Philippine Last Will and Testament (Plus Foreign Wills and Wills of Filipinos Abroad)
If you are thinking of how to leave your property to your children, you may want to consider a will.
I explain the benefits and disadvantages to both types of Philippine wills.
I also provide the guidelines on how to make a holographic or notarial will.
Hopefully, this quick and simple guide will help you in creating your own will and getting your affairs in order.
Read more: If you are interested in enforcing a will in the Philippines, please see the article: How to probate a will in the Philippines
What are the benefits/disadvantages to a will?
Making a will has the following benefits:
- The free portion – or the portion of your property that is not already mandated by law for compulsory heir – can be given to whomever you wish but only through a will.
- While a court case is also needed, disinheriting an heir can only be done through a will.
- Particular pieces of property can be given as you wish.
- You wish to give to your illegitimate grandchild or ampon or make a special provision for a disadvantaged or sick child.
It also has the following disadvantages:
- A will needs to go to court before it can be enforced. This can actually be done while you are still alive to ensure that your wishes really are followed.
- A Filipino making a will abroad needs to follow Philippine succession laws for it to be valid although the will can follow the form of wills in a foreign country.
You must weight the disadvantages with the advantages a will provides.
In addition, creating a valid Philippine will must follow the rules on holographic or notarial wills and the laws of succession such as those on compulsory heirs. The will must then be brought to court to go through probate for the property to be given to the heirs.
What is a valid holographic will?
A holographic will is a will entirely handwritten by the testator or the one making the will. In addition, it is helpful to follow the below guidelines.
- Completely handwritten.
- It is best that the testator signs and dates the will at the bottom of the document.
- It is best to have no revisions or additions. If there are any revisions or additions, each should be handwritten, dated and countersigned by the testator.
- If there are revisions after the signature, then they must be handwritten, signed and dated by the testator.
- Ensure that there are samples of your handwriting available so that the will can be validated.
- Ensure that you follow the laws on compulsory heirs. If these are not followed, your will becomes invalid.
A holographic will can be done simply as the only requirement is that it is handwritten.
But because of this, it can also be subject to fraud.
If you execute a holographic will, do your best to provide proof to show that the will is valid.
Give handwriting samples to as many people as you can. Have a psychologist testify as to your sound mind. Ensure that you follow the law on compulsory heirs. Have witnesses – while not a requirement, it can certainly help.
I also often tell people to probate the will while they are alive.
This certainly helps prove that the will is valid and reduces arguments.
What is a valid notarial will?
A notarial is notarized and signed by the testator and 3 witnesses in the presence of the testator. In addition, the law also states:
- The testator should sign every page on the left margin except for the last where the signature shall appear at the end
- The pages shall be numbered correlatively in letters on the upper part of each page
- The attestation shall state the number of pages, that the testator signed every page and that the all signed in the presence of each other.
- It must be notarized.
- It must comply with the laws on compulsory heirs.
A notarial will is easier to prove.
However, it does have a lot of formal requirements.
For this kind of will, it is best to work with a lawyer to ensure that the will is valid.
In addition, probate the will if you can already do so.
Can a Filipino abroad make a will following the forms of the laws of the foreign country?
A Filipino can create a will following the forms established by the law of the country he lives in. However, he must still follow Philippine succession law such as those on compulsory heirs, the prohibition on joint wills, etc. This will can be probated in the Philippines.
Say a Filipino migrated to the US.
He created a US will leaving his Philippine assets to his US children and Filipino nieces.
Is this will valid?
The will created abroad is valid although it must still follow Philippine laws on succession. It can be probated abroad or probated directly in the Philippines. It can then be used to transfer the properties to the heirs.
However, take note that a joint will is completely invalid in the Philippines. In addition, different citizenships can cause complexity.
Read More: This article discusses Philippine Inheritance Laws and how foreign citizenships or wills can affect inheritance.
Can a foreigner make a will valid in the Philippines according to the laws of a foreign country?
Yes, a foreigner can make a valid will according to a foreign countries laws.
In his case, his national law determines who inherits as well as the form of the will.
So long as the will is valid according to his law, then it can be enforced in the Philippines.
Take note however, that the foreigner cannot will his Philippine property to another foreigner. A foreigner can only inherit when there is no will. This is an absolute restriction that applies in all cases.