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 learning about what is a will, you may also read: Frequently Asked Questions on Land Titles and Dealings with Real Property
Under Article 783 of the New Civil Code (NCC), 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. From its legal definition, it is clear that a testator, a person who has executed a will, has a say and control on how he or she would dispose his or her estate. The disposition refers to the transfer of ownership of a particular property which includes donation among others. However, the transfer or conveyance of ownership takes effect only after his or her death. Thus, even when a person makes or executes a will during his lifetime, the will has no effect unless after his or her death.
The making of a will is strictly a personal act. It cannot be left to the discretion of a third person. For instance, as between A and B, B is the testator. In this case, B should be the one making a will regarding his own estate. B cannot allow A make a decision as to how he would dispose his estate. In addition, the duration or efficacy of the designation of heirs, or the determination of the portions which they are to take, cannot be left to the discretion of a third person. Also, the testator may not make a testamentary disposition in such a manner that another person has to determine whether such disposition will be given effect or not. What can be delegated or what can be entrusted to a third person is the distribution of specific property or sums of money that the testator may leave.
In interpreting the disposition of a Will, and in case of doubt, the interpretation which will result in the giving effect of the Will shall be preferred. When there is an imperfect description in the Will or when no person or property exactly answers the description, the testator’s intention will prevail or control. As a consequence, the testator’s intention shall be ascertained from the words of the will, taking into consideration the circumstances under which it was made. In interpreting the testator’s intention, oral declarations are excluded.
As to the words used, they are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be gathered and proved. When technical words are used, the same are to be taken in their technical sense unless the context clearly indicates a contrary intention or unless it appears that the Will was made solely by a testator who is not acquainted with such technical sense. All words used in a Will are to receive an interpretation which will give to every expression some effect rather than one which will render any of the expressions inoperative.
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.
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