Dear PAO,

My husband died three years ago without leaving a written last will and testament. However, years before his death, he made a video recording expressing how he wished the business we had established two years ago before our marriage would be bequeathed. Can this video recording be considered his last will and testament, even though it is not in writing?

BR

Dear BR,

A last will and testament is recognized in our jurisdiction as one of the means for a person to express how his or her properties will be distributed after death. As provided under Article 783 of the New Civil Code of the Philippines:

“Art. 783. 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 this estate, to take effect after his death.” (Emphasis supplied)

Subsection 3, Title IV of the said Code specifies the Forms of Wills. To begin with, Article 804 of the same Code states that it is essential for a last will and testament to be in writing and executed in a language or dialect known to the testator.

There are two kinds of will under our law — notarial will and holographic will. A notarial will must not only be in writing but must also be subscribed at the end thereof by the testator 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 the testator to write his name, as well as the instrumental witnesses of the will, are also required to sign each and every page of the will, except the last page, on the left margin. Likewise, all the pages of the will must be numbered correlatively in letters, which are placed on the upper part of each page. (Article 805, id) The testator and his or her witnesses must have the last will and testament acknowledged before a notary public. (Article 806, id)

A holographic will, on the other hand, must be entirely written, dated, and signed by the hand of the testator himself. There is no other form necessary and such will may be made in or out of the Philippines. It also does not need to be witnessed. (Article 810, id) Should the testator in a holographic will make other dispositions below his or her signature, the same must be dated and signed by him or her in order to make such testamentary disposition valid. (Article 812, id) Moreover, any insertion, cancellation, erasure or alteration in a holographic will must be authenticated by the testator’s full signature. (Article 814, id) It must also be emphasized that Filipino citizens in a foreign country are authorized to make a will in any of the forms established by the law of the country in which they may be. Such will may be probated in the Philippines. (Article 815, id)

For foreign citizens abroad, their will produces effect in the Philippines if made in consonance with the formalities prescribed by the law of the foreign country where he resides or his country of citizenship or in conformity with what our New Civil Code prescribes. (Article 816, id)

Accordingly, if your husband is a Filipino citizen who executed his last will and testament in the Philippines, his video recording will not be accepted as a valid testamentary disposition as it failed to comply with the required formalities under the New Civil Code.

However, if he made his testamentary disposition in a foreign country and a video recording is an acceptable form of testamentary disposition under the law of such foreign country, or if he is a foreign citizen and his country of residency or citizenship recognizes it as a valid form of testamentary disposition, then his will which was made through a video recording may be probated in the Philippines.

In relation to this, Section 1, Rule 75 of the Rules of Court states: “No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.”

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]