Atty. Gregorio B. Austral, CPA
Leaving your assets according to your wish
We all spend our energy building up our own estate. By sheer luck or hard work, some people are successful in creating business empires and accumulating massive wealth while others are caught up in a rat race until death. Thanks to physical death, the greatest equalizer, for we will not be bringing with us our expensive cars in heaven. Upon death, we will lose our dominion over our properties. But is there a way by which we can dictate to a certain extent the disposition of our wealth?
Estate planning experts say that a person’s last will and testament is an effective tool written by a person while still living whereby he can control the disposition of his properties after he dies. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death (Art. 783, Civil Code). Some experts say that a will is a person’s last love letter to his loved ones.
How will your last love letter look like? Before Facebook and other social media sites, writing love letters requires not only the outpouring of emotions into a piece of paper but also the use of art and ingenuity. Hence, expensive stationery sold like hotcakes in the good old days.
There are two kinds of will: notarial and holographic. A notarial will is the one prepared by and acknowledged before a notary public. It must be subscribed at the end by the testator (the person making the will) himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them (Art. 805, Civil Code).
It appears that making a notarial will requires a lot of formalities. Aside from the stringent requirements imposed by law, the preparation of a notarial will is not privately done as the testator is like the Queen of England bequeathing her fortunes to her successors.
Will it be in accord with your literary standards if you begin your letter in this manner?
KNOW ALL MEN BY THESE PRESENTS: I, LORIE JOY CAUBA, of legal age, a native of Tagbilaran City, married to Octavius Velasco, having been born on the 4th of July, 1974, now actually residing in Taloto District, Tagbilaran City, Bohol, being of sound and disposing mind and memory, and not acting under undue influence, violence, fraud, or intimidation of whatever kind, do by these presents declare this to be my Last Will and Testament which I have caused to be written in English, a language which is known to me. And I hereby declare that:
If you want to keep your last love letter secret and be discovered later once you are gone, you may prefer to make a holographic will. The law requires that 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, Civil Code). In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions (Art. 812, Civil Code).
On a very nice piece of paper, you may begin your last love letter in this manner:
My Dear Belinda, Joshua and Keanna:
By the time you read this, I would have gone to the Great Beyond, gone physically but eternally with you in spirit. While I have told you countless times that I love you and your mother and care for all of you very much, let me use this final opportunity to say that from the time your mother and I got married and the Good Lord gave the three of you to us, I tried hard and did my best to be a good husband and a good father who was obsessed with a dream – to raise a family in the best Christian tradition and provide for the material and spiritual needs of his wife and children. To be sure, I had my weaknesses and failings and I did commit a lot of mistakes, all of which you know, but I’d like you to forget them and charge them to the fact that I, after all, was still a human being. x x x (Lifted and adapted from the Sample Holographic Will, Thy Will Be Done: Understanding the Why, What & When of Estate Planning, By Atty. Angelo M. Cabrera, RFC, 2008 Edition, p. 191)
Before your last wish regarding the disposition of your estate can be implemented, your will needs to undergo a probate proceeding in court. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness, and if the court deems it necessary, expert testimony may be resorted to (Art. 811, Civil Code).
Although most of us do not prepare our Last Will and Testament for some reason or another, all of us do not want our children to quarrel over inheritance. However, if we look closely at the cases decided by the Supreme Court and in the lower courts, we can say that among the cases which undergo long and expensive trial in court is an inheritance dispute. An example is the case of a very wealthy person whose estate reached almost a billion pesos. After his children received their share in millions of pesos, they filed cases against each other since they fought for the possession of a religious icon.
It is therefore advisable for those who have a sizable estate to leave a Last Will and Testament in order to control to a certain degree the distribution of the estate.