Vague terms can wreak havoc on completing your will and you might run the risk of being misinterpreted. The attorney uses a standard language for everyone to understand the content of your will. With the standard language, confusions are prevented and the message is conveyed to your beneficiaries and will executors. 

Error-Free

Homemade wills are less likely to be free of errors because it does not undergo the same scrutiny and examination that it gets when it is done by attorneys. Let’s face it, there are some technicalities involved in completing a will and attorneys are detail-oriented. They know the process of preparing a will, but if you are going to make your own will without seeking help from professionals, you might commit errors that are often difficult to undo. Some of the major errors that you may commit include forgetting to keep your will updated, forgetting to include your sign in the will, adding amendments and many others. 

The Will Is Based On Solid Facts 

Attorneys have undergone extensive training to familiarize themselves with the law’s intricacy. Imagine the time and effort they invested to acquire their title. If you are going to write your own will based on assumptions, there might be some areas that remain unclear to you. There will be questions lingering in your mind and they will remain unanswered unless you decide to get help. Contingencies are covered by an attorney that specializes in will preparation. There will be no confusions and your questions are answered point blank. 

Familiarity With Inheritance Tax and Law

Inheritance law is essential when preparing a will. Since it is governed by Civil Code, everything must be accurate and concise. An attorney can provide the right solutions to various inheritance issues that DIY will preparation may have possibly missed. 

Essentials For Preparing A Will

• It must be properly executed.

The will should include a date and place of signing. There should be witnesses in your presence before signing could take place. 

• The testator must be of legal age.

A testator must be at least eighteen years of age to be considered qualified for preparing a will. 

• The testator must have a sound mind.

It is also important that you are fully aware you are making a will. You should know the names of beneficiaries or descendants. 

• The will must be properly signed.

An unsigned will is considered invalid. With that being said, it is required that you voluntarily sign your will. Alternative provisions will be made if there are some unlikely circumstances that deterred a testator to sign the will such as illness or illiteracy.  

• There must be a clear intention to transfer the property. 

A statement with your intention to transfer the property to specific persons must also be prepared.