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Rubi, Pamela: The Proposal to Amend the Existing Law on Succession in the Philippines To Admit Alternative Forms in wills

27/09/2012
SY2009-2010 3rd Trimester
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Introduction:

As time passes by, changes are evident in almost every aspects of man’s life. A lot of these changes are brought by the advent of technology and various scientific advancements. In the computer age, a lot of existing events and processes are made obsolete due to the advent of science and technology.

The existing laws in the Philippines are not free from the effects of the ever-changing world. Considering all these, it is but necessary to revisit the existing laws in the country. To cope with the present times, a lot of our laws need amendments so as to align the current ways of doing things. Hence, this study aims to introduce the amendments of the current law in succession to admit alternative forms of wills.

The discussion of this study will focus on the existing laws governing the law on succession in the Philippines. Emphasis shall be made on the kinds or forms of wills which are considered valid under the New Civil Code.

Success stories on how things are done in foreign countries will be made available in order to afford better insights and comparison on the applicability and feasibility of electronic wills in the Philippines.

A proposal to include alternative forms or electronic wills shall be introduced. The advantages of having such forms shall be discussed including the scope and definitions as to what can be considered as electronic last will and testament. Convincing arguments will be presented to justify the necessity and the relevance of this proposal in the present time.

History of the Philippine Law on Succession:

The Civil Code is strongly influenced by the Spanish Civil Code, which was first enforced in 1889 within the Philippines, then a colony of Spain. The Spanish Civil Code remained in effect even during the American colonization of the Philippines. However, by 1940, the Commonwealth government of President Manuel Quezon had created a Commission to create a new Civil Code. However, the work of the Commission was interrupted by the Japanese invasion of the Philippines, and its records were destroyed during the Battle of Manila in 1945.

In 1947, President Manuel Roxas created a new Code Commission. The Commission completed the final draft of the new Civil Code by December 1947, and this was submitted to Congress, which enacted it into law through Republic Act No. 386. The Civil Code took effect in 1950.

The Law on Succession is one of the five (5) divisions of the New Civil Code. Despite the amendments made on this law, the influence of the Spanish Civil Code is still evident, for example, the law retains such concepts indigenous to Spain such as the rule on legitimes and reserve troncal.

The present code, however, has introduced several significant changes in the existing law prior to its enactment. Among such changes are:

Greater freedom is given to the testator in the choice of the form for his will and testament. While under the prior legislation, only attested wills were recognized, the new civil code permits also the execution of holographic wills, which are entirely written by the testator, without witness or attestation.

Greater facility in the probate of wills is provided by the introduction of the system of probate during the lifetime of the testator. Under the prior legislation, probate can be effected only after the death of the testator.

Forms of Wills in the New Civil Code:

Our present Code permits the execution of two kinds of wills: (1.) the ordinary or attested will, and (2) the holographic or handwritten will. Article 804 provides for the common requirements which apply both to the attested and holographic will. These are, the will must be in writing and executed in the language known to the testator. Our law does not recognize nuncupative wills, which is one that is not written but orally declared by the testator in his last illness, in contemplation of death, and before a sufficient number of competent witnesses.

In addition to the above requisites, our law also requires that ordinary will must comply with the following requirements:

It must be signed at the end thereof by the testator himself or by the testator’s name written by another person in his presence and by its express direction.

It must be attested and subscribed by three or more subscribing credible witnesses in the presence of one testator and of each other.

Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page.

Each and every page must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses, in the presence of each other, on the left margin.

It must contain an attestation clause.

It must be acknowledged before a notary public by the testator and by the witnesses.

The object of the solemnities surrounding the execution of the wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.

One of the most fundamental principles in the present law of succession is that the will of the testator, express in the forms required by law and exercised within the limits laid down by the law, must be recognized as the supreme law in the succession. This rule however, does not apply to their execution.

The legislature has the power to prescribe the formalities to be observed in the execution of a will, and by so doing does not interfere with the rights of an individual to dispose of his property; these technical mandates must be complied with, it is not a question of intention of the testator or attesting witnesses, but of the intention of the legislature.

Despite the intention the testator has in disposing off his properties after his death, when the same was not executed on the formalities prescribed by law, such intention cannot be given effect and that the will must not be allowed probate.

Although our law encourages and favors testamentary succession, the same shall not be achieved merely because the will lacks the necessary requisites of its due execution, notwithstanding the testamentary intent of the testator.

Relevant Foreign Legislation on Electronic and Non-conforming Wills:

The Nevada Statute:

Sensitive by the modern times and the changing world, the State of Nevada made its great step when in 2001 it included in its legislation the electronic wills as valid form of last will and testament.

The Nevada Statute provides the following:

NRS 133.040 Valid wills: Requirements of writing, subscription, witnesses and attestation. No will executed in this state, except such electronic wills or holographic wills as are mentioned in this chapter, is valid unless it is in writing and signed by the testator, or by an attending person at the testator’s express direction, and attested by at least two competent witnesses who subscribe their names to the will in the presence of the testator.

NRS 133.045 Disposition of certain tangible personal property by reference to list or statement; requirements: 1. Whether or not the provisions relating to electronic wills and holographic wills apply, a will may refer to a written statement or list, including, without limitation, a written statement or list contained in an electronic record, to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in a trade or business.

2. To be admissible as evidence of the intended disposition, the statement or list must contain:

a. The date of its execution.

b. A title indicating its purpose.

c. A reference to the will to which it relates.

d. A reasonably certain description of the items to be disposed of and the names of the devisees.

e. The testator’s handwritten signature or electronic signature.

3. The statement or list may be:

f. Referred to as a writing to be in existence at the time of the testator’s death.

g. Prepared before or after the execution of the will.

h. Altered by the testator after its preparation.

i. A writing which has no significance apart from its effect upon the dispositions made by the will.

NRS 133.050 Attesting witnesses may sign self-proving declarations or affidavits to be attached to will. 1. Any attesting witness to a will may sign a declaration under penalty of perjury or an affidavit before any person authorized to administer oaths in or out of the state, stating such facts as the witness would be required to testify to in court to prove the will. The declaration or affidavit must be written on the will or, if that is impracticable, on some paper attached thereto. The sworn statement of any witness so taken must be accepted by the court as if it had been taken before the court.

The Indiana Statute:

Indiana’s will statute does not accept electronic wills but allows videotapes to evidence the authenticity and proper execution of a will as well as the testator’s intent and mental capacity. It provides the following:

Indiana Code 29-1-5-3 (c) Subject to the applicable Indiana Rules of Trial Procedure, a videotape may be admissible as evidence of the following:

  1. The proper execution of a will.
  2. The intentions of a testator.
  3. The mental state or capacity of a testator.
  4. The authenticity of a will.
  5. Matters that are determined by a court to be relevant to the probate of a will.

Moreover, the statute also recognizes nuncupative wills. That is, it provides:

Nuncupative will; requisites; limitations:

(a) A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be

  1. Declared to be his will by the testator before two (2) disinterested witnesses;
  2. Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
  3. Submitted for probate within six (6) months after the death of the testator.

(b) The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand ($1,000) dollars, except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand ($10,000) dollars.

(c) A nuncupative will does not revoke an existing written will. Such written will is changed only to the extent necessary to give effect to the nuncupative will (Indiana Code 29-1-5-4)

Nuncupative will; revocation: A nuncupative will or any part thereof can be revoked by another nuncupative will. (Indiana Code 29-1-5-7)

The Feasibility of Introducing Electronic Wills in the Philippines:

The State of Nevada is the only jurisdiction in the United States with specific statute recognizing electronic wills. What its Legislators had done is an inspiring story to the other states and to the rest of the world to embrace the electronic technology and adopt similar legislation.

Considering that the Philippines had already enacted the Electronic Commerce Act of 2000 and the existing Rules of Court on Electronic Evidence, it is mature enough to adopt and recognize electronic wills in the country. As such, technology terms and their meanings are no longer new to us. It is not hard anymore to know such key and integral terms as Computer, Electronic Data Message, Electronic Signature, Electronic Document, among others. For example, Electronic Document, as defined in R.A. No. 8792, refers to information or representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact maybe proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved, or produced electronically. This is indeed a significant definition and can be made applicable as to what document may be classified as an electronic will.

The adoption of an electronic form of wills in our laws does not requires much changes considering that provisions in the rules of court as on electronic evidence can be made applicable. Testamentary capacity of the testator shall remain the same. As far as the authenticity of the will is concerned, technological means are now available in order to determine that the same is authentic. This move will also encourage the testator to make a will, thus, favoring testamentary succession. The testator will be given greater freedom on how his will shall be made, created and stored. This form also favors that indeed a will is the personal act of the testator.

Joseph Karl Grant, in his article on “Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of The Electronic Wills”, discussed two possible ways of adopting such laws for those states or countries who wish to recognize electronic and non-conforming wills. It could be done by adopting a separate statute for such purpose. If the country opt to make a separate statute for recognizing electronic will, the key and integral terms will be embodied in the same statute rather than just referring them to other laws. For example, Electronic Will may be defined as a disposition, made, created or stored by a competent testator, of his property to take effect after his death. Its purpose should be clearly stated including a legislative directive to the judiciary on how such forms shall be interpreted. The law should also clearly describe as to how the wills shall be created, stored, generated electronically. It should addressed the mechanism by which the testator can make an electronic will, for example, videotape, audiotape, computer-generated will with an electronic signature, etc.

A new will statute may also adopted by making linguistic changes to currently existing wills act. Following this way, it should be simply done by changing the terms of the current legislation. For example, Article 804. Every will must be in writing, created or stored and executed in a language or dialect known to the testator.

Conclusion

Several decades had past since John V. Atanasoff designed the first digital electronic computer in 1937. Several decades had past since the New Civil Code and the existing Laws on Succession became effective in 1950.

Since the vacuum tube days in 1939, to the World-wide web in 1991 and beyond, a lot of changes had taken place in our society and the world. However, the Philippines is still following the same Laws on Successions enacted in 1950. In this electronic and digital society that we are in today, it is but practical to adopt the changing technology and amend our laws to pattern the realities of the modern times.

Buying and selling of goods and services in the internet govern most of the business transactions nowadays. Paper less of doing things is the trend of today’s business. Contracts involving diverse products and services are made electronically. These transactions involve such properties and rights which are the same subject of succession. As such, it is but necessary that dispositions of such properties should be given effect when made electronically. It is therefore humbly proposed for the Philippine Laws on Succession to recognize Electronic Last Will and Testament.

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