Part Ⅴ Succession
CHAPTER III WILLS
Section 1 - GENERAL PROVISIONS
A person without disposing capacity may not make a will.
A person limited in disposing capacity may make a will without first obtaining the approval of his statutory agent. But a person who has not completed his sixteen years of age may not make a will.
A testator may freely dispose of his property by a will so far as it does not contravene the provisions in regard to compulsory portions.
The provisions of Article 1145 concerning the forfeiture of the right to inheritance apply to legatees mutatis mutandis.
Section 2 FORMALITIES
A will shall be made in one of the following forms:
(1) A holograph will;
(2) A notarized will;
(3) A sealed will;
(4) A "dictated" will;
(5) An oral will.
For making a holograph will, the testator must himself write the whole text, stating the year, month and day and sign it. In case of any insertion, cancellation, erasure or alteration, he must make and sign an additional note stating the place in the text where words have been inserted, erased or altered, and the number of such words.
For making a notarized will, the testator must designate at least two witnesses and make an oral statement of his testamentary wishes before a public notary. The statement must be written down, read over and explained by the public notary, and, after the testator has given approval, signed by him together with the witnesses and the testator, stating the year, month and day. In case the testator is not able to sign his name, the public notary must state the circumstances and make him affix his fingerprint in lieu of signature.
The functions of a public notary as provided in the preceding Paragraph may be exercised by a court clerk in a place where there is no public notary, or by a Chinese consul when a overseas Chinese makes a will in the place where such consul resides.
For making a sealed will, the testator must, after signing it, have it securely enveloped, affix a signature across the seam of the envelope, designate at least two witnesses, and declare before a public notary that it is his will, and, if not written by himself, also declare the name and domicile of its draftsman; the public notary must state on the envelope the date on which the will is brought and the declaration of the testator, and sign together with the testator and the witnesses.
The provisions of Paragraph 2 of the preceding Article apply mutatis mutandis to the situation provided in the preceding Paragraph.
A sealed will which may be defective as regards the formalities provided in the preceding Article but is otherwise in compliance with the formalities of a holograph will provided in Article 1190 has the effect of a holograph will.
For making a "dictated" will, the testator must designate at least three witnesses, make an oral statement of his testamentary wishes, have it written down. read over and explained by one of the witnesses; after the testator has given his approval, the statement bearing the year, month and day, and the name of the draftsman, must be signed by all the witnesses and the testator together. Where the testator is not able to sign his name, he must affix his fingerprint in lieu of signature.
Where a testator by reason of imminent danger of death or other exceptional circumstances is unable to make a will in any other form, he may make it orally in one of the following forms:
(1) For making an oral will, the testator must designate two or more witnesses, state orally his testamentary wishes; one of the witnesses must set down these wishes correctly in writing, state the year, month and day, and sign together with the witnesses.
(2) The testator must designate two or more witnesses, state orally his testamentary wishes, his name, the year, month and day; all the witnesses must make an oral statement as to the genuineness of such will and their names, have it and the oral will of the testator all tape recorded, make the recording tape securely enveloped on the spot, bear the year, month and day on the envelop, and affix the signatures of all the witnesses across the seam of the envelop.
In case, the testator is able to make a will in another way, an oral will shall be invalid after three months accordingly.
An oral will must be brought up by one of the witnesses or an interested person, within three months after the death of the testator, for decision by the family council as to its genuineness. Where objections arise regarding the decision of the family council, application may be made to the court for a judgment.
The following persons may not act as witness of will:
(1) A minor;
(2) A person who is subject to the order of the commencement of guardianship or assistantship;
(3) An heir, his spouse or his lineal relatives by blood;
(4) A legatee, his spouse or his lineal relatives by blood;
(5) Persons who are assistants to, or employed by, or living together with, the public notary or the person that exercises the functions of a public notary.
Section 3 - EFFECTS
A will takes effect from the time of the death of the testator.
When a legacy provided in a will is subject to a condition precedent, it takes effect from the time when such condition is fulfilled.
If the legatee dies before the will becomes effective, the legacy does not take effect.
If certain property is made the subject of legacy by the testator and, at the time of the opening of the succession, part of the property does not belong to the property of the deceased, such part of the legacy is invalid. If the whole property does not belong to the property of the deceased, the whole legacy is invalid. If however, a special intention is expressed in the will, such intention is to be followed.
Where the testator has acquired a right against a third person on account of the lose, destruction, damage or artificial alteration of the substance which forms the subject of the legacy, or the loss of its possession, such right is presumed to have been made the subject of the legacy. The same applies where, because the substance that forms the subject of a legacy is joined to or mixed with another thing, the testator has acquired a right over the composite or mixed thing.
Where the right to use and to collect fruits from the property of the deceased is made the subject of a legacy, and the time limit for the restitution [of such property] is not provided in the will nor can it be determined by the nature of the legacy, the time limit is the lifetime of the legatee.
Where the legacy is burdened with an obligation, the legatee is responsible for the performance only to the extent of the benefit received from the legacy.
A legatee may waive a legacy after the death of the testator.
The waiver of a legacy takes effect retroactively as from the time of the death of the testator.
An heir or other interested person may fix a reasonable period of time and call upon the legatee to declare within such period whether or not he accepts the legacy. If no declaration has yet taken place upon the expiration of the period, the legacy is legally deemed to have been accepted.
Where a legacy is invalid or waived, the property of the legacy remains part of the property of the deceased.
Section 4 EXECUTION
A testator may by will designate an executor or entrust a third person to do so.
A person so entrusted must, without delay, designate an executor and notify the heir thereof.
A minor or a person who is subject to the order of the commencement of guardianship or assistantship may not act as executor of a will.
Where a will has not designated an executor or entrusted another person to make the designation, the family council may elect an executor. Where cannot be elected by the family council has failed to elect an executor, an interested party may apply to the court to designate one.
An executor of a will is entitle to equitable remuneration for his or her performance of duty, the amount of which shall be determined by agreement between the heir(s) and the executor, unless the testator instructs otherwise. The court shall determine the amount of remuneration when the parties fail to reach an agreement.
The custodian of a will must, as soon as he has knowledge of the opening of the succession, shall deliver the will to the will executor; and use proper method to inform those known heirs. For those who have no will executors shall inform known heirs, debtors, legatees, and any other interested persons. The same applies in case an heir discovers the will of which there is no custodian.
A sealed will may not be opened unless in the presence of the family council or the office of public notary in the Court.
Upon opening of the will pursuant to the preceding Subparagraph, record for whether or not the sealed will is damaged or whether or-not there iss any particular matter shall be made and signed by persons present.
After an executor comes into office, if it is necessary to draw up an inventory of the property related to the will, he must without delay draw up such an inventory and deliver it to the heir.
An executor is under an obligation to manage the property of the deceased and to do all acts necessary for the execution of his duty.
The executor is deemed to be the agent of the heir in regard to acts done by him in the course of performing his duty as provided in the preceding Paragraph.
While an executor is executing his duty, an heir may not dispose of any property related to the will, or obstruct the executor in the execution of his duty.
Where there are several executors, their duties are performed in accordance with a majority vote; but if a special intention is declared in the will, such intention has to be followed.
If an executor neglects his duty, or if there be other grave causes, an interested person may apply to the family council for the election of another executor. If the executor in question was designated by a court, an application may be made to the court for the designation of another.
Section 5 WITHDRAWAL
A testator may at any time withdraw the whole or a part of his will in one of the forms prescribed for making a will.
If a will of an earlier date and a will of a later date conflict, the former is deemed to have been withdrawn as regards the conflicting parts.
Where acts done by the testator after having made a will conflict with such will, the will is deemed to have been withdrew as regards the conflicting parts.
Where the testator has intentionally destroyed or Repealed a will, or stated in the will his intention of annulling it, the will is deemed to have been withdrew.
Section 6 COMPULSORY PORTIONS
The compulsory portion of an heir is determined as follows:
(1) For a lineal descendant by blood, the compulsory portion is one half of his entitled portion;
(2) For a parent, the compulsory portion is one half of his entitled portion;
(3) For a spouse, the compulsory portion is one half of his entitled portion;
(4) For a brother or a sister, the compulsory portion is one-third of his or her entitled portion;
(5) For a grandparent, the compulsory portion is one-third of his entitled portion.
A compulsory portion is determined by deducting the amount of debts from the property of the succession as reckoned according to Article 1173.
A person entitled to a compulsory portion may have the amount of the deficit deducted from the property of a legacy, if the amount of his compulsory portion becomes deficient on account of the legacy made by the testator. If there are several legatees, deductions must be made in proportion to the value of the legacies they severally receive.