Notarial and Holographic Wills: How to Make a Last Will and Testament in the Philippines
Many find the preparation of a last will and testament an intimidating task, which would require a lot of time, effort, and resources. To the contrary, it is not nearly as complicated as most people believe it to be. With proper legal guidance, creating a last will and testament can ensure that the affairs and estate of the testator would be smoothly settled in the event of untimely or even expected death.
Article 783 of the Civil Code of the Philippines defines will 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.”
The making of a last will and testament cannot be delegated (in whole or in part) to the discretion of a third person, or accomplished through an agent or an attorney (see Civil Code, Article 784). While the execution of a last will and testament is a strictly personal act, a last will and testament lawyer may guide the testator (the person making the will) in preparing it in accordance with Philippine law.
The law provides for qualifications for a person to validly execute a will. It also requires that a specific form be followed in execution of the will. Non-compliance with the required form of last will and testament as prescribed by law may invalidate it or render it void. The law also provides for limitations on how the testator may decide to distribute his/her properties to his/her heirs.
Below is a basic guide in writing a last will and testament in accordance with Philippine law.
Testamentary Capacity and Intent
In addition to the form of the will, the law also requires the following:
1. The one who makes the will, or also called the testator, must not be prohibited by law to make a will;
2. The testator must be eighteen years of age or older; and
3. The testator must have a sound mind at the time of the execution of the will.
There are two types of will: notarial and holographic. Every will, regardless of type, must be in writing and executed in a language or dialect known to the testator.
A. Notarial Will
The following are the requisites for the execution of a notarial will:
1. The will must be subscribed at the end thereof by the testator personally or by the testator's name written by some other person in his/her presence, and by his/her express direction;
2. The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;
3. The testator or the person requested by him/her to write his/her 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;
4. All the pages shall be numbered correlatively in letters placed on the upper part of each page;
5. The attestation shall state the following:
a. the number of pages used upon which the will is written;
b. the fact that the testator signed the will and every page thereof, or caused some other person to write his/her name, under his/her express direction, in the presence of the instrumental witnesses; and
c. the fact that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another;
6. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them;
7. Every will must be acknowledged before a notary public by the testator and the witnesses;
8. If the testator be deaf, or a deaf-mute, he/she must personally read the will, if able to do so; otherwise, he/she shall designate two persons to read it and communicate to him/her, in some practicable manner, the contents thereof; and
9. If the testator is blind, the will shall be read to him/her twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.
It bears stressing that compliance as to form and substance are required for the will to be valid. Hence, it is a advisable to consult a lawyer to understand the requirements, processes, and limitations specific to the testator’s situation.
B. Holographic Will
A holographic will is one entirely written, dated, and signed by the hand of the testator.
1. The testator must personally know the language of the will;
2. The will must be entirely handwritten by the testator personally; and
3. The will must be dated.
It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
The law governing the form of a last will and testament depends on the nationality of the testator and country of execution of the will. In answering the question of how to write a last will and testament, it is essential that a Philippine last will and testament lawyer be consulted first to ensure the validity of the will and all its provisions.
Is Every Person Required to Have a Last Will and Testament?
To know more about the requirements and process of extrajudicial settlement of estate, you may refer to our article here: https://www.arceotandoc.com/single-post/the-process-of-extrajudicial-settlement-of-estate-in-the-philippines.
Importance and Benefits of a Last Will and Testament
Indeed, preparing a last will and testament requires some time and effort. It is undeniable, however, that even a simple last will and testament offers the following essential advantages or benefits:
1. A last will and testament eliminates or mitigates risks of potential family disputes;
2. For better organization, a will designates a person or family member who will manage the estate and execution the provisions of the same;
3. It protects minor children and/or other disadvantaged family members;
4. It allows the testator to disinherit a compulsory heir (i.e., spouse, children, parents), if he/she wants to;
5. It enables the testator to distribute a property to a person who is not a compulsory heir (i.e., a friend, relative who is not a compulsory heir or even a stranger);
6. It authorizes the testator to specify a condition upon which an heir may inherit a certain property or receive his/her share in the estate; and
7. The testator may easily amend any provision in the will or revoke it during his/her lifetime.
The foregoing are only the general processes and requirements for making a last will and testament. If you would like to know how to write a last will and testament, including the more specific provisions of law applicable to your situation, it is best to engage the assistance of a last will and testament attorney.
*Arceo & Tandoc Law Firm is a full-service Philippine law office that serves both local and foreign clients. Its family lawyers can advise you on how to prepare a last will and testament. Should you wish to learn how to make a last will and testament in the Philippines, you may contact us at firstname.lastname@example.org to get in touch with any of our last will and testament legal counsels.