Last will

LAW EACH WEEK

Is there a need to write a will?

No. The law does not make the creation of a will mandatory. In case of the absence of a last will and testaments, intestate succession will operate in accordance to the provision of the New Civil Code.

What are the kinds of will?

A last will and testament may either be (1) holographic or (2) notarial. Both of these kinds of wills must be in a dialect or language known to the testator. A holographic is handwritten entirely by the testator while a notarial will requires the subscription of the person making the will, attestation of at least three (3) disinterested and credible witnesses, and the same should be acknowledged before the notary public in order to ensure that it was, in fact, made by the person making the will. (Articles 805, 806 & 810 NCC)

Can I replace a notarial will that I executed before?

Yes, replacement of an old will with a new one is allowed under our laws on succession and in effect, revokes your first will. Article 830 of the New Civil Code provides that no will shall be revoked except in the following cases: (1) By implication of law; (2) By some will, codicil or other writing executed as provided in case of wills; or (3) By burning, tearing, canceling or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, canceled or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancelation or obliteration are established according to the Rules of Court.”

This provision provides for the manner of replacing the old will with a new one. However, it is vital that the subsequent will should either contain an express revocatory clause or phrase revoking the first/old one or is incompatible with the old one. The new will has to be executed to in manners and formalities provided for by law, otherwise it might be denied probate and the first/old will may still be considered valid. In short, the mere preparation of a new will does not automatically revoke the old one.

How should the new will look like then or what should it contain?

Philippine jurisprudence provides that in order to effectively replace the old will with a new one, the testator must expressly mention his or her intention to replace the old one. There should then be a mention and identification of the old will intended to be revoked. Moreover, revocation of a previous will can also be done when the testator writes provisions on the second will that are clearly incompatible with the old one. (Molo v. Molo 90 Phil 27)