Making a Last Will and Testament

    The making of a will can never be over-emphasized. It prevents conflict and controversy regarding the remaining estate of a deceased person and fully addresses certain issues with regard to disposition and handling of the same. 

   What is a will anyway? Under Article 783 of the Civil Code, 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. Further, under Article 784, the making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

    Under the Civil Code, there are two kinds of wills which a testator may execute. The first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Civil Code, namely:

Art. 804.  Every will must be in writing and executed in a language or dialect known to the testator.

Art. 805.  Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.  The attestation shall state the number of pages used upon which the will is written, and 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 latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. 

Art. 806.  Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. 

Art. 807.  If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art. 808.  If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. 

Art. 809.  In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.

     In a case, the Supreme Court succintly discussed the foregoing provisions, it held that:

“In addition to the requirements under Article 805, the ordinary will must be acknowledged before a notary public by the testator and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged (Art. 808, Civil Code).” 

     The other kind of will is the holographic will, under Article 810 of the New Civil Code:

“A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.”

    This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator (Art. 804, Civil Code).

     However, before a person may execute a will, he or she must possess the following: 

a. That the testator must must be at least eighteen years of age, and;
b. That he must be of sound mind.(Article 797 and 798, New Civil Code)

     To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (Article 799, New Civil Code)