All is fair in love and wills
In the early weeks of the Manila lockdown, popular historian Ambeth Ocampo made his will.
He was healthy and young, still in his 50s. But, like many who were fearful of the unknown, he wasn’t sure how much longer he’d be healthy. The pandemic gave him the chance for introspection, and to take stock of his own life — and also of his own mortality and his heirs’ inheritance. He did it out of love for his siblings. He organized all his documents so they wouldn’t have to tear their hair out searching through every drawer when that time comes.
Like in most parts of Asia, death remains a taboo subject in the Philippines. Families are usually tight-knit and live together. It is simply not discussed. “What is not openly discussed is therefore not openly planned,” says lawyer Edson Eufemio, whose experience in commercial law includes succession and estate planning.
Philippine inheritance laws, which were based on family-oriented Spanish civil laws, favor compulsory heirs (parents, spouses, children). The writing of wills is not a preoccupation amongst Filipinos. Perhaps they’re aware that the State will take care of their heirs eventually? Most Pinoys are married or have surviving compulsory heirs. The laws are too restrictive to allow a non-compulsory to get a lion’s share. So, why bother with a will?
Eufemio adds, though, that times are changing. More and more Filipino-Chinese in small and medium-sized enterprises are doing estate planning (the arranging of assets which will be managed and transferred to heirs in the event of death or incapacitation).
They plan not to avoid paying huge estate taxes (The Tax Reform for Acceleration and Inclusion Act of 2017, or TRAIN, only slaps six percent in estate taxes now, down from a high 20 percent). These days, the transfer of assets to the next generation is done ahead for the sake of family peace.
The first thing you must do is have an accounting of what you want to pass on. Gather all important documents like insurance policies, stock certificates, bank details. But the lawyer isn’t there to write the will for you. The content must come from you, the testator.
It was peace of mind for his loved ones that Fernando “Nandy” Villar intended when he started drafting his will in August last year. The former president-COO of McCann-Erickson, and head of Integrated Marketing at ABS-CBN, now a senior marketing officer in a top financial services company, wanted to be deliberate in distributing his assets should the inevitable suddenly happen. He wanted his loved ones to have a fair share, mindful of the restrictions posed by existing laws.
Villar is single, partnered, with no kids. He, along with his two siblings, takes care of his mother. After consulting with a lawyer, he wrote two sets of wills: one where he is survived by his mom; the other where he dies an orphan.
In the first scenario, Mom is the sole compulsory heir (siblings are not), and she gets most of his assets as required by law. The free portion, which is usually worth a quarter of the assets, will be distributed to whomever he pleases. Villar says: “My mom doesn’t need much at this point of her life. Everything’s provided for. I would like my partner and other non-direct heirs to benefit as well.”
The second scenario, where there are no compulsory heirs, would interest the unmarried and childless ones with no surviving parents. Villar has apportioned the disposition according to his wishes, to what he thinks is just and fair.
“I don’t want my partner, with whom I have no legal relationship, to get kicked out of our home when I go. I also want to help ensure a bright future for my nephews and nieces.” Without a will, the State would determine what goes to whom, usually the next of kin. Villar wants to be the sole decision-maker.
There have been times where the wills served as poetic adieus. The executor had no property to assign. The final note was a series of ‘Goodbyes’ and ‘I love yous.’ A plea for kindness, for everyone to get along.
In the case of Lynette Villaluz Ortiz, CEO of Standard Chartered Bank Philippines, the pandemic gave her ample time to revisit and refine the will she had written three years prior. “I wrote it at a time when I was traveling a lot. I’m a single parent, with two kids. Anything could’ve happened then. COVID struck. And when we had that hard lockdown where we weren’t allowed to leave our homes, I felt the urgency to put my affairs in order, and update my wish list. It was all part of spring cleaning.”
Through the years, things change. One may accumulate more. What was fair then may not be fair at this time.
Ortiz muses, “Time is finite. I’m not afraid to confront the issue of death. Besides, it’s myopic to think that the law will take care of everything. If you care enough, you’ll need a will that’s more specific and does not leave out those who may not be your direct heirs, people who matter to you.” She included her househelp who had been serving her family for the last 20 years in her amended will.
When writing a will for the first time, or making amendments to it, one must always consult with a lawyer who is familiar with laws of succession.
Eufemio’s advice: “The first thing you must do is have an accounting of what you want to pass on. Gather all important documents like insurance policies, stock certificates, bank details. But the lawyer isn’t there to write the will for you. The content must come from you, the testator.”
The lawyer checks the language and formalities of the will, which is either holographic (handwritten), or notarial (an electronic print-out witnessed by three non-direct heirs and a notary public). Either works as a legal document. It has to be clear, with no ambiguities that could be disputed by the heirs. Most importantly, the assigning of assets has to be valid and consistent with Philippine laws.
An executor must also be identified and notified when making a will. He or she must not be an heir. The executor’s role is to fulfill the testator’s wishes.
The failings of Ruth Wilcox in E.M. Forster’s Howards End comes to mind. On a piece of paper, Ruth bequeathed her precious country home to an acquaintance, Margaret Schlegel. After Ruth’s death, her family thought it was insane of her to give it to a relative stranger. They burned the piece of paper. Too bad for Margaret – Ruth didn’t name an executor.
Does one have to have lots of houses, cash or any valuable property to even think about writing a will? Do assets have to be of the material kind? Certainly not. Those who care about bequeathing things that are dear to them, otherwise rich in history or sentiment, can write their will for such. Those golf clubs. The English tea sets. The precious vinyl collection. Collectibles that have been preserved for years.
There have been times where the wills served as poetic adieus. The executor had no property to assign. The final note was a series of “Goodbyes” and “I love yous.” A plea for kindness, for everyone to get along.
They could also come with specific instructions on the kind of arrangements that must be done at the time of death: where, how, wardrobe, production design.
Ambeth’s note comes with a slide show of pictures to use during his wake. He told his nieces that he didn’t trust them to put up flattering pictures of him. Like some Filipinos, he is pragmatic enough to confront his mortality. He is in control of how he’d like to be remembered and how he wants to share his life’s blessings.