Wills And Testaments

A Will is defined under Philippine law as an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Aside from this, the term may also refer to the document which embodies the decedent’s wishes pertaining to the disposition of his or her estate.

Not all individuals are allowed by law to execute their own will. Individuals lacking testamentary capacity such as minors and persons of unsound mind (provided that they did not execute the will during a lucid interval) are prohibited from making a will. To be of sound mind, a person need not be in full possession of all of his or her reasoning faculties; or that his or her mind be wholly unbroken, unimpaired or unshattered by disease, injury or other cause.

1. nature of the estate to be disposed of;
2. the proper objects of his bounty; and
3. the character of the testamentary act at the time of the execution of the will.

In any case, the law presumes that every person is of sound mind and the burden of proof against such rests on those who would oppose the probate of the will. This presumption, however, is controverted if the testator or testatrix was publicly known to be insane within one month or less prior to the making of the will.

Under Philippine law, there are two kinds of Wills: the Notarial will and the Holographic will. A Notarial Will is characterized by the numerous formalities mandated by law in order for such to gain legal efficacy. Particularly, Article 805 of the Civil Code requires that a Notarial Will be subscribed at the end thereof by the testator himself; or if the testator’s name be written by some other person, it must be in his presence, and by his express direction. It is likewise required that the will be 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 then sign each and every page thereof on the left margin except the last and all the pages shall be numbered correlatively in letters placed on the upper part of each page. Such a will must then be acknowledged before a Notary Public by the testator and his or her witnesses.

Failure to strictly follow the previous requirements will not automatically result in the invalidity of the will. The Civil Code, particularly Article 809, recognizes the doctrine of substantial compliance which grants validity to a will despite the presence of defects and imperfections in its form of attestation or in the language used therein; provided that there was no bad faith; forgery; or fraud; or undue and improper pressure and influence employed.

Other formal requirements contemplate situations where the testator or testatrix is suffering from a particular ailment or condition such as blindness, in which case, the will shall be read to him or her twice; once, by one of the subscribing witnesses, and then again by the notary public before whom the will is acknowledged. In the event that the testator or testatrix is deaf, or a deaf-mute, he or she must personally read the will, otherwise, he or she shall designate two persons to read it and communicate the contents thereof to him or her in some practicable manner.

In determining whether an individual is capable of being a witness to a Notarial Will, the law requires that such a person be of sound mind, of majority age, not blind, deaf or dumb, and must be able to read and write. Furthermore, the law absolutely disqualifies non-residents and those who have been convicted of falsification of a document, perjury or false testimony from being witnesses to a will.

In contrast to a Notarial will, a Holographic will is characterized by the relative ease and facility with which one may be executed. The Civil Code allows the execution of such as long as the same has been entirely written, dated, and signed by the hand of the testator or testatrix. It is subject to no other form, and may be made in or out of the Philippines and need not necessarily be witnessed. The purpose of the law behind such is to protect the wishes of the testator or testatrix from undue influence or fraud by allowing the same to conduct the execution of such a will in secret. Furthermore, unnecessary expenses and costs normally attributed in making Notarial wills may be avoided.

In either kind, the law requires that wills be in writing and executed in a language or dialect known to the testator.

A recent issue concerning the execution of either form of wills is the changes introduced by the E-Commerce Act. The provisions of the said Act give legal recognition to documents made in electronic form. As a consequence, the question of whether or not wills may be made electronically has emerged and caused much debate. Most legal commentators have already agreed that Notarial wills may be made electronically but not so in the case of Holographic wills. A case has yet to be decided that would squarely deal with this issue.