Dear PAO,

My sister traveled to the United States to arrange the burial of our Filipino grandparents. Among the items she retrieved from their possessions was an old, handwritten last will and testament. The will divided their properties in the Philippines among their children and other descendants. Both Lolo and Lola signed it, and it was notarized. Is such a last will and testament valid here in the Philippines?

Jayr

Dear Jayr,

Your grandparents executed a joint will, which is a single document signed by two or more persons containing their intentions and wishes.

As a general rule, a Filipino residing abroad is permitted to execute a will in any form permitted by the laws of the country where it is made, and that will may be probated in the Philippines under Article 815 of the New Civil Code (NCC). Thus, the form of a will may follow the laws of the country where it was made and executed by the testator or the person making the will.

However, Philippine law expressly declares a joint will to be void. Under Article 818 of the NCC, “[t]wo or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.” The reason for this prohibition, especially as regards husband and wife, is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger or dominant in will or character may be able to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. (In re: Victor Bilbao. Ramon N. Bilbao v. Dalmacio Bilbao, et al., GR L-2200, Aug. 2, 1950, penned by Associate Justice Marcelino Montemayor)

Considering that your grandparents executed their last will and testament jointly, such will is invalid under Philippine law. Even if it is compliant with the laws of the United States as to the form of a will, the same cannot be given legal effect here in the country as it is in direct violation of our NCC. As pronounced by the Supreme Court, it is unnecessary to emphasize that the fact that joint wills is in common usage could not make them valid when our Civil Code consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Paula de la Cerna, et al. v. Manuela Rebaca Potot, et al., and the Court of Appeals, GR L-20234, Dec. 23, 1964, penned by Associate Justice Jose Benedicto Luna “JBL” Reyes).

For a final will and testament to be deemed legitimate, it must comply with certain legal requirements. A person should, if at all feasible, consult a lawyer before drafting their last will and testament to ensure that the legal formalities required by law are complied with. Otherwise, the intention and wishes of the person making the will may not be given legal effects due to some defect in the will.

We hope that we are 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.

Thank you for your continued trust and support.

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]