Time to make a will

This season of Undas, as we visit the graves of those who passed before us, we cannot help but be reminded of our own mortality and the inevitability of our own death.

Many people shy away from talk of death and its related matters. However, it is important to acknowledge that death is not a matter of “if,” but of “when.” And since death is sure to come for each one of us, it is prudent to make sure that we have our last will and testament in order.

Wills allow us to ensure that our wishes are carried out after our death. Some of the usual things people include in their wills are funeral and burial wishes, such as whether they want to be cremated or not, solemnities they to be followed for the wake and funeral, and where they want to be buried.

A will also allows us to dictate the distribution of our properties to our loved ones. We can indicate who gets which property as well as provisions for trusteeship, allowances, and financial arrangements to ensure the care and support of our loved ones.

One of the most important things a will can provide for is the appointment of the chosen guardian for minor children who are left behind by the deceased. This way, they can ensure that the children will be cared for by people they trust.

The law defines a will to be an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of is estate, to take effect after his death. The making of a will is a personal act that cannot be left to the discretion of a third person. (Art. 783 & 784, Civil Code)

Testamentary capacity

The person who makes a will, or the testator, must be of legal age, sound mind at the time of execution, and is not prohibited by law to make a will.

If the testator is deaf or deaf-mute, the he must personally read the will, if able to do so. Otherwise, the testator shall choose two persons who will read and communicate the will to him.

On the other hand if blind, the will shall be read to them twice, by one of the subscribing witnesses and the notary public before whom the will is acknowledged. This requirement applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their will. For example, a testator who was not totally blind as he could see fingers at three feet but could no longer read any document was considered blind by the Supreme Court. (In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado vs. Rino, et al., GR 74695, Sept 14, 1993)

The law favors the making of a will, and it presumes that every person making one is of sound mind.

To be of sound mind, the testator need not be in full possession of all his reasoning faculties or that its mind is wholly unbroken, unimpaired, or shattered by disease, injury or other cause. Soundness of mind is satisfied if the testator, at the time of making of the will, knew a.) nature of the estate to be disposed of, i.e. they know what their properties are, b) the proper objects of the testator’s bounty, i.e. they know who the people they want to give their property to, and c) the character of the testamentary act, i.e. they know what a will is and its purpose. (Art. 799 & 800, Civil Code)

Being forgetful or very old does not affect soundness of mind. It has even been declared by the court that the testator’s “sexual exhibitionism and unhygienic, crude and impolite ways” did not mean that he is of an unsound mind. (Ortega v. Valmonte, GR 157451, December 16, 2005)

There are two kinds of wills. The first is the Notarial Will and the second is the Holographic Will.

The Notarial Will

A notarial will, as the name suggests, is a document that must be acknowledged before a notary public. This kind of will has more formal and other requirements which are expected to be complied with otherwise the courts have not hesitated to declare as void non-compliant notarial wills.

Notarial wills must comply with the following:

1. The will must be in writing and executed in a language known to the testator;
2. The will must be subscribed at the end by the testator himself, or
3. By the testator’s name written by some other person in his presence upon his express direction;
4. The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;
5. The testator and its witnesses, must sign all pages, except the last, on the left margin. The signing must be done in each other’s presence;
6. All the pages shall be numbered correlatively in letters placed on the upper part of each page;
7. The will must have a signed attestation clause stating:

a. the number of pages used upon which the will is written;
b. the fact that the testator signed the will and its every page, or
c. If the testator has caused some other person to write his name, under his direction, in the presence of               instrumental witnesses;
d. that the witnesses signed the will and all its pages 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.

The three “credible witnesses” in a notarial will must be (a) persons of sound mind, (b) 18 years old and above, (c) not blind, deaf, or dumb, able to read and write. Persons who are not based in the Philippines and those convicted of falsification of a document, perjury or false testimony are disqualified from being witnesses to a will. (Art. 820 & 821, Civil Code)

The notary public itself before whom the will was acknowledged cannot be considered as the third witness since he cannot acknowledge before himself his having signed the will. (Cruz v. Lugay, et al., GR L-32213, Nov 26, 1973)

It is significant that the law provides that the notary public, unlike other documents it notarizes, shall not be required to retain a copy of the will or file a copy with the office of the clerk of court. (Art. 804 & onwards of the Civil Code)

The Holographic Will

A Holographic will is a written document which is 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. This kind of will is usually made by the testator without the assistance of a lawyer.

While there is no need for a witness in the creation of the holographic will, in the probate of the holographic will, at least one witness who knows the handwriting and signature of the testator must testify and identify the handwriting and signature of the testator in the will. Otherwise, an expert witness must be presented.

In case of any insertion, cancellation, erasure, or alteration in a holographic will, the testator must authenticate the same by his full signature. (Articles 810 to 814, Civil Code)

It may be tempting for husbands and wives to prepare just one will but this is not allowed as the law provides that two persons cannot make a joint will or in the same instrument. (Art. 818, Civil Code)

Finally, all wills, whether notarial or holographic, to pass property must be probated by a court. This is the process whereby a will is submitted to the court for approval.

In probate proceedings, the court’s area of inquiry is limited to an examination of the extrinsic validity of the will. The probate court looks into the testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law. Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by the Civil Code. (Racca v. Echague, GR No. 237133, 20 January 2021)

Regardless of whether one chooses a notarial will or holographic will, it would be good advice to start writing our will at the soonest time.

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)