Governing Law and Types of Last Will and Testament
Under Article 783 of Republic Act No. 386, or otherwise known as the Civil Code of the Philippines (“Civil Code”), a will has been defined as an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.
Under the Civil Code, there are two kinds of wills which a testator may execute – the holographic will and the attested/ordinary/notarial will.
Article 810 of the Civil Code defines a holographic will as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses.
The Notarial Will
On the other hand, notarial will is the kind of will which requires an attestation clause, an acknowledgement before a notary public. The execution of an ordinary or attested or notarial will is governed by the Civil Code, to wit:
“Art. 805. Every will, other than a holographic 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 should 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 witness, it shall be interpreted to them.” (Emphases and underscoring supplied.)
Personal Appearance before Notary Public Required
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness. Where the testator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged.
When Mistakes will be Allowed
With the foregoing requirements, there is what we call substantial compliance rule, and this rule is contemplated in the pertinent provision of the Civil Code, to wit:
“Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805” (Emphases and underscoring supplied.) As long as the requirements are substantially complied with, the notarial will shall be considered valid.
About Nicolas and De Vega Law Offices
If you have questions on succession, estate planning, preparation or drafting of wills, settlement of estate, or others areas of Family Law, we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website www.ndvlaw.com.