Preparing for one’s death is a very sensitive topic. It is a topic nobody wants to talk about. However, we always worry about the loved ones who we will leave behind once the inevitable happens.
One way of continuing to look after your loved ones is to prepare a Last Will and Testament in order to put your final wishes for them in order.
If you have real and personal properties, they will all form part of the inheritance of your heir. They will acquire the right to your properties by way of succession, which is a mode of acquisition by virtue of which 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 (Article 774, New Civil Code).
Succession may be:
1) Testamentary, when the decedent died with a will;
2) legal or intestate, when the decedent died without a will, or a void will or inoperative will;
3) Mixed or partly by will and intestate.
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 his estate, to take effect after his death (Article 783, New Civil Code)
To prepare a Will, one must possess the following testamentary capacity:
1.Must be eighteen years old and above
2.Must be of sound mind at the time of its execution. If became insane after the will is made, the will is still valid.
We have two kinds of Wills which is allowed under Philippine law. The Notarial Will and the Holographic Will.
We will first discuss the Notarial Will. From the name itself, this type of Will must be notarized and acknowledged by a Notary Public.
The following are the formal requirements of a Notarial Will which must be complied with otherwise, the Notarial Will is invalid:
- Must be in writing
- Executed in a language or dialect known to the testator
- Subscribed or signed at the end thereof by the testator, or by the testator’s name written by
another person in his presence and by his express direction. - Attested and subscribed by three or more credible witnesses in the presence of the testator and of each other.
- Each and every page, except the last, must be signed on the left margin by the testator or by the person requested by him to write his name, and by the instrumental witnesses, in the presence of each other.
- Each and every page must be numbers correlatively in letters place on the upper part of each page.
- Contains an attestation clause signed by the witnesses. The attestation shall state the number of pages of h will, 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 witnesses signed the will and all the pages thereof in the presence of the testator and of one another.
- Must be acknowledged before a notary public by the testator and the witnesses.
It is ideal for the notary public to be present at the time of the execution of the Notarial Will. However, his presence at the execution of the Notarial Will is not really necessary. What is important is that the notary public is present at the time of the Acknowledgment of the Notarial Will.
Moreover, the execution of the Notarial Will must be done and completed in one occasion, but the Acknowledgement may be done on a different day as long as the testator remains capacitated at the time of the Acknowledgement of his/her Notarial Will.
A Holographic Will, on the other hand, is one which is entirely written, signed and dated by the testator. It is a handwritten will by the testator, and it is subject to no other form. It is also not required to be witnessed by anyone.
Executing a Will, either a Notarial Will or Holographic Will is not enough. The Will should also go through a Probate. Please take note that no Will shall pass either real or personal estate unless it is proved and allowed in the proper court (Section 1, Rule 75 of the Rules of Civil Procedure). This will be done by filing a Petition for Probate of Will in the court having jurisdiction, which could be filed by the testator him/herself during his/her lifetime, or by any executor, devisee, or legatee named in the Will, or any other person interested in the estate, may, at any time after the death of the testator file the said Petition.
