Published — June 1, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Aside from knowing WHO ARE CAPACITATED TO MAKE A WILL? Read: NOTARIAL WILL VS. HOLOGRAPHIC WILL (Part II)
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The person who makes a will is called Testator
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Persons under eighteen (18) years of age CAN NOT make a will
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The testator must be of sound mind at the time he or she made his or her will
In our previous articles, the two kinds of will were discussed (please click here).
You might want to consider making a will this time. The question is, “Are you capacitated to make a will?”
The Philippine law says:
Article 796 of the New Civil Code (NCC) of the Philippines states that “all persons who are not expressly prohibited by law may make a will”.
Those who are expressly prohibited by law are first, persons under eighteen (18) years of age and second, persons who are not of sound mind. Thus, a person who is exactly eighteen (18) years of age or older and who is of sound mind may make a will.
To be of sound mind, it is not necessary 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 enough that the testator is able to understand the following:
- the nature of the estate to be disposed of
- the proper objects of his bounty
- the character of the testamentary act
In other words, the testator must be able to recognize the reasons why he or she is executing a will, able to know the specific properties he or she is donating, and able to identify his or her heirs. The testator must be aware of the consequences of his actions.
Accordingly, a person is of unsound mind when he or she made his or her will. Should the testator prove that he or she was of sound mind at the time he or she prepared his or her will?
The Philippine law says:
ALL persons are presumed to be of sound mind. Whoever questions the soundness or mental state of the testator must show proof that testator is of unsound mind at the time he or she executed his or her will.
Please note that the important thing is that the testator was of sound mind at the time he or she made his or her will.
If the testator has become insane after the execution of the will, the will is valid. If the testator was insane but subsequently regained sanity and eventually made a will, the will is valid. But, if the testator was publicly known to be insane one month or less before making his or her will, evidence must be shown by the person maintaining its validity to prove that the testator made the will during a lucid interval. Lucid interval is a medical term referring to a temporary period of rationality.
May a married woman make a will without the consent of her husband?
The Philippine law says:
A married woman may make a will without the consent of her husband. She also does not need to obtain any authority from the court.
A married woman may dispose all of her separate property as well as her share of the conjugal partnership or absolute community.
Now, after a will has been executed, may it be supplemented? The answer will be posted in this same platform in a few days.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
All rights reserved.
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