Prior conviction for a crime no hindrance to making last will

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Persida Acosta

Persida Acosta

Dear PAO,
My uncle wants to make his last will and testament because he feels that he is already old and he wants everything to be in order before he passes away. But he is concerned about his having been convicted of a crime, serving out the penalty of reclusion temporal. He wants to know if his imprisonment has disqualified him from making his last will and testament. Thank you and warm regards.
Alain

Dear Alain,
As a general rule, all persons may execute a last will and testament except when they are expressly prohibited by law to do so (Article 796, New Civil Code of the Philippines). It is only essential that the person who is executing such will be at least 18 years of age and be of sound mind (Article 797 and Article 798, id).

To be of sound mind, according to our law, does not mean 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. It is sufficient that the testator, at the time of the making of his last will and testament, is able to know the nature of the estate that he is disposing of, the proper objects of his bounty, as well as the character of his testamentary act (Article 799, id).

In the situation of your uncle, we believe that he may proceed with the execution of his will as long as he is of age, of sound mind and he does not possess any of the prohibitions under existing laws. We take into account of the fact that he has a prior conviction and he has served out the penalty of reclusion temporal. We, however, believe that such fact will not serve as an obstacle for him to execute his last will and testament. If we look closely at provisions of Article 41 of the Revised Penal Code, it provides that the penalty of reclusion temporal carries with it the accessory penalty of civil interdiction for life or during the period of the sentence, as the case may be. Nevertheless, civil interdiction deprives the offender, among others, from managing his or her property and of disposing the same by any act or any conveyance inter vivos, but it does not prohibit transfers, which are to take effect mortis causa or upon the death of the testator (Article 34, Revised Penal Code).

Accordingly, your uncle may still execute a last will and testament, considering that he has not lost his capacity to make such will merely on account of his prior conviction.

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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