Disposition of Property through a Last Will and Testament
As with most jurisdictions, Philippine law allows a person to distribute property to named individuals after his or her death. This disposition or transfer of property can be done through what is normally termed as a Last Will and Testament.
In the Philippines, dispositions by way of a Last Will and Testament is governed by the Civil Code of the Philippines. Article 783 of the Civil Code of the Philippines states:
“Art. 783. 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 this estate, to take effect after his death.”
While such provision of the Civil Code of the Philippines entails only a few words, it has given rise to many practical issues, debates and even decades of litigation leading cases which have found their way to the Supreme Court.
It is quite clear that through the Last Will and Testament, the person who prepared the document, referred to as the testator, controls the disposition of his property which remains after his death. It is through this Last Will and Testament that the testator can control how his estate will be divided, to whom his properties will be distributed, and what conditions, if any, can attach in relation to how his estate will be divided to his or her heirs.
When a Last Will and Testament Takes Effect
There is also no question about when this disposition will take place. Undoubtedly, the testator will prepare his or her Last Will and Testament, in contemplation of his or her passing. As a matter of law, it is only upon the passing of the testator that all matters, rights, and obligations which concern succession and inheritance, become relevant. This is because the rights to the succession are transmitted from the moment of death of the person whose estate is in consideration.
Thus, in the case of Angela M. Butte vs. Manuel Uy & Sons, Inc., G.R. No. L-15499, 28 February 1962, the Supreme Court echoed the penultimate provisions of the Civil Code on Succession:
“…By law, the rights to the succession of a deceased person are transmitted to his heirs from the moment of his death, and the right of succession includes all property rights and obligations that survive the decedent.
ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.
ART. 777. The rights to the succession are transmitted from the moment of the death of the decedent.
ART. 947. The legatee or devises acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs.
The principle of transmission as of the time of the predecessor’s death is basic in our Civil Code, and is supported by other related articles. Thus, the capacity of the heir is determined as of the time the decedent died (Art. 1034); the legitime is to be computed as of the same moment (Art. 908), and so is the inofficiousness of the donations inter vivos (Art. 771). Similarly, the legacies of credit and remission are valid only in the amount due and outstanding at the death of the testator (Art. 935), and the fruits accruing after that instant are deemed to pertain to the legatee (Art. 948). …”
Issues which arise from a Last Will and Testament
The key phrases to take note of in Article 783, and which have given rise to a plethora of cases which found their way to the Supreme Court, are the following:
- The Act of the Testator in Making a Last Will and Testament (“a will is an act whereby a person is permitted”)
- Compliance with the Legal Formalities for a Last Will and Testament (“the formalities prescribed by law”)
- Control and Disposition of the Estate (“to control to a certain degree the disposition of this estate”)
These succinct set of words have become the source of family issues in some cases, and in others, even bitter rivalry, or worse, animosity between family members resulting in decades of litigation. Part of the source of the problem here is due to the nature of the testamentary act, which as mentioned earlier, takes effect only after the death of the testator.
Indeed, the testator, wise in his or her years, prepares the Last Will and Testament, with all good meaning and intentions. The testator’s primary purpose is to divide the estate, based on his or her sense of fairness and equity, to the loved ones which he or she will leave behind. More often than not, this intention becomes manifest only after the testator’s passing and it is only at this time when issues regarding the Last Will and Testament become apparent. Why?
The heirs are left to discern the intentions of the testator, and read between the lines of the Last Will and Testament, trying to ascertain the will of the testator; the reason/s why property was left to a certain heir; why a legacy was bequeathed only to one heir and not the other, or why a lot was divided in a certain manner. This uncertainty often brews discord within the family, resulting into litigation that usually ends up with one group of the heirs as the victors, and the other feeling wronged and unfairly treated. To be sure, it is never the intention of the testator to leave his or her family in a state of conflict.
But it is not only the manner in which property is divided, which becomes problematic in succession cases.
Probate of a Last Will and Testament Required for its Validity
It must be noted that before a Last Will and Testament is enforced, Philippine law requires that the Last Will and Testament of the testator be probated. The probate of a Last Will and Testament is a legal requirement, which must be satisfied before the testamentary act is executed. The Philippine Supreme Court defines the Probate of a Last Will and Testament as follows:
“Probate is a special proceeding to establish the validity of a will. No will passes property unless it is probated by a court. Probate is mandatory. It is in rem. Hence, the court is also called a probate court. But a probate court also includes a court that presides over probate proceedings which can generally refer to the settlement of the estate of a deceased person with or without a will.”
It is during the Probate of a will where the court, sitting as a probate court, rules on the extrinsic validity of a Last Will and Testament. This involves a determination by the court of the following:
“The court’s area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix’s testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court – at this stage of the proceedings – is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.” (In The Matter Of The Petition For The Probate Of The Will Of Consuelo Santiago Garcia, G.R. No. 204793, 08 June 2020.)
It is only after the will has been probated and its extrinsic validity – meaning, its due execution thereof, the testator’s testamentary capacity, and the compliance with the requisites or solemnities by law prescribed – that the Last Will and Testament can be later executed by the court in the proper case for the settlement of the testator’s estate.
In fact, the probate court can disallow or declare a Last Will and Testament as invalid if any of the following grounds appear:
“Section 9. Grounds for disallowing will. — The will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.”
Since the Last Will and Testament of a person is normally dealt with only after he or she passes away, it is only after the person’s death that the issues concerning the validity of the document is discovered. In some cases, after the testator has passed, and the family seeks to have the Last Will and Testament executed, they discover during its probate certain issues regarding the testator’s act of instituting his Last Will and Testament which render the Last Will and Testament invalid. Still, in other cases, the families find out during probate that the Last Will and Testament did not include certain provisions, or did not comply with the form required by law, which results in the invalidity of the entirety of the will.
Probate of the Last Will and Testament during the Testator’s Lifetime is a Solution
Philippine law allows the probate of a person’s Last Will and Testament during his or her lifetime. This is expressly provided under Rule 76, Section 1 of the Rules of Special Proceedings, to wit:
“Section 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for the allowance of his will.” [Emphasis and underscoring supplied.]
Issues concerning the intention of the testator, the validity of the testamentary act, whether he or she was of sound and disposing mind when the Last Will and Testament was signed, and the genuineness of the Last Will and Testament and of the signatures therein, would be conclusively decided if the probate was done while the testator was still alive.
More importantly, doubting family members would be reassured of any uncertainties surrounding the testator’s wishes, as they themselves are made part of the probate proceeding initiated by no less than the testator himself or herself.
It must be emphasized that in any probate proceedings, whether filed after the death of the testator, or during his or her lifetime, the Rules of Special Proceedings have similar requirements and proofs to be presented before the probate court. In fact, the Petition which the testator will file for the probate of his or her own will, has the same form and is governed by the same rule as in a Petition which would have been filed after he or she passes away:
“Section 2. Contents of petition. — A petition for the allowance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.”
The only differences between a probate proceeding filed by the testator himself or herself vis-à-vis one instituted after the testator’s death can be summarized as follows:
a. No newspaper publication is required where the petition for probate was filed by the testator himself. On the other hand, in a petition for probate filed after the testator’s death, the court having jurisdiction, is required to publish the notice of hearing when the probate case is to be heard, which must be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province or city where the court has jurisdiction.
b. If the testator askes for the allowance of his own will, notice shall be sent only to his compulsory heirs, unlike in a petition for probate filed after the testator’s death, where all the heirs, devisees, legatees, and executors must be given notice of the time and place fixed for proving the will, sent via registered mail or personally.
Under such circumstances, where the Testator himself or herself will file the Petition for Probate, much of the guesswork to be made by the heirs would be removed. Moreover, if any doubt or question lingered in an heir’s mind as to why a certain disposition, gift or bequeath was made, it can be addressed by the testator himself. If any disagreement would arise from such a disposition, it will be something that can be dealt with and addressed directly by the testator. After all, the disposal of the estate is ultimately left to the will of the testator, whose wishes must be respected, especially considering that it involves his or her property.
About Nicolas and De Vega Law Offices
If you want to learn how to make a will or need help regarding estate planning, wills and succession, we can help you. Nicolas and De Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.