Under the Civil Code of the Philippines, a will is a strictly personal act where a person (the testator) controls the disposition of their estate to take effect after death. Understanding the legal nuances between the two types of valid wills—Notarial and Holographic—is crucial to ensure your final wishes are not rendered void by the courts.
1. General Requirements for All Wills
Regardless of the form, certain "capacity" requirements must be met:
- Age: The testator must be at least 18 years old.
- Soundness of Mind: At the time of execution, the testator must know the nature of the estate to be disposed of, the proper objects of their bounty, and the character of the testamentary act.
- Animus Testandi: There must be a genuine intent to make a will.
- Freedom from Vitiated Consent: The will must be executed without duress, fear, threats, or undue influence.
2. The Notarial Will (Ordinary Will)
A notarial will is a formal document that requires strict adherence to legal solemnities. If any of these are missing, the will may be disallowed during probate.
Formal Requirements:
- In Writing: It must be written in a language or dialect known to the testator.
- Subscribed (Signed): The testator must sign at the end of the will. If they cannot sign, they may direct another person to sign their name in their presence.
- Attestation Clause: This is a crucial paragraph signed by witnesses stating that the testator signed the will in their presence and that they signed in the presence of the testator and each other.
- Marginal Signatures: The testator and the three witnesses must sign on the left margin of every page, except the last.
- Pagination: All pages must be numbered correlatively in letters (e.g., "Page One," "Page Two").
- Acknowledgment: The will must be acknowledged before a Notary Public by the testator and the witnesses.
The Three-Witness Rule:
A notarial will requires at least three credible witnesses. A witness cannot be a beneficiary (or the spouse/parent/child of a beneficiary) unless there are three other witnesses who are not beneficiaries.
3. The Holographic Will
A holographic will is a more private, less formal option. It does not require witnesses or a notary public, but it has very specific "handwriting" requirements.
Formal Requirements:
To be valid, a holographic will must be:
- Entirely written by the hand of the testator;
- Entirely dated by the hand of the testator; and
- Entirely signed by the hand of the testator.
Key Characteristics:
- No Witnesses Needed: The presence of witnesses is not required for its execution, though they may be needed during probate to identify the handwriting.
- Simplicity: It can be written on any piece of paper (a notebook, a letter, etc.).
- Risk of Alteration: If any insertions or erasures are made, the testator must sign next to the change for it to be valid.
4. Comparison at a Glance
| Feature | Notarial Will | Holographic Will |
|---|---|---|
| Form | Typed or printed | Entirely handwritten |
| Witnesses | At least 3 credible witnesses | Not required |
| Notarization | Required | Not required |
| Language | Must be known to testator | Must be known to testator |
| Ease of Challenge | Harder to challenge (due to witnesses) | Easier to challenge (forgery/handwriting) |
| Cost | Higher (notary and legal fees) | Low to none |
5. The Concept of Legitimes (Compulsory Heirs)
In the Philippines, you cannot "disinherit" your family entirely at your whim. The law protects Compulsory Heirs (legitimate children, spouses, and in some cases, parents).
- The Legitime: This is the portion of the estate reserved by law for compulsory heirs.
- The Free Portion: Only the portion remaining after the legitimes have been satisfied can be freely given to anyone else via a will.
Note: If a will preterits (omits) a compulsory heir in the direct line, it may result in the annulment of the institution of heirs.
6. Probate: The Final Step
No will passes property until it has been probated. Probate is a court proceeding where the judge verifies if the will followed all legal formalities and if the testator was of sound mind.
- Petition for Allowance: This can be filed while the testator is still alive (Ante-mortem probate) or after their death.
- Evidence: For holographic wills, at least one witness who knows the handwriting of the testator must testify. If contested, three witnesses may be required.
Would you like me to draft a sample template for a Holographic Will or explain the specific grounds for disinheriting a compulsory heir under Philippine law?