Not everyone can be witness to a will

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Persida Acosta

Persida Acosta

Dear PAO,
We want to ask a question about the qualifications of the witnesses in the execution of a will. Can anyone be a witness in the preparation of a last will and testament?

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My friend was one of the witnesses who subscribed in the last will of my aunt. This friend of mine has now migrated to another country and has been living there for more than a decade already. Because of this, we want to know if the will of my aunt is valid even though one of the witnesses does not live here in our country anymore.
Nelson

Dear Nelson,
To answer your question, we must first clarify that there are two kinds of wills: holographic will and attested will. A holographic will does not require any witness in its execution since it only needs to be written, dated and signed by the hand of the testator (Article 810 Civil Code of the Philippines). On the other hand, one of the requisites in the preparation of an attested will is the attestation and subscription of at least three credible witnesses. (Art 805, Ibid.)

Since you mentioned in your situation that the will of your aunt was witnessed and subscribed, then it is logical to assume that the last will of your aunt is an attested will. Considering this, the law provides for the qualifications of a witness in an attested will. According to Articles 820 and 821 of the Civil Code:

“Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n)

Article 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a document, perjury or false testimony.”

These cited provisions enumerate the qualifications and disqualifications of a witness in the preparation of an attested will. In relation to your query, it can be observed that the domicile of a person is a ground in determining the qualification of a witness since Article 821 of the said law states that a person who is not domiciled in the Philippines is disqualified as a witness to a will.

Although it may appear that your friend who migrated abroad is not anymore domiciled here in the Philippines, it will still not affect the validity of your aunt’s last will. This is because what is important is that your friend was competent to be a witness during the time that he acted as a witness in the execution of your aunt’s last will. This is according to a provision of the Civil Code which states that:

“Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.”

In line with this provision, the time of the execution of the will is the relevant temporal criterion in determining the competency of the witness of the will. (Ruben F. Balane, Jottings and Jurisprudence in Civil Law (Succession) 2006) Thus, the fact that your friend left the country and eventually lived abroad after he witnessed the will is not material to the validity of the will as long as he was competent to be a witness at the time of the execution of your aunt’s will.

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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