Testament maker must know nature of estate to be willed

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dearpao
Dear PAO,
My uncles and my aunts, siblings of my father, are excluding my father and their other siblings of their rightful share in the properties left by my grandmother. My uncles and aunts are claiming almost all of the properties of my grandmother and allotting only a piece of residential property to my father, stating that this was the will of my grandmother.

They are showing to my father and the rest of the excluded siblings a piece of paper which they claim to be my grandmother’s last will and testament. That document is questionable since my grandmother was very ill for a long time before she passed away.
Patrick

Dear Patrick,
A last will and testament is a document which contains the manner of distribution of the properties of the testator, which could only take effect after his death (Article 783, Civil Code). The making of the will is a strictly personal act and it cannot be left in whole or in part to the discretion of a third person or accomplished through the instrumentality of an agent or attorney (Article 784, Civil Code), otherwise the last will and document shall not be valid. Moreover, it is essential that the testator be of sound mind at the time of its execution. Under the law on succession enunciated in the Civil Code, it is not necessary, to be of sound mind, 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 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,Civil Code).

The last will and testament allegedly executed by your grandmother could be valid even if it was made during her illness as long as she still possessed all her reasoning faculties and knew the nature of her estate to be disposed of, the proper object of her bounty and the character of her testamentary act. Moreover, the fact that other heirs were given a bigger share in the estate does not make a last will and testament invalid, provided that the rest of the heirs were given their legitime or that share which is reserved to them by law. Under Article 888 of the Civil Code, the legitime of the children and descendants consists of one half of the hereditary estate of the father and the mother, wherein the latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse. Nevertheless, before the estate of your grandmother could be distributed to her heirs in accordance with her last will and testament, the same should be first probated, wherein it shall be proved in court that the same was executed in accordance with the formalities of the law and that it was duly and freely executed, free from force, duress, influence of fear, threat, undue and improper pressure, fraud or mistake (Articles 838 and 839, Civil Code).

Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.


Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosata may be sent to dearpao@manilatimes.net

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