Making a last will and testament in the Philippines

Philippine law recognises two kinds of will: a notarial will, typed or written, signed before three witnesses and a notary; and a holographic will, written entirely by hand by the person making it. Each has strict rules of form. Whatever the will says, certain heirs, such as your children and your spouse, are owed a fixed share called the legitime. And no will passes property until a court has allowed it in probate (Civil Code Art. 838).

The notarial will

The Civil Code’s rules (Arts. 804 to 806):

• In writing, in a language or dialect the person making it knows.
• Signed at the end by the person, or by someone else writing the person’s name in their presence and at their express direction.
• Three or more credible witnesses sign it, in the presence of the person and of one another.
• The person and the witnesses also sign every page except the last, on the left margin.
• Every page is numbered “correlatively in letters” at the top.
• An attestation clause states the number of pages and that the person and the witnesses signed in each other’s presence. If the witnesses do not know its language, it must be interpreted to them.
• The person and the witnesses acknowledge the will before a notary public (Art. 806).

Extra steps apply if the person is deaf or blind: a deaf person reads the will personally or names two people to explain it (Art. 807); a blind person has it read aloud twice, once by a witness and once by the notary (Art. 808).

The holographic will

A holographic will “must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed” (Art. 810).

• Anything written below the signature must be dated and signed too (Art. 812).
• Every insertion, deletion or change must be signed in full (Art. 814).
• In probate, at least one witness who knows the handwriting must say it is the person’s; three if the will is contested. The court can also call a handwriting expert (Art. 811).

Compulsory heirs and the legitime

The legitime is “that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs” (Art. 886). The rest is the free portion, which the will can leave to anyone.

Common cases, as a share of the estate (Arts. 888 to 900):

Scroll the table sideways for more

Illegitimate children are compulsory heirs too. Each gets half of a legitimate child’s legitime (Family Code Art. 176, as amended by RA 9255). Their shares come out of the free portion, after the spouse’s share (Art. 895). Other combinations have their own rules (Arts. 894 to 901), so ask a lawyer to work out a real family’s shares.

These are the minimums a will must respect. With no will at all, the law’s rules on intestate succession decide the shares instead.

Making a will while abroad

• A Filipino in another country may make a will “in any of the forms established by the law of the country in which he may be”, and it may be probated in the Philippines (Art. 815).
• A holographic will can be made “in or out of the Philippines” (Art. 810).
• Couples cannot make a joint will. A joint will made by Filipinos abroad “shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed” (Arts. 818 and 819).
• A will already proved in a foreign court can be allowed by a Philippine court, with authenticated copies of the will and the foreign court’s order (Rules of Court, Rule 77).

For a notarial will signed abroad, no official guidance on how it should be signed and acknowledged has been published. Ask the nearest Philippine embassy or consulate.

Keep the original safe and tell someone you trust where it is. The Rules of Court require whoever has a will to deliver it to the court or the named executor within 20 days of learning of the death (Rule 75, Sec. 2).

After death

• Probate. An executor, an heir or anyone with an interest files a petition to have the court allow the will (Rule 76). The court can refuse a will that was not properly signed and witnessed, that was made when the person was insane or mentally incapable, or that was made under duress, undue pressure or fraud, among the grounds in Rule 76, Sec. 9. You can also ask a court to allow your will while you are alive (Art. 838).
• Estate tax still applies. A will does not reduce the tax. See estate tax in the Philippines.
• Settling without a court is only possible when there is no will. See extrajudicial settlement of estate.
• Giving property while alive is taxed differently. See donor’s tax.

Naming a beneficiary on a life insurance policy is a separate matter from a will. See what a beneficiary is.