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This article was originally published on June 1, 2022 and has been updated to reflect recent legal developments.
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Under the Civil Code of the Philippines, there are two (2) kinds of Wills. The first one is referred to as Notarial Will. The second refers to a Holographic Will. Both wills must be in writing, and executed in a language or dialect known to the testator.
Article 806 of the Civil Code of the Philippines states that a notarial will is that which must be acknowledged before a notary public by the testator and the witnesses.
In a previous article entitled “What is a Will?”, it was discussed that a testator refers to a person who has executed a will and who has the authority to determine how his or her estate will be disposed of. In the case of Roel P. Gaspi v. Honorable Judge Maria Clarissa Pacis-Trinidad, G.R. No. 229010, November 23, 2020, wills may be notarial or holographic. In either case, the formalities required for their execution are more elaborate than most deeds relating to other transfers of property.
Let us first take a look at the first kind of Will – the Notarial Will.
What is a Notarial Will?
Article 806 of the Civil Code of the Philippines states that a notarial will is that which must be acknowledged before a notary public by the testator and the witnesses.
Furthermore, under Article 805 of the Civil Code of the Philippines, a notarial will must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Simply, as summarized by the Supreme Court in the case of the Heirs of Fedelina Sestoso Estella v. Jesus Marlo O. Estella, et.al, G.R. No. 245469, December 09, 2020, under Articles 805 and 806 of the Civil Code, the requirements for the validity of a will are as follows:
- Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses;
- Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another;
- The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses;
- The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another;
- All pages numbered correlatively in letters on the upper part of each page;
- Attestation clause, stating:
- The number of pages of the will;
- The fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses; and
- The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another; and
- Acknowledgement before a notary public.
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