Can We Execute a Joint Will?

When planning for the future, many couples naturally consider the idea of simplifying things—including their wills. One common question that arises is: “Can we execute a joint will?” The short answer is: it depends on your country’s laws, but in most places, joint wills are possible but generally discouraged. Let’s explore why.

What Is a Joint Will?

A joint will is a single legal document created by two or more people, typically spouses or partners, outlining how their assets will be distributed after both of them pass away. It usually states that when one person dies, the surviving partner inherits everything, and when the second person passes, the assets go to the designated beneficiaries (like children or relatives).

Are Joint Wills Legal?

In many countries, including the Philippines, the United States, and the UK, joint wills are generally discouraged and sometimes even considered invalid, depending on how they're structured. Instead, what is more commonly allowed is a mutual will or mirror wills, where each partner creates a separate will with identical terms.

For example:

• Philippines: Joint wills are not valid under Philippine law. Article 818 of the Civil Code specifically prohibits joint wills, even if executed abroad by Filipinos.

• United States: Some states allow joint wills but courts often discourage them due to potential complications.

• United Kingdom: Joint wills are technically allowed but rarely used in modern practice due to legal and practical downsides.

  
  

Why Are Joint Wills Discouraged?

Lack of Flexibility

Once one partner dies, a joint will usually cannot be changed—even if circumstances change, like remarriage, estrangement from beneficiaries, or new grandchildren.

Legal Complications

If poorly drafted, joint wills can lead to court battles, misunderstandings, and disputes among surviving family members.

Better Alternatives Exist

Most estate lawyers recommend creating mirror wills or mutual wills, which are separate documents but can reflect the same intentions. These are more flexible, legally sound, and easier to amend if needed.

What’s the Best Option?

• Mirror Wills: Each partner creates a separate will leaving everything to the other, then to agreed beneficiaries.

• Mutual Wills (with contract): Legally binding wills that cannot be changed after one partner dies, but with clearer enforceability than joint wills.

• Living Trusts: In some cases, a trust may offer more flexibility and privacy for asset distribution.

  
  

Final Thoughts

While the idea of a joint will sounds simple and romantic—“one will for both of us”—the reality is that it can lead to more problems than solutions. In most jurisdictions, joint wills are either invalid, problematic, or outdated in modern estate planning.

💡 Tip: Always consult with a qualified estate lawyer familiar with the laws of your country or region. They can help you create a legally sound and flexible estate plan that honors your wishes without unnecessary risks.

Source: Ziggurat Real Estate

Oral partition of property is valid

Article 1079 of the New Civil Code of the Philippines provides for the meaning of partition, which states that:

"Art. 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value."

"Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition. Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed." (Spouses Marcos v. Heirs of Bangi, GR 185745, Oct. 15, 2014, penned by Associate Justice Bienvenido Reyes)

In the case of Espinas-Lanuza v. Luna, Jr., GR 229775, March 11, 2019, penned by Associate Justice Jose Reyes Jr., it is stated that:

"An oral partition by the heirs is valid if no creditors are affected. Even the requirement of a written memorandum under the statute of frauds does not apply considering that such a transaction is not a conveyance of property resulting in change of ownership but merely a designation and segregation of that part which belongs to each heir."

Citing an earlier case, the high court explained in Espinas-Lanuza v. Luna that:

"On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed.

"Regardless of whether a parol* partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder.

Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty."

In many families, the issue of property inheritance often causes confusion and conflict, especially when the division of property is not formalized through a written agreement.

For an oral partition to be valid, it must be made with the consent of all the heirs. The oral partition is considered valid if the heirs have already taken possession of their respective shares in the property. If the heirs physically possess their designated portions, this can serve as proof of their agreement to the oral partition.

*Parol partitions are oral agreements between co-tenants to informally partition land.

Source: Manila Times

Concept of "Legitime" in Philippine Law

Legitime refers to the portion of a deceased person’s estate that is reserved by law for compulsory heirs and cannot be freely disposed of by the decedent through a will. It is a mechanism to protect the rights of certain heirs, ensuring they receive a minimum share of the inheritance.

Law Governing Legitime

Legitime is primarily governed by the Civil Code of the Philippines, particularly Articles 886 to 914 under Title IV (Succession), Chapter 3 (Provisions Common to Testamentary and Legal Succession), and Section 5 (Legitime).

Who Are the Compulsory Heirs?

According to Article 887 of the Civil Code, the following are considered compulsory heirs:

1. Legitimate children and descendants (e.g., grandchildren, if their parent predeceased the decedent)

2. Legitimate parents and ascendants (if the decedent has no children)

3. The surviving spouse

4. Illegitimate children (who have a right to a legitime but receive a reduced share compared to legitimate children)

How Legitime Is Applied

The legitime is a fixed portion of the estate that the decedent cannot freely dispose of. The remaining estate is called the free portion, which the testator may distribute according to his will.

1. If the decedent has legitimate children:

• The legitime of legitimate children is 1/2 of the total estate, to be divided equally among them.

• The surviving spouse gets 1/4 of the total estate (equivalent to the share of one legitimate child).

• Illegitimate children get 1/2 of the share of a legitimate child each.

2. If the decedent has no children but has surviving parents or ascendants:

• The legitime of parents (or ascendants) is 1/2 of the total estate.

• The surviving spouse gets 1/2 of the total estate.

3. If the decedent has only a surviving spouse:

• The legitime of the spouse is 1/2 of the total estate.

4. If the decedent has only illegitimate children:

• The illegitimate children receive 1/2 of the total estate, divided among them.

• The surviving spouse gets 1/2 of the total estate.

Restrictions on Disposition of Property

A testator cannot will away the legitime of compulsory heirs, either through donations or by testamentary disposition. If a will reduces the legitime, the heirs can seek a reduction of the will’s provisions to comply with the mandatory legitime rules.

Disinheritance and Legitime

A compulsory heir may be disinherited, but only under specific grounds stated in the Civil Code (Articles 915–923), such as attempted murder against the testator, maltreatment, or refusal to provide support. If a compulsory heir is validly disinherited, his legitime goes to the other compulsory heirs.

Source: Ziggurat Real Estate