Know your law: Your last will and testament

Posted at 11/04/2008 12:57 PM | Updated as of 11/22/2008 9:34 AM
Joey Tenafrancia, senior partner of CVC law firm.

Death, as they say, comes like a thief in the night. That’s why most people choose to prepare their last will and testament to ensure that their properties are disposed of according to their wishes when they die.

Joey Tenafrancia, senior partner of the CVC law office, said that a will is a legal document which is a limited way for a person to control the disposition of his estate to the people he wants to share it with upon his death.

“A will is a legal document which is required to be in writing in a language or dialect known to the person who makes it,” he said Tuesday on “Mornings at ANC.”

The person who creates the will is called a testator, while recipients are called heirs. Strictly speaking, one only becomes an heir upon the death of the testator.

Though other countries accept oral wills, Tenafrancia said that only written wills are accepted in the Philippines. Under the law, any person 18 yearsold  and above, and with a sound mind, is qualified to prepare a will without the aid of a lawyer.

Two kinds of wills

The only major difference between the two kinds of wills is the form. Tenafrancia said that both notarial and holographic wills may actually contain the same thing.

A notarial will requires at least three credible witnesses, and it should be acknowledged before a notary public in order to ensure that it was made by the testator. Tenafrancia recommended the assistance of a lawyer should one choose to make a notarial will, given its many legal techicalities.

“It’s full of formalities required by law, and if the formalities are not complied with, it would mean that the will may not be allowed a probate, or it may not be considered valid. So it would be good if a lawyer advise you,” he said.

A holographic will, on the other hand, is entirely written, dated, and signed by the testator. This imposes less demands when it comes to legal formalities on the part of the person creating the will.

“It’s simpler, it’s handwritten,” Tenafrancia said.

Compulsory heirs

Tenafrancia said that although the testator can choose his heirs, the will he created cannot prejudice the legitime, or forced share, of his compulsory heirs.

The law has reserved portions of the testator’s estate to compulsory heirs, which are: legitimate children or descendants, legitimate parents or ascendants, surviving spouse, and illegitimate children.

In other words, the testator cannot disinherit leave out the compulsory heirs without sufficient legal cause. Should they be disinherited, however, it must be stated in the will that the testator has created.

“The law provides for the grounds for disinheritance, and common grounds for disinheritance of the children or the spouse would be if the person is found guilty of attempting on the life of the testator, or if the person disinherited was accused by the testator of having committed a crime of which the penalty prescribes six years or more. For children if they have maltreated the testator by word or deed during their lifetime,” Tenafrancia said.

Making a will

In making a will, Tenafrancia stated that the testator can include any prerequisite for a inheritor’s acquisition of his wealth, provided that guidelines stated in the civil code should are followed.

“Our law in succession is based on the old Spanish civil code so it probably survived from that era. A testator can put in a tradition, for example, that the surviving spouse shall not marry again,” he said.

However, the testator cannot include as a requirement that the heir should first commit an illegal, immoral, or any act against the law in order to get his share of the estate.

Tenafrancia added that although the testator can pass on all that he owns to his inheritors, this does not include debts and obligations.

After the testator dies, a probate proceeding may be initiated in court to determine the validity of the will that the testator may have created.

If the will is ruled to be invalid, the inheritance will take place under the laws of intestacy as if a will was never made. In this process, Tenafrancia said that the law will decide how to dispose of the deceased person’s estate.

“Intestate succession happens when no will is made. It provides certain proportions to certain people. It’s a straightforward application of the provisions of the law.

When the will has been executed in accordance with law, then comes the settlement of claims. At this stage, all heirs will be notified so they can get their share of the testator’s property. Tenafrancia said that this stage, taxes and other expenses will be deducted from the testator’s property.

“A notarial will includes the legal cost, for the notary public, for the lawyer who will assist the testator, and in filing for the probate of a will, the rules of court provide for the estates where the property is not more than P100,000 then the filing fees would be P3,500. For P400,000 of total properties, it’s about P6,500,” he said.