• Making a will

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I am a septuagenarian and own a substantial amount of wealth. I am planning to make a will and see to it that this will be allowed by the court while I am still alive. Can this be done?
    Mang Erning

    Dear Mang Erning,
    Article 783 of the New Civil Code of the Philippines defines a will as follows:
    “Art. 783. 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.”

    Based on the above definition, a will is a personal and voluntary act wherein a person disposes his pieces of property and rights, in accordance with the formalities and requisites provided by law, to take effect subsequently after his death. Before the estate of a decedent is distributed in conformity with the will he/she executed, the same must be probated. This is according to Section 1, Rule 75 of the 1997 Rules of Court, which provides:

    “Sec. 1. Allowances necessary; Conclusive as to execution. – No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.”

    The process of determining the extrinsic validity and allowance of a will or the so-called probate of a will is mandatory. Thus, unless and until a will is probated and allowed by the court, the estate of a decedent shall not be partitioned in accordance with his/her will.

    Insofar as you desire to have your will probated during your lifetime is concerned, the same may be done, as this is allowed by the law. No less than the New Civil Code of the Philippines allows this:

    “Art. 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. xxx”

    In the case of Octavio S. Maloles II vs. Pacita De Los Reyes Phillips (G.R. No. 129505, January 31, 2000), the Supreme Court had the opportunity to explain the reason behind the afore-cited law, to wit:

    “The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus:“Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator’s life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator’s death will refer to the intrinsic validity of the testamentary dispositions.

    It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases.”

    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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