• Last will can contain conditions

    Persida Acosta

    Persida Acostapao

    Dear PAO,
    Is a condition in a last will prohibiting remarriage of a surviving spouse valid?

    Dear May,
    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).

    Simply put, a person is allowed by law to control the distribution of his/her properties to take effect upon his/her death through a will, the form and solemnities of which must be in accordance with the procedure set out by law.

    A will may contain conditions, which the testator may impose. However, he/she cannot impose any condition upon the legitime, which is that portion of the estate which is reserved for the compulsory heirs. This is according to Article 872 of the New Civil Code of the Philippines, to wit:

    “Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.”

    In the same vein, a will containing conditions, which are illegal, contrary to morals or impossible to fulfill shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide (Article 873, New Civil Code of the Philippines).

    Likewise, a condition in a will prohibiting an heir to contract a subsequent marriage shall be considered as not written unless the same has been imposed on the surviving spouse by his/her deceased spouse or the latter’s descendant or ascendant (Article 874, New Civil Code of the Philippines).

    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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