Published 25 June 2018, The Daily Tribune
As disconcerting as the thought of death to most people is, is the thought of having to distribute property to one’s heirs.
While this may not be a problem to those who barely have anything, it is a daunting task to those with substantial assets. Of course, one can simply adopt the “I don’t care a whit” attitude and leave it to the heirs to sort out the estate after one’s death. However, people with substantial assets should in fact care considering that estate-related disputes have the tendency of being the most bitterly fought, sometimes even resulting in the breakup of families.
As a responsible individual, therefore, it is best to put things in order, before one dies. This ensures that one’s will (pun intended) or intention is implemented after death. If no last will and testament is executed, one’s assets will be distributed in accordance with the default percentages provided by law. This may not be the most fair or ideal allocation of assets from one’s point of view. Most often, there are favored heirs whom the testator (one making a will) would like to have a bigger share of the pie and only a will can ensure that.
Assuming one is already decided to execute a will, what must one do? Literally just get a pen and paper.
The first type of will under the Civil Code is what is called a holographic will. The only legal requirement for this kind of will is it must be entirely written, dated, and signed by the testator himself. It is subject to no other formal requirement, and may be made in or out of the Philippines, and need not be witnessed. (Article 810, Civil Code)
It’s that easy? It actually is. This type of will is especially recommended if the estate is not that substantial anyway, making the drafting of a more “formal” notarial will too tedious and impractical.
The second option is called a notarial will, which can be executed even by people who are either too ill or too old to even write. Under Article 805 of the CivilCode, a notarial will must be subscribed 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 3 or more credible witnesses in the presence of the testator and of one another. All the pages have to be signed, 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.
Furthermore, 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.
Finally, this type of will must be acknowledged before a notary public by the testator and the witnesses.
As one can gather from the very technical requirements of a notarial will, the same is nearly impossible to execute without the assistance of a lawyer. Any defect in the formal requisites may result in the will being invalidated. In fact, so careful are many lawyers in executing a will for their clients that it is usually treated as a major production. The ceremony–the execution of the will in the presence of witnesses and notary public–is usually filmed to demonstrate that all the necessary steps have been followed to the letter and, more importantly, to show that the testator was not under duress and was of sound and disposing mind.
Indeed, many disputes in connection with the approval by the courts of a last will and testament concern the voluntariness of the execution of the will. In the twilight of one’s years, one can easily be cajoled or coerced by an heir into including a provision in one’s will. A video, however, where the testator is even asked by the notary public questions regarding voluntariness and understanding of all the provisions of the will usually obviates that kind of an objection.
Which brings us to another advice we often give our clients. Because all wills, in order to be given effect, has to be “probated” in or approved by the court, it is best to initiate probate proceedings while the testator is still alive. Being the petitioner himself or herself who can attest to the voluntariness of the provisions in the will, the probate proceedings becomes a lot faster and difficult to oppose.
The memory of one’s love and affection may not be subject to distribution through one’s last will but one’s generosity with his/her estate is a good approximation.
For comments and questions, please send email to cabdo@divinalaw.com
