One who executes a will must be of sound mind

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Dear PAO,
What factors should be considered in making a will? My father, who is now 65 years old, has expressed his desire to make a will but we do not know how to go about it. Will his age affect it?
Ruth

Dear Ruth,
Our law defines a will as an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death (Article 783, New Civil Code of the Philippines).

As a rule, all persons are allowed to execute a will, provided they are not expressly prohibited by law (Article 796, New Civil Code of the Philippines). Additionally, the person who executes a will must be at least 18 years of age and be of sound mind.

In the case of your father, we are of the opinion that he may make his will. The fact that he is already 65 years of age will not affect his capacity to make a will as long as he is still of sound mind. According to our law, “To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. x x x It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act” (Article 799, New Civil Code of the Philippines).


Insofar as the formalities of making a will, it should be emphasized that a will must be in writing as there can be no oral will, and it must be executed in the language or dialect known to the testator (Article 804, New Civil Code of the Philippines). If your father desires to execute a holographic will, it is only necessary that it be entirely written, dated and signed by his hand. It need not be witnessed and is subject to no other form (Article 810, New Civil Code of the Philippines).

On the other hand, if your father wishes to execute a notarial will, it should be subscribed by him at the end thereof or by the testator’s name written by some other person in the presence of your father and with his express direction and attested and subscribed by three or more credible witnesses who appear before the testator and of one another (Article 805, New Civil Code of the Philippines). His will must be signed on the left margin of each and every page, except the last, by him or the person he requested to write his name as well as the instrumental witnesses thereto. The pages of the said will must be numbered correlatively in letters placed on the upper part of each page. The attestation must state the number of pages used upon which the will is written, and the fact that your father signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of your father and of one another. If the attestation clause is written in a language not known to any of the witnesses, it shall be interpreted to them (Article 805, New Civil Code of the Philippines). Lastly, the said will must be acknowledged by your father and his witnesses before a notary public (Article 806, New Civil Code of the Philippines).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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