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Last Will and Testament of Michael Jackson

(Article published in the Jul  8, 2009 issue of Manila Standard Today) 

 My title is not accurate.  The document by which Michael Jackson apparently sought to control the disposition of his property effective upon his death is entitled only as “Last Will of Michael Joseph Jackson”, and not as his will and testament.  But the inaccuracy was intended; the point I want to convey in this piece is that in Michael Jackson’s will a Filipino will see a mixture of both the familiar and the unfamiliar.

 First, the word “Last” used to modify the document we find familiar. Almost always, “Last” is used in the Philippines to modify “will” in the title. The usual justification of its use is that the word “last” assists the lawyer in proving before the probate court that it is really the last.  But, actually, the description in the title of the will that it is the testator’s last does not make it so; the word “last” adds nothing to the instrument.  If a will that was executed at a later date turns up, that one, if it similarly revokes all former wills and codicils will be considered the last one, even if it did not have the modifier “last.”

 The omission of “and Testament” is, on the other hand, not familiar to us.  Commonly used Philippine form books uniformly use the phrase “Last Will and Testament”, a durable relic attesting to a practice that died with the age of the feudal lords of Euroope when  a will disposed of  testator’s land according to the law of the King and  a testament dealt with the distribution of his goods the local bishop.


The opening lines, “I, MICHAEL JOSEPH JACKSON, a resident of the State of California, declare this to be my last Will, and do hereby revoke all former wills and codicils made by me,” look familiar as they perform three usual functions.  They form part of what Dean of Notre Dame Law School Thomas L. Shaffer, in his book “The Planning and Drafting of Wills and Trusts”, calls the document’s “overture” as they identify the testator as well as the nature of document, and, in this case, perform the task of affirming it as the “last” by revoking all former wills and codicils made before it.

 We do not find in the opening lines, however, the usual preamble “In the name of God, Amen,” and the phrase “being of sound and disposing mind and memory.”  The absence of these standard phrases, in my view, are not, from the point of view of Philippine law, causes of concern.

 The omission of the invocation of God’s name has no legal significance; the phrase “In the name of God, Amen” is just as useless as “KNOW ALL MEN BY THESE PRESENTS” found in contracts.  And the assertion of sanity and testamentary intent, even if true, is at best self-serving.  Come probate time, the mental soundness of the testator at the time of executing the will must, notwithstanding the affirmation, still be proven positively if contested by an oppositor.

 Items I to III, however, make that task easy assuming that testamentary capacity under the law of California is the same as defined under Philippine law.  Article 799 of the Philippine civil code provides that to be considered of sound mind, it is sufficient “if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty and the character of the testamentary act.”

 “It is my intention by this Will,” says Michael in Item II, “to dispose of all property which I am entitled to dispose of by will,”  showing by that that he then knew what he was doing.  He named in Item I, after declaring himself as “not married” and reinforcing it with the statement that his marriage to Deborah Jean Rowe Jackson had been dissolved, his children, to wit, Prince Michael, Jr., Paris Michael Katherine, and Prince Michael Joseph II, thus indicating he was every aware of the objects of his bounty.  In fact, under Item VIII, Michael Jackson provides for his children’s care should they be minors, as they presently are, at the time of his death.  He said, “I nominate my mother, Katherine Jackson as guardian of the persons and estates of such minor children.”  And in default of his mother, he did not appoint his former wife, he named “Diana Ross as guardians of the persons and estate of such minor children.” 

 So strong is his desire to limit the distribution of his estate to those he named that Michael Jackson devoted a separate item to stress that except as provided elsewhere, he “intentionally omitted to provide for my heirs.  And, as we say, for the avoidance of doubt, he said, “I have intentionally omitted to provide for my former wife, Deborah Jean Rowe Jackson.” Finally, Item III left no doubts that he knew what he was disposing of; it was clear in that Item that he was giving his “entire estate”.

 The will does not have the usual direction to have debts paid.  But it is clear that Michael Jackson was aware some estate and inheritance taxes had to be paid. In Item IV, he directs that “all federal estate taxes and state inheritance or succession taxes payable upon or resulting from or by reason of my death (herein “Death Taxes”) attributable to property which is part of the trust estate of the Michael Jackson Family Trust…be paid by the Trustee of said trust in accordance with its terms.”  And with respect to taxes on property passing outside his will, other than those in the family trust, Michael Jackson wanted “charged against the taker of said property.”  Like in the Philippines therefore, the Jackson estate had to reckon with taxes before being distributed to the beneficiaries.