Possible witnesses to execution of a last will and testament

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Persida Acosta

Persida Acosta

Dear PAO,
Can my daughter be a witness to my mother’s execution of her last will and testament? My mother is currently in the province and it is only my husband and daughter who are taking care of her. My mother expressed her apprehension of having other people, like neighbors, witness her will. Will there be any problem if she is already bedridden? I am looking forward to your advice.

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Luisa

Dear Luisa,

Any person who desires to dispose of his or her property, which is to take effect upon his or her demise, may execute a last will and testament. The execution of a will is a strictly personal act. It may not be left to the discretion or be undertaken through the instrumentality of another person, whether it be an agent or an attorney (Article 784, New Civil Code of the Philippines [NCCP]).

In the situation of your mother, we believe that she may execute her last will and testament even if she is already bedridden, as long as she is not expressly prohibited by law to execute a will and as long as she is of sound mind. As explained under the 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 796 in relation to Articles 798 and 799, NCCP).

If your mother can no longer completely write her own last will and testament, then perhaps it would be more practical for her to execute a notarial will. Such kind of will may be made in a typewritten or computerized form, provided that the same is subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. In the execution of a notarial will, your mother or the person requested by her to write her name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that  your mother signed the will and every page thereof, or caused some other person to write her name, under her 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 the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them (Article 805, NCCP). In addition, such last will and testament must be acknowledged by your mother and her witnesses before a notary public (Article 806, NCCP).

Insofar as your daughter being a witness to your mother’s execution of her will, it is necessary that she is also of sound mind, that she is eighteen years or over, and that she is not blind, deaf or dumb. It is also essential that your daughter is able to read and write (Article 820, NCCP). If your daughter is not domiciled in the Philippines, she may not serve as a witness of your mother’s will. Furthermore, if she has been convicted of falsification of a document, perjury or false testimony, she is also disqualified from being a witness (Article 821, NCCP). We would also want to emphasize that if your mother is giving you a device or legacy, the same shall be considered void unless there are three other competent witnesses to your mother’s will (Article 823, NCCP).

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.

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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