NOTARIAL WILL VS. HOLOGRAPHIC WILL (Part II)

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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.

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AT A GLANCE:

Article 810 of the Civil Code of the Philippines provides that a person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

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The first kind of Will, the Notarial Will, has already been discussed in a previous article, entitled “Notarial Will v. Holographic Will (Part 1)”. As a continuation of that discussion, this article will briefly discuss the second kind of will, known as the Holographic Will. 

 

By way of recollection, wills, whether notarial or holographic, must be in writing and executed in a language or dialect known to the testator. 

 

What, then, distinguishes a holographic will from that of a notarial will?

 

In Teodoro Caneda v. Court of Appeals, G.R. No. 103554, May 28, 1993, the Supreme Court held that a holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. This requirement is codified under Article 810 of the Civil Code of the Philippines, which provides: 

 

Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

 

In essence, what distinguishes a holographic will is that it is entirely written by the testator. 

 

In Spouses Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, in a petition to admit a holographic will to probate, the only issues to be resolved are: 

 

1. Whether the instrument submitted is, indeed, the decedent’s last will and testament; 
2. Whether said will was executed in accordance with the formalities prescribed by law; 
3. Whether the decedent had the necessary testamentary capacity at the time the will was executed; and,
4. Whether the execution of the will and its signing were the voluntary acts of the decedents. 

 

The Court further emphasized that what assures authenticity, in holographic wills, is the requirement that they be totally autographic or handwritten by the testator himself. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. (Spouses Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994.)

 

Under Article 811 of the Civil Code of the Philippines, it is stated that in the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.

 

A reading of Article 813 of the Civil Code of the Philippines shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Specifically, Article 813 of the Civil Code of the Philippines provides:

 

Article 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

 

Article 814 of the Civil Code of the Philippines states:

 

Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

 

The Supreme Court in Spouses Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, citing the case of Kalaw v. Relova clarified that a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.  Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, the will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on the testator’s signature,  their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

 

Related Articles:

• WHAT IS A WILL?
• NOTARIAL WILL vs. HOLOGRAPHIC WILL (Part I)

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.

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