I am already in the twilight of my life, and I have decided to prepare my own last will and testament. I am very anxious about this, and I want to ensure that my last will be followed by my family. Because of this, I want to know if I can already have this will approved by Court, so I can die knowing that my family is bound by my last will. Or do we have to wait until my death before my will can be approved? I hope you can advice me on this. Thank you!
Every last will is required to undergo what is called a probate proceeding wherein the Court having jurisdiction will determine, in accordance with the Rules of Court, whether the contents of the last will shall be allowed or disallowed. This is stated in Article 838 of the Civil Code of the Philippineswhich states that:
“Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.” (Emphasis supplied)
As seen from the abovecited provision, the probate of a will is mandatory in order for your last will to have a legal effect. And as also stated therein, the probate of a last will may be done even during the lifetime of the testator. Section 1, Rule 76 of the Rules of Court expressly states that the testator himself may, during his lifetime, petition the Court for the allowance of his will. Thus, your family need not wait until after your death to have your will probated since the law allows you as the testator to file a petition for the allowance of your own last will. To summarize, the determination whether a last will is valid is done during the probate proceedings. If your last will is allowed by the Court after these proceedings, then your estate shall be settled in accordance with your intentions as expressed in your last will and your heirs shall receive their share in the manner you set forth therein. On the other hand, if your last will is disallowed, then your estate shall be settled intestate or without a will in accordance with the manner set by 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 firstname.lastname@example.org