• Joint wills prohibited by law

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My sister and her ailing husband made their last will and testament together in one long document shortly before he died. I have a copy of it and I can confirm that they really made it, since I was there when they wrote and signed it together. After a few months, my sister also passed away. Now, their children as their heirs are quarrelling over the division of their estate. Some of them are claiming their share on the basis of the will jointly executed by my sister with her husband. Some of the siblings, however, allege that the will has no effect since it was defectively made, and therefore cannot be used as a basis to divide their estate. |

    I want to ask if there is any basis for the claim of some of the children that the last will of their parents is defective. And, why is it defective anyway? Thanks and more power!

    Dear Jimmie,
    Since you mentioned in your narration that your sister and her husband made their last will and testament together in one document, it appears that their last will was prepared in the form of a joint will. This kind of will is called a joint will since it contains the wills of more than one person in one last will and testament. This manner of preparation of a last will has a substantial effect on its legal validity. The Civil Code of the Philippines has this to say when it comes to joint wills:

    “Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person”(Emphasis supplied).

    As mentioned in this provision, there is a clear prohibition against the making of a joint will. The reason for considering joint wills to be against public policy in succession laws, and as supported by jurisprudence, is that it limits the mode of revocation of a will since one of the testator cannot destroy the will without also revoking the will of the other testator; it compromises the nature of secrecy of a will; it presents danger of undue influence between testators; and there may be a danger of a testator tempted to kill the other testator (Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession, 2006, citing Dacanay v. Florendo, 87 Phil. 324, 1950).

    From the above-cited provision and jurisprudence, it is clear that joint wills are prohibited by law. And this is possibly the main reason for the claim of the other children of your sister that their parents’ joint will has no legal effect. In any case, those who still insist on the validity of the that last will may file a petition with the court for the probate of the subject last will, so that it can be judicially determined and settled if the will should be allowed or disallowed in accordance with the requirements of the law.

    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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