Determining validity of last will and testament

1
Persida Acosta

Persida Acosta

Dear PAO,
My aunt died as a single woman and without any children. My uncle said she executed a last will and testament, which stated that he gets to inherit the property of my aunt, but he never read it during the burial. That property is still under my grandfather’s name, though there is a deed of sale executed before by my grandfather (during his lifetime) in favor of my deceased aunt, and my other aunt, the latter’s sister, who is now working abroad.

How will we know if her last will and testament is valid? Is my uncle now the rightful owner of the property? How about my other aunt? Please advise.
HC

Dear HC,
As provided under our New Civil Code, all persons may make a will as long as they are at least 18 years of age, of sound mind and not expressly prohibited by law to execute the same. (Articles 796, 797 and 798, Ibid.)

Insofar as the formalities of making a will, it is necessary that it be in writing and executed in the language or dialect known to the testator. (Article 804, Id.) If it is a holographic will, it is only necessary that it be entirely written, dated and signed by the hand of the testator. It does not need to be witnessed and is not subject to any other form (Article 810, Id.)


On the other hand, if what is executed is a notarial will, it should be subscribed by the testator at the end thereof or by the testator’s name written by some other person in his/her presence and with his/her express direction and attested and subscribed by three or more credible witnesses who appear before the testator and of one another. (Article 805, Id.) Further, the will must be signed on the left margin of each and every page, except the last, by the testator or the person he requested to write his name as well as the instrumental witnesses thereto. Its pages must be numbered correlatively in letters placed on the upper part of each page. The attestation must also 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/her name, under his/her 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 written in a language not known to any of the witnesses, it shall be interpreted to them. (Article 805, Id.) Lastly, the will must be acknowledged by the testator and his witnesses before a notary public. (Article 806, Id.)

Accordingly, if the will that was left by your late aunt complies with the foregoing, then it may be said that such will is valid. It is not necessary that it be read by your uncle during the burial.

Probate proceedings, however, must first be pursued in order to completely fulfill the provisions of her will as it is necessary that its extrinsic validity be determined by the court. As mandated under Section 1, Rule 75 of the Rules of Court: “No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.” For this reason, your uncle must deliver the will to the court of the place where your aunt last resided, or if she is a non-resident of the Philippines to the court of the place where the property is situated, within twenty days from the time he obtains knowledge of the death of your aunt. (Section 2, Rule 75, Id.) If the court finds everything in order, it will respect the provisions of the said will.

We want to emphasize, though, that if there is, in fact, a deed of absolute sale executed by your late grandfather in favor of your two aunts, the probate proceedings will only affect the portion of the property [that]forms part of the estate of your aunt, that is, the portion [that]was sold to her by your late grandfather. Correspondingly, your other aunt may still go after her share in that property being a co-owner thereof.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Share.
.
Loading...

Please follow our commenting guidelines.

1 Comment

  1. stephen calaguian on

    Dear PAO,

    My brother had court decision of conviction of his crime for insulting of authority for 15 days imprisonment but until now for almost a month my brother didn’t received warrant of arrest. please advice

    godbless