I am planning to execute a last will and testament, leaving a bigger part of my property to my son and little to my daughter. She has been a disgrace to the family for living an immoral life, although I don’t want to totally disinherit her because she is still my child. They are the only family I have ever since my wife died. I am just concerned about the validity of this provision if ever I will put this in my will. Please give me some advice.
Under the law, a person is given the power, subject to such limitations and formalities which the law imposes, on how he/she wants to distribute his/her properties to take effect after his/her death. This can be done, through the execution of a will.
As defined, 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 his estate, to take effect after his death (Article 783, New Civil Code of the Philippines).
In your situation, aside from complying with the formalities in making a last will and testament as prescribed by law, you must likewise ensure that the disposition of properties as stipulated therein does not violate or breach the legitime of your children, your compulsory heirs. Pursuant to Article 886 of the New Civil Code of the Philippines (NCCP), 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.
In the same vein, the law reserves half of the estate of the father or mother for legitimate children. Article 888 of the NCCP provides:
“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.”
Clearly, you cannot freely dispose of your whole estate and give it to someone else as half of which is reserved for your legitimate children. But, you can do this with the other half. Thus, considering that you have only two children and you wanted to give more to your son, whatever your reasons are, you can incorporate this in your will but you have to ensure that the legitime of your daughter is not affected.
Otherwise, your son’s inheritance based on your last will and testament may be reduced, up to the extent that your daughter’s legitime was violated, so that the latter may receive what the law prescribes.
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 firstname.lastname@example.org