CIRCULAR NO. 20/97-LAST WILL TESTAMENT TO ALL DIOCESAN PRIEST OF THE ARCHDIOCESE OF CEBU

November 25, 1997

Dear Monsignor/Father:

We have observed that most wills and Testaments submitted to us have not named any person as the executor thereof. An executer is the person named in the will to administer the state of the decedent and to carry out the provisions thereof. When no person is named in the will as the executor thereof, the court will appoint a person to administer the estate and this person is called the Administrator. Consequently, a question may be asked: ” Why is there a need to name an executor of the will?” From the legal viewpoint, a costly and cumbersome legal battle as to the issue of who is the right person to administer the estate can be practically avoided.

For you to be able to determine whether or not the Last will and Testament that you have submitted to the diocese is valid we have outlined here the two kinds of will and their corresponding legal requirements. They are: The Notarial will and the Holographic Will.

THE FORMAL REQUISITES OF A NOTARIAL WILL:

It must be: (1) in WRITING; (2) in a language known to the TESTATOR; (3) SUBSCRIBED  at the end by the TESTATOR HIMSELF; (4) ATTESTED AND SUBSCRIBED  by the three or more credible witnesses in the presence of the TESTATOR and of ONE ANOTHER; (5) the testator and the instrumental witnesses must sign EACH and EVERY PAGE of the will on the left margin, except the last page; (6) all pages must be NUMBERED CORRELATIVELY IN LETTERS placed on the upper part of each page; (7) the Attestation Clause shall state: (a) the number of pages used, (b) that the testator signed the will and every page thereof in the presence of the instrumental witnesses, and (c) that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another; and (d) Acknowledgment before the Notary Public by the testator and the witnesses.

THE FORMALITIES OF A HOLOGRAPHIC WILL:

It must be: (1) ENTIRELY WRITTEN, DATED, AND SIGNED by the HAND fo the testator himself. In this holographic will, no witnesses are needed; no marginal signature required; no acknowledgment before the Notary Public is necessary.

If your will is valid, but fails to reflect or namethe executor thereof, then you can either rewrite your will or submit a council. A codicil is a supplement or adition to the will, made after the execution of the will and annexed as a part thereof, by which any disposition in the will is explained, added to, or altered. To be effective, the codicil has to be executed with the formalition of a will, as elaborated above. Please take not that an invalid will cannot become valid by the execution of a codicil.

After the making of the will, what comes next?

The law provides that ”No will shall pass either real or personal estate unless it is proved and allowed in the proper court”.

In other words, the will has to be probated in order that your legatees, devisees, or compulsory heirs may inherit from youby virtue of the will. The probate may be done in your lifetime or after your death. And which of the two procedures is more convenient and less cumbersome for the testator’s heirs, legatees or devisees?

We submit that it is less cumbersome for your heirs, etc. to have your will probated during your lifetime. Besides there is no need for publication and only notice to your compulsory heirs is required.

IN VIEW OF THE FOREGOING, we request you to re-examine your will to see if it conforms to the foregoing legal requisitions, and to name an executor thereof  if none has been named, in accordance with the above discussion, and lastly, if you wish or desire, to have your will probated during your lifetime.

Should you have any further queries, please contact any of the Legal Counsel of the Archdiocese of Cebu.

Please see attached samples for easy reference.

Sincerely yours,

RICARDO J. CARDINAL VIDAL

Archbishop of Cebu

By Mandate of the Archbishop:

REV. FR. MARVIN S. MEJIA

Vice Chancellor