Planning before and beyond the grave
(Second in a series)
There are two kinds of will, a holographic will and a notarial will.
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.
In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.
In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
A notarial will, on the other hand, must be (a) signed by the testator; (b) signed by at least three (3) witnesses; (c) both the testator and the witnesses shall sign on every page; (d) must contain an attestation clause signed by the witnesses; and (e) notarized.
Attestation clause
The attestation clause must state: (a) the number of pages used upon which the will is written; (b) 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 (c) that the latter witnessed and signed.
The testator’s power to control the disposition of his estate is not without limitation.
The testator cannot (a) impair the legitime of a compulsory heir;(2) extend to properties not forming part of the estate (e.g., reservable property); (3) impose illegal or impossible conditions; and (4) make a provision for disqualified persons.
A testator cannot likewise impose the following conditions in his will as they are considered void: impossible or illegal conditions. The condition is deemed not imposed, even if the testator provides otherwise.
The impossibility must exist at the time of the execution of the will: (1) condition is void, but disposition is valid; (2) a condition not to contract a first marriage. The condition is void, but the disposition is valid; (3) a condition not to contract a subsequent marriage. The condition is void, unless imposed by the deceased spouse, or by the latter’s ascendants or descendants, but the disposition is valid; and (4) disposicion captatoria.
This is a testamentary disposition made upon the condition that the heir shall make some provision in his will in favor of the testator, or in favor of any other person. It renders both the disposition and the condition void.
Legitime
Legitime is the part of the estate which testator cannot dispose because the law reserved it for compulsory heirs.
It is the minimum share of a compulsory heir in the estate of the testator. The testator may dispose his entire estate, provided compulsory heirs receive the legitime as a minimum.
In intestate succession, the legitime of an intestate heir who is also a compulsory heir is already integrated in the statutory share of such intestate heir; thus, the preservation of the legitime is not a concern.
The legitime, in other words, is reserved by law for compulsory heirs and may not be reduced, except the legitime of illegitimate children in case the estate is not sufficient to pay their legitime in full. A compulsory heir cannot be deprived of the legitime except through a valid disinheritance (Art. 915).
No burden, encumbrance, condition, or substitution may be attached to the legitime.
A compulsory heir to whom the testator left less than the legitime is entitled to completion, but not to the total annulment of the institution of heirs. Testamentary dispositions that impair the legitime shall be reduced insofar as they may be inofficious.
What if the compulsory heir predeceased the testator? In such cases, the right of representation is exercisable with respect to the legitime, but only in the descending line; never in the ascending line. The spouse cannot be represented.
If a marriage is annulled, or declared void, or if a foreign divorce decree is recognized in the Philippines, there is no surviving spouse because the marriage is terminated.
Meanwhile, a decree of legal separation does not terminate the marriage, but the offending spouse is disqualified to inherit from the innocent spouse by intestate succession, and all provisions made in favor of the offending spouse by the innocent spouse is revoked by operation of law.
Offending spouse cannot inherit from the innocent spouse by intestacy; therefore he is not entitled to the legitime; he may inherit from the innocent spouse only by testamentary succession.
Hereditary estate
What will be the deceased’s hereditary estate? A simplistic determination of the hereditary estate is as follows: assets + liabilities not extinguished by death + the accruals since the opening of succession = the hereditary estate.
The following properties, however, do not form part of the deceased’s estate. First, the property passes to the second heir upon the death of the first heir. It does not form part of the first heir’s estate. Second are properties subject to reserva truncal, and those subject to aleatory contract.
In determining the legitime of the of a compulsory heir, the following formula may serve as a guide: value of property left at the time of death of testator – debts and charges = net hereditary estate + collationable donations = Theoretical hereditary estate. (To be continued)
Sources:
The laws on donation and succession, Civil Code of the Philippines: Jurisprudence: Heirs of Reyes vs. Calumpang, G.R. No. 138463, October 30, 2006; Ramirez vs. Baltazar, No. L-25049, 30 August 1968, 24 SCRA 918.), Puno vs. Puno Enterprises, Inc., G.R. No. 177066, 11 September 2009, 599 SCRA 585; Vda. de Gil vs. vda. de Murciano, No. L-3362, March 1951, 88 Phil 260, 269; Salvador vs. Sta. Maria, No. L- 25952, 30 June 1967, 20 SCRA 603; Dizon-Rivera vs. Dizon, No. L-24561, 30 June 1970, 33 SCRA 554; Heirs of Sandejas vs. Lina, G.R. No. 141634, 5 February 2001, 351 SCRA 183; Blas vs. Santos, No. L-14070, 29 March 1861, 1 SCRA 899; Uson vs. del Rosario, No. L-4693, 29 January 1953, 92 Phil 530.
Special thanks to Professor Avelino V. Sebastian for his notes and book entitled Wills and Succession.
On line articles: Manulife. https://www.manulife.com.ph/about-us/blog/5-reasons-why-estate-planning-is-important.html
The Philippine Estate Planning Primer. Lawyers in the Philippines. https://lawyerphilippines.org/the-philippine-estate-planning primer-everything-and-the-kitchen-sink/
The author is Dean, College of Law at Lyceum of the Philippines University; Chairman of Philippine Association of Law Schools; and Founder of Mawis Law Office
