Disqualification of a witness to succeed to a last will and testament


Persida Acosta

Dear PAO,
My uncle left a notarized last will and testament when he passed away. In the said last will, my uncle gave a portion of his properties to one of my cousins. Our other family members are questioning this gift of my uncle to our cousin in his last will, since the latter was among the five witnesses in the preparation and execution of my uncle’s last will. We were told that a witness to a last will is disqualified from receiving anything from the said will.
Is this true? We are confused because our cousin still insists that there is nothing illegal to it, and that our uncle’s gift to him in the last will is still valid. What does the law say about this? Is my cousin correct in his claim, or is he disqualified since he witnessed the will of my uncle? I hope you can advise us about this. Thank you very much.

Dear Domegot,
Based from the details you have given us, it appears that your uncle executed a type of a last will and testament legally known as an attested will. This kind of a last will is prepared by following the strict form and requirements specified in Article 805 of the Civil Code of the Philippines.

Some of the essential requisites in the preparation of a valid attested will is that it should contain the signature of the testator together with the signatures of at least three witnesses who shall attest the execution of the will and the requirement that its execution should be notarized. (Articles 805 and 806, Ibid.) Considering that your uncle’s last will has these aforementioned features of an attested will, then it is reasonable to assume that your uncle’s last will is an attested will.

Since it is an attested will that requires at least three witnesses, the issue of the qualification of the witnesses to succeed from this will can be resolved by referring to Article 823 of the Civil Code of the Philippines which states that:

“Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.” (emphasis supplied)
While this provision confirms that witnesses to a will are disqualified to receive any disposition from a testator’s will, this provision also mentions that the said disqualification applies only if there are only three competent witnesses to the will. Following this, if there are more than three witnesses, a disposition to one of the witnesses does not make the disposition void since there are still other three competent witnesses to comply with the required number of witnesses to an attested will. Thus, the said witness can still receive from the attested will.

Applying this provision to your situation, since you mentioned that your uncle’s last will was attested by five witnesses, which is more than the minimum required number of witnesses to an attested will, then the disposition to your cousin who is just one of the five witnesses to your uncle’s last will is valid. Therefore, your cousin is not disqualified to receive any disposition from your uncle’s last will, just because he was a witness to its execution, as long as there are still three other competent witnesses to it.

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 dearpao@manilatimes.net


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