Testamentary disposition of estate

Published in Daily Tribune on September 16, 2021
by: Migmar Bernped S. Francisco

Article 783 of the Civil Code defines a will as “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.” Simply put, a will is a written document by which a person, called the testator, directs the distribution of his or her properties to his heirs upon his or her death. The transfer of a decedent’s properties via a will is called testamentary succession.

Article 796 provides that all persons not expressly prohibited by law can make a will. Thus, a testator must at least be 18 years of age and of sound mind. The law does not require that the testator possess all his reasoning faculties it being sufficient that he understood the nature the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act at the time he wrote the will. Subsequent incapacity does not invalidate a will validly executed.

The disposition of the properties through a will is not absolute. It only gives the testator a certain degree of control over the disposition of his properties. The law reserves a fixed portion of a testator’s estate for distribution among his compulsory heirs. This fixed portion is called the legitime of compulsory heirs. Anything beyond the legitime is called the disposable free portion of a testator’s estate which he or she is free to bequeath to other objects of his or her bounty.

In our jurisdiction, testamentary succession is effected either through a notarial or holographic will.

A notarial will, also called as an “ordinary will,” is one executed in accordance with numerous requirements under Articles 804 to 808 of the Civil Code.

A valid notarial will requires that it be signed at the end by the testator, attested by three or more witnesses in the presence of the testator and of one another, and that the testator and the witnesses shall all sign on each and every page of the will except the last and that all the pages be numbered correlatively in letters. In addition, the will must be acknowledged before a notary public by the testator and the witnesses.

There may be instances, however, when executing a notarial will is not practicable, such us when the required number of witnesses cannot be had or when a notary public is not readily available in the area, or when the testator simply just does not want to go through the rigid steps in executing a notarial will. In such cases, the execution of a holographic will may instead be resorted to as it accommodates less stringent requirements in order to be properly executed.

For the proper execution of a holographic will, Article 810 of the Civil Code only requires that it be entirely written, dated, and signed by the testator.

Whenever there are insertions, cancellations, erasures or any alterations in the holographic will, the same must be authenticated or countersigned by the testator.

Accordingly, in contrast to a notarial will, witnesses are not required for the execution of a holographic. It is only during the probate of a will, or the proceeding wherein its validity is to be established, that at least one witness is required.

Such witness must testify on the fact that he or she knows the handwriting of testator and that the will and the signature are in the handwriting of the testator. In cases of contested wills, however, there must at least three witnesses. Nevertheless, expert testimony may be resorted to in the absence of any witnesses.

All wills must be probated before or after the testator’s passing. Probate is the process by which a court renders conclusive the execution and validity of the will, of whether it has complied with the formal requisites laid down by law. Once a will has been allowed by the probate court, the properties of the decedent shall now be allocated among the heirs in accordance with the will.