Wills

A will is defined as 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. When a person dies while leaving a will behind, his death is called a testate death (as opposed to an intestate death) and he's called a testator (even while alive.)

Characteristics:

1.) Statutory/legal right

2.) Unilateral act

3.) Formal/solemn act

4.) Animus testandi/intent to make a will must be present

5.) Testator must have the capacity to make a will

6.) Strictly a personal act in all essential matters

7.) Effective mortis causa/when the testator dies

8.) Ambulatory/revocable

9.) Free from vitiated consent (must have been executed freely, knowingly and voluntarily) or will be disallowed

10.) Individual act

11.) Disposes of the testator's estate in accordance to his wishes (to a certain degree)

Consequences of Being Strictly Personal

A will can't be left partly or completely in the discretion of a 3rd person; it also can't be accomplished through the instrumentality of a lawyer or agent (but the lawyer can assist the testator in making the will.) Duration/efficacy of the designation of heirs, devisees and legatees, as well as the portions they will receive, can't be left to a 3rd person's discretion. The testator may entrust money or specific property to a 3rd person to be distributed to specific classes or causes (charities, etc.) and may even specify the  persons, institutions or establishments to which the money and/or properties are to be delivered.

The testator can't make a testatmentary disposition in a way that another person has to determine whether it is operative or not.

Testamentary capacity has the following requisites:  (1) the testator must be at least 18 years old at the time he made the will,  (2) there must be no express legal prohibition for him to make a will, and (3) he must be of sound mind when he executed the will (not before or after.) A person suffering from civil interdiction can make a will because even though he's legally prevented from managing or disposing of his property while living, a will becomes effective mortis causa.

A woman can make a will without her husband's consent; she can even do it without the authority of the court. But when making a will, when it comes to conjugal or absolute property she can only dispose of her share. She can dispose of her separate property.

Soundness of mind has the following (legal, not psychological) characteristics: (1) the testator knows the nature of the estate to be disposed of, (2) he knows the proper subjects of his bounty (he knows what he owns, in other words,) and (3) he knows the character of the testamentary act/making of the will.

Supervening Capacity/Incapacity

Art. 800-801 tell us that wills are considered as being made by a person with a sound mind until somebody claims that the testator wasn't of sound mind when he made the will. The person claiming must prove it. But if the testator was already known to be insane 1 month or less before he made the will, a person claiming that the will is valid must prove that it was made when the testator was lucid.

If a testator was sane when he made a will and became insane afterwards, the will is considered valid. The opposite is also true: if the testator was insane when he made the will and became sane later, the will is still invalid. The solution is to draw up another will.

Testamentary Capacity vs. Testamentary Power

1.) Testamentary capacity is the ability to make a will. Testamentary power is the privilege to given by law to a person to make a will.

2.) Testamentary capacity is the capacity to inherit through a will. Testamentary power is the power to make a will/codicil.

3.) Testamentary capacity is the right to make a will if the testator has all the requisites (i.e. sound mind, at least 18 years old, etc.) Testamentary power is the statutory right to dispose of property through acts that are effective mortis causa.

Joint and Mutual Wills

Two people can make separate wills where they can become heirs of each other. These are called mutual wills. Joint wills, however, where 2 people institute each other as heirs of one another in the same document, are not valid in Philippine law even if made be foreigners in the Philippines. If 2 people make a mutual will in the same document, it becomes a joint will. The only instance where Philippine law will recognize a joint will is if the national law of the foreigners who made such a will allows it.

Why Joint Wills are Void:

1.) To allow as much secrecy as possible, since a will is a purely personal act.
2.) Prevent undue influence by the more aggressive testator over the other.
3.) Contrary to the right of a testator to revoke the will at any time.
4.) In case of a husband and wife, one might be tempted to kill the other.
5.) If the testators die at different times the probate would be other.