Tuesday, October 21, 2014

Joint wills prohibited by law

Dear PAO,
My wife and I are already of old age and in preparation for our eventual demise, we deem it proper to address this inevitable event by preparing our last will and testament. Because of this, my wife and I made our last will together detailing the manner of distribution of our property to our children. Our last will was made on one lengthy document incorporating both our wishes in the handling and distribution of our pieces of property. We both voluntarily signed and witnessed together. When we were about to have the document notarized, however, we were advised that we can’t have our last will together in the same document. I want to confirm if this is true and if there are any legal bases for this disallowance in executing a shared last will and testament. We appreciate your legal opinion to clarify this matter.
Dear Conor,
While you and your wife may prepare your last will and testament, it is important to know that the law provides for certain limitations and specifications in the manner of execution of such document. Based on your narration, the will that you and your wife prepared is considered to be a joint will. This kind of will is called a joint will since it contains the wills of more than one individual in one document. The Civil Code of the Philippines has this to say about the preparation of this kind of will:
“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.”
As seen from this cited law, there is a clear prohibition against the making of a joint will. Considering this prohibition, joint wills are void and therefore shall have no legal effect in the transfer of your estate to your designated successors.
As opined by the respected succession law expert Prof. Ruben Balane, and as supported by the Supreme Court case, Dacanay v. Florendo, 87 Phil. 324 (1950), joint wills are considered to be against public policy because they limit the mode of revocation of a will since one of the testators cannot destroy the will without also revoking the will of the other testator; they compromise the nature of secrecy of a will; they present danger of undue influence between testators; and there may be a danger of a testator tempted to kill the other testator (Ruben F. Balane, Jotting and Jurisprudence in Civil Law Succession, 2006).
The prohibition against joint wills is further emphasized in another provision of the Civil Code of the Philippines which states that a joint will executed by Filipinos even in a foreign country shall still not be valid in our country even if it is authorized by the laws of the foreign country where it was executed (Art. 819, Civil Code of the Philippines).
To reiterate simply, joint wills are prohibited by law. Thus, in order to ensure that the transfer of your estate can be legally allowed and executed in accordance with your plans, it will be in your and your wife’s best interest to prepare your own separate wills in observance of provisions of the law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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