TESTAMENTARY CAPACITY AND INTENT

Who can make a will?

All persons who are not expressly prohibited by law may make a will. (Art. 796) The law presumes capacity to make a will; hence, in order that a person may be disqualified to make one, he must be expressly prohibited by law.

Note: The ability as well as the power to make a will must be present at the time of the execution of the will. Supervening incapacity does not invalidate an effective will, nor is the will by an incapable person validated by the supervening of capacity. (Art. 801)

What are the requisites of testamentary capacity?

1. At least 18 years of age; and

2. Of sound mind

Note: It is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the:

     a. nature of the estate to be disposed of;

     b. proper objects of his bounty; and

     c. character of the testamentary act.

Who are those persons expressly prohibited by law to make a will?

1. Persons of either sex under 18 years of age (Art. 797)

2. Persons who are not of sound mind (Art. 798)

Is a person suffering from civil interdiction qualified to make a will?

Yes. He is deprived only of the power to dispose of his properties through acts inter vivos but not through acts mortis causa. (Art. 34, Revised Penal Code; Rabuya, Civil Law Reviewer, p. 527)