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By Kelvin Lee
Question of Law
Wednesday, August 20, 2014
HOW is one to dispose of his property when he dies? This can be done through the Will. Through a Will, the testator (the one making the will) is able to control, to a certain extent, the disposition of his property when he passes on.
The Will is defined by law “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.” (Article 783, Civil Code)
The Supreme Court further explains that a will has been defined as “a personal, solemn act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death.” (Vitug v. Court of Appeals, 183 SCRA 755).
Now, the making of a will is a strictly personal act. (Article 784, Civil Code). Meaning, only the testator is allowed to make the Will in order to dispose of his assets. In short, the son cannot make a Will for his father and dispose of the father’s assets upon his death, as the law provides that a Will is a purely personal act.
There are two kinds of Wills. The Notarial Will and the Holographic Will. The general rule is that “every will must be in writing and executed in a language or dialect known to the testator.” (Article 804, Civil Code).
The Ordinary Will, also known as the Notarial Will, is the typical Will used by lawyers and laypeople who go to lawyers.
The Notarial Will is so named because it must be executed before a Notary Public. Furthermore, there are specific requirements under Article 805 of the Civil Code, such as: (i) it must be subscribed by the testator and by his express direction, in the presence of witnesses; (ii) it must be attested and subscribed by at least three credible witnesses in the presence of the testator and of one another; (iii) the testator must sign every page except the last, on the left margin in the presence of the witnesses; (iv) the witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another; (v) all pages must be numbered correlatively in letters on the upper part of each page; (vi) there must be an attestation clause stating the number of pages of the will, the fact that the testator or his agent signed the will and every page thereof, and in the presence of witnesses, and the fact that the witnesses witnessed and signed every page thereof in the presence of the testator and of one another. (See Article 806, Civil Code and Jottings and Jurisprudence, Balance, p. 54 (Revised Edition)).
This is obviously, and clearly, very complicated. As such, some people have preferred using the Holographic Will instead.
The Holographic Will, in the words of noted Professor Balance (an expert in Civil Law) is the soul of simplicity. It must be “entirely written, dated and signed by the hand of the testator himself.” (Article 810, Civil Code).
The advantage of the Holographic Will is its simplicity. In fact, a lay person can make it even without the help of a lawyer. The problem however, is that since the Holographic Will is very simple, needs no witnesses, and is merely handwritten, it can be subject to forgery or even be made by force or duress.
Sometimes, the best option is still the one which requires you to go to a lawyer. Even if it seems a bit complicated, at least one can be assured of the authenticity of a Will.
The opinions expressed herein are solely of Atty. Lee. This column does not constitute legal advice nor does it create a lawyer-client relationship with any party. You can reach Kelvin at email@example.com
Published in the Sun.Star Davao newspaper on August 21, 2014.