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”. As long as the requirements are substantially complied with, the notarial will shall be considered valid.
A legal will should contain what provisions?
A legal will in the Philippines should contain various provisions to ensure that your wishes are clearly stated and that your assets and properties are distributed according to your intentions. Here are the essential provisions that should be included in a valid will:
Introduction and Title: Start the will with an introduction that clearly identifies it as your Last Will and Testament.
Revocation Clause: Include a statement that revokes any previous wills or codicils you may have made. This ensures that your latest will is the one that takes effect.
Declaration of Soundness of Mind: Add a clause affirming that you are of sound mind and making the will willingly and without any undue influence.
Appointment of an Executor: Name an executor (also known as a "testamentary executor") who will be responsible for administering your estate and carrying out the provisions of the will.
Beneficiaries: Clearly identify the individuals or organizations who will inherit your assets and properties. Provide their full names and any relevant identifying information.
Specific Bequests: List specific items, properties, or amounts of money that you want to leave to specific beneficiaries.
Residuary Clause: Include a clause that covers any assets or properties not specifically mentioned in the will. This clause states who will receive the remaining assets after all specific bequests have been fulfilled.
Simultaneous Death Clause: Consider adding a clause that addresses the possibility of simultaneous death, stating the order of inheritance in case beneficiaries die at the same time or in uncertain circumstances.
Guardianship Clause (if applicable): If you have minor children, include a clause to appoint a legal guardian for them.
Funeral and Burial Instructions: You can provide instructions for your funeral arrangements and how you wish to be laid to rest.
Conditional Bequests: If you have certain conditions for beneficiaries to meet before receiving their inheritance, specify them clearly.
Disinheritance Clause: If you want to exclude a specific person who would normally be entitled to a share of your estate (e.g., a legal heir), you must expressly state this in the will.
Witness Clause: Include a clause stating that the will was signed in the presence of witnesses and that they signed as witnesses in your presence and in the presence of each other.
Signature: Sign the will at the end, and have it witnessed by at least three credible witnesses who are of legal age.
It's crucial to have a lawyer assist you in drafting the will to ensure that it adheres to the legal requirements in the Philippines and to address any specific concerns related to your estate.
Source: Ziggurat Real Estate Corp.
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