Dear PAO, During our marriage, my husband and I were not able to conceive a child. Fortunately, we still had the opportunity to experience parenthood with our niece. Since we are getting older, we are planning to execute a joint will instituting our niece and one of my nephews as our heirs. Can we execute a joint will? Nathalie

Dear Nathalie, According to Article 818 of the New Civil Code, the law prohibits two or more persons from making a will jointly, or in the same instrument, to quote:

“ARTICLE 818. Two 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.”

Take note that the law imposes strict rules and formalities when it comes to last wills and testaments. These formalities are imposed in order to safeguard the estate and the wishes of the testator even after he/she dies.

Let us briefly discuss the concept of a “joint will.” Joint will refers to the testamentary dispositions contained in a single instrument made jointly by two or more testators. The joint will could cover properties owned in common by the joint testators, or properties separately owned by them.

The rationale why the law prohibits “joint will” is because one of the joint testators might have influence over the other in disposing his/her estate. In other words, the law recognizes the risk that the more dominant testator could exert undue influence on the other testator. Related thereto, if one of the testators was under undue and improper pressure and influence, his/her last will and testament will not be allowed by the probate court as one of the grounds for disallowing a will under Article 839 of the New Civil Code is “[i]f it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person.”

In your case, you are prohibited by law from making a joint will with your husband. In any case, having a separate last will and testament can always be considered if you want to dispose of your personal properties and share in the community assets.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your 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]