by Obiter07
Just recently, multi-billionaire New Yorker Leona Helmsley willed $12M to her dog. We may not have the billions to leave behind but we may have a thought or two as to where or to whom certain of our possessions will go and show our appreciation as Ms. Helmsley did.
A will is where one can be “permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death (ARTICLE 783, New Civil Code).” It is with these formalities that it is almost impossible to dispense with the services of a lawyer.
Every will has to be in writing and should be “executed in a language or dialect known to the testator (ARTICLE 804).” The testator means you if you are the one who wants to make a will provided you are at least 18 years old (ARTICLE 797) and of sound mind at the time of its execution (ARTICLE 798). So it’s ok to lose your marbles later.
“The making of a will is a strictly personal act” (ARTICLE 784). And so the duration or efficacy of the designation of heirs, devisees of legatees (these are the recipients of the testator’s intentions), or the determination of the portion which they are to take, cannot be left to another’s discretion (ARTICLE 785). As there is much respect given to the testator’s intentions, in the event of doubt as regards any disposition, the interpretation shall be made in favor of that which makes the disposition operative (ARTICLE 788).
Being a strictly personal act, persons cannot jointly make a will (ARTICLE 817). Nor can there be a quid pro quo testamentary disposition where an heir is required to provide for the testator or any other person in his (the heir’s) own will (ARTICLE 875).
In the will you spell out how you want your property distributed. Note, however, that you can dispose only of what is called the “free portion” of your estate. You cannot dispose of the “legitime” or property reserved for your compulsory heirs (ARTICLES 841 and 886). This refers to property reserved by law for legitimate children and descendants, or it there are none, then the legitimate parents and descendants, the widow or widower, acknowledged natural and other illegitimate children.
The testator has to subscribe or sign the will himself or have some other person sign it for him. Apart from that, the tricky party is the attestation clause that has to be at the end of every will (ARTICLE 805). It won’t suffice just to have one or two witnesses. You need a group of at least 3 people plus a notary public to make a will. Why? Because a will needs at least 3 instrumental witnesses (ARTICLE 805) and has to be subscribed thereafter before a notary (ARTICLE 806). So much for keeping a will secret right?
And if any one of those witnesses turns out to be a beneficiary to the will, then you need an additional witness. Otherwise, the will insofar as this “interested” witness is concerned will be invalidated and he or she won’t receive anything (ARTICLE 823). What if you can’t come up with the required number? It can be supposed if at that point, if you can’t find three friends to call in, you don’t have that much to give away anyway or that you won’t be missed much. Just keep in mind that a chance at riches can make a friend out of a lot of people.
And apart from signing the will at the end, each and every page of the will must be signed on the left margin and all the pages should be numbered by means of letters (i.e. for page 5, it should read “page five” or “five”) placed in the upper part of each page.
The attestation clause must also contain specific facts, such as the number of pages of the will, and that the testator signed every page thereof and that the instrumental witnesses did the same as well.
To dispense with these formalities, there is the “do-it-yourself” will or the holographic will. “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. (678, 688a), (ARTICLE 810).” You just have to write everything down yourself.
Think you are done? Not really, because both kinds of wills have to be considered by the court in something called probate proceedings. This is a process where the court verifies whether the will is sufficient in form and substance. You can have a will go through this procedure while you are still alive or later when you are not (ARTICLE 838).
As a testator, you can make your heirs earn what you intend to give them since you are allowed to impose conditions before they can benefit from your will (ARTICLES 876, 877), provided the conditions are not impossible and not contrary to law or good customs (ARTICLE 873). One such possible condition is to prohibit a spouse from marrying again (or at least get nothing from the will when he or she does)! It reads: “An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants. xxx (ARTICLE 874).”
They say you can’t take it with you but you can make sure no one else gets to enjoy it. To get something from a “will,” you may very well have to put up with a “won’t” or two. This could be things like, “Before you ever get a cent from me, you won’t ever get married” or “you won’t drop out of school.” This just goes to show that where there’s a will, there may not necessarily be a “way” to get around it.
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