I am a septuagenarian, single and childless. My parents died when I was in my twenties. I have a legally adopted son, but he is already a family man so he cannot devote all of his time in taking care of me. To repay my niece who has been with me for so many years, sacrificed her own personal life so that she could take care of me and attend to my needs, I am planning to make a will giving her all my property when the time comes that I am no longer around. Can I do this despite the fact that I still have brothers and sisters who are still alive?
Dear Miss Mona,
The New Civil Code of the Philippines 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 (Article 783, New Civil Code of the Philippines).
It is clear that under the aforementioned law, a person is given the right to control to some extent the disposition of his property after his death. The same may be done through a will, which must conform with formalities prescribed by law.
If you desire to execute a last will and testament, you must not only comply with the formalities laid down by law. You must also ensure that the disposition of property as stipulated in the will must not impair the legitime of your compulsory heirs, among other things.
According to Article 886 of the said law, legitime is that part of the testator’s property, which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.
Also, the legitime of legitimate children under Article 888 of the New Civil Code of the Philippines is as follows:
“Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.”
It is clear based on the foregoing provisions that you cannot make a will disposing your whole estate in favor of your niece. This is because as you mentioned in your letter, you have a legally adopted son whom the law considers as a compulsory heir. Thus, since half of your estate is reserved for your adopted son as his legitime, it goes without saying that you may freely dispose only the other half of your estate.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com