FORMS OF WILLS

CLASSIFICATION OF WILLS
- A will may be classified as either notarial (ordinary) or holographic depending upon the
the formalities or solemnities which are observed by the testator in its execution.
a.) Ordinary (Notarial) – one which is executed in accordance with the formalities
prescribed by Arts. 804 to 808. A written will, executed in a language or dialect
known to the testator, subscribed at the end thereof by the testator himself or by
the testator’s name written by some other person In his presence andby his express
direction, attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another, all of the pages of which are signed,
except the last, on the left margin by the testator or the person requested by him
to write his name and by the instrumental witnesses, and numbered correlatively In
letters placed on the upper part of each page, containing an attestation clause
executed by the witnesses, and properly acknowledged before a notary public by
the testator and the said witnesses.
b.) Holographic Will – a written will which must be entirely written, dated, and signed
by the hand of the testator himself, without the necessity of any witness.
OBJECT OF FORMALITIES
- To close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. --- any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator’s will must be disregarded.
ARTICLE 804. Every will (1.) must be in writing and (2) executed in a language or
dialect known to the testator.
COMMON FORMALITIES
- There are two formalities which must be complied with in the execution of wills,
whether ordinary or holographic as numbered above.
WRITTEN FORM OF WILLS
- Every will must be in writing (it doesn’t matter on what material). Whether the will is
ordinary or holographic, this requirement is mandatory. NOTE: If the will is
holographic, it is essential that it must be entirely written in the handwriting of the
testator himself.
- The law does not specify that the testator himself must perform the act of writing.
However, Art. 810 provides that in the case of holographic wills, the will must be
written entirely in the handwriting of the testator himself.
LANGUAGE OF WILLS
NOTE: There is no statutory requirement that the testator’s knowledge or
understanding of the language or dialect in which the will is executed should be
expressed either in the body of the will itself or in the attestation clause.
ARTICLE 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 shall 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 witnesses, // it shall be

interpreted to them.

SPECIAL FORMALITIES OF ORDINARY WILLS

1.) The will must be in writing
2.) The will must be written in a language or dialect known to the testator
3.) The 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
4.) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another
5.) The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign each and every page thereof, except the last, on
the left margin.
6.) All the pages of the will shall be numbered correlatively in letters placed on the upper
part of each page
7.) The will must contain an attestation clause
8.) The will must be acknowledged before a notary public by the testator and the witnesses.
SUBSCRIPTION BY TESTATOR
 - Subscription refers to the manual act of the testator and also of the instrumental
witnesses of affixing their signatures to the instrument. As applied to the testator, the
purpose of the statutory requirement of a signature is two-fold:
a.) To identify the testator
b.) To authenticate the documents
MANNER OF SIGNING
- It matters not how imperfect or illegible the testator’s signature may be; it will be a
sufficient signature if he intended it as his signature, and it should be manifest that
whatever he used as his signature was intended for that purpose. The fact that the
testator’s signature is imperfect or illegible does not invalidate the will if his name can
be made out readily and he intended such name to be his signature
- “if the testatrix signed any portion of her name to the will, with the intention to sign the same, that
will amount to a signature. It has been held time and time again that one who makes a will may sign
the same by using a mark, the name having been written by others.” Yap Tua v. Yap CA Kuan
SIGNATURE BY MARK
- Any mark or combination of marks placed on a will by the testator as his signature is a
sufficients compliance with a statute requiring a will to be subscribed by the testator.
- “The construction put upon the word signed by most courts is the original meaning of
signum or sign, rather than the derivative meaning of a handwriting” De Gala v.
Gonzales. However, if the signature is only a mere cross, without any proof that it is
the usual signature of the testator or at least one of the ways by which he signed his
name, it is not a sufficient signature, because a mere cross cannot and does not have
the trustworthiness of a thumbmark.
SIGNATURE BY ANOTHER
- This fact, among others, should be stated in the attestation clause. In the first place,
it must be observed that it is the testator’s name that must have been written by the
third person. In the second place, it must be observed that the law requires that the
testator’s name must have been written in his presence. In the third place, the law
requires that the third person must have affixed the testator’s name at his express
direction – the testator shall, by word of mouth or action clearly indicate to the proxy
a desire to have his name signed to the instrument, although in the absence of a specific
requirement, any manner of signifying such desire will suffice.
PLACE OF SIGNATURE
- The law fixes the location of the signature and requires that it must be at the foot or
end of the will. The position of the signature at the end of the will furnishes itself
internal evidence of finality or completion of intent.
PRESENCE OF WITNESSES
- Although it is not expressly stated in the first paragraph of Art. 805, it is also required
that the subscription of an ordinary will by the testator should take place in the presence
of the instrumental witnesses. “shall state, among other, the fact that the testator signed
xxx in the presence”
ATTESTATION AND SUBSCRIPTION BY WITNESSES
- An instrumental witness may be defined as one who takes part in the execution of an
instrument or writing.
Attestation – consists in the act of the witnesses of witnessing the execution of the
will in order tosee and take note mentally that such will has been executed in
accordance with the requirements prescribed by law.
It is the act of the witness not that of the testator.
Its purpose – to render available proof during the probate proceedings that the will
has been executed in accordance with the requirements prescribed by law and that the
instrument offered for probate is authentic.
Subscription – The manual act of the instrumental witnesses in affixing their
signatures to the instrument.
a.) Attestation is an act of the senses, while subscription is an act of the hand
b.) The first is a mental act, while the second is a mechanical act
c.) The purpose of the first is to render available proof during the probate of the will,
not only of the authenticity of the will, but also of its due execution, while the only
purpose of the second is identification.
ORDER OF SIGNING
- The majority opinion which is followed in most of the states holds that where the
execution of the will by the testator and the signing of the same by the subscribing
witnesses constitute one continuous transaction, the signing by each, taking place in
the presence of the others, is sufficient and is to all intents and purposes and attestation
by the subscribing witnesses to a fact which has already taken place.
- Where the execution of the will by the testator and the signing of the same by
the subscribing witnesses constitute one continuous transaction, the signing by
each, taking place in the presence of the others, is sufficient as is to all intents
and purposes an attestation by the subscribing witnesses to a fact which has
already taken place.
MEANING OF PRESENCE
- The purpose of such a requirement is evidently to prevent the substitution of a
surreptitious will.
 - It is essential that each of one of the three instrumental witnesses must actually sign
not only in the presence of the testator, but also in the presence of the other witnesses.
The execution of a will is supposed to be a single act or transaction and cannot be
legally effective if the various participants signed on various days or occasions and in
various combinations of those present.
Riggs v. Riggs
TEST OF PRESENCE
Jaboneta v. Gustilo
- “the fact that he was in the act of leaving, and that his back was turned, while a portion
of the name of the witnesses was being written is of no importance. Xxx he was actually
and physically present and in such position with relation to Javellana that he could see
everything which took place”
Nera v. Rimando
MARGINAL SIGNATURES
- This requirement is mandatory. As a matter of fact, as an additional safeguard, the law
also provides that the attestation clause shall state the fact. If even of the pages of the
will does not contain the required marginal signature or the pages are not signed by the
witnesses although they are signed by the witnesses, the will which is offered for
probate shall be disallowed.
EXCEPTIONS Such requirement is not necessary
a.) In the last page, when the will consists of two or more pages
b.) When the will consists of only one page
c.) When the will consists of two pages, the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and the
witnesses and the second contains only the attestation clause duly signed at
the bottom by the witnesses.
LOCATION OF SIGNATURES
- According to the weight of authority, this requirement regarding the location of the
marginal signatures is not mandatory in character, provided of course, that such
signatures are present in every page of the will, except the last.
- So far as concerns the authentication of the will and of every part thereof it can make
no possible difference whether the names appear on the left or on the right margin
provided they are on one or the other.
NUMBERING OF PAGES
 - The principal object of this requirement is to forestall any attempt to suppress or
substitute any of the pages of the will. According to the weight of authority, substantial
compliance with the statutory requirement is sufficient.
ATTESTATION CLAUSE
- There must be an attestation clause and that it must express the material
matters mentioned in the law with substantial accuracy.
- The attestation clause is a memorandum or record of facts wherein the witnesses certify
that the instrument has been executed before them, and that it has been executed in
accordance with the formalities prescribed by law. It is made for the purpose of
preserving in permanent form, a record of the facts attending the execution of a
will, so that in case of failure of the memory of the instrumental witnesses or in case
such witnesses are no lnger available, such facts may still be proved.
NOTE: Where the attestation clause is written on a separate page and not on the last
page in direct continuation of the body of the will, although there might still be a space
at the bottom thereof not big enough to contain the whole clause, the defect, if it can
be considered a defect, is a matter of minor importance and will not invalidate the will.
CONTENTS
Three essential facts
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 name, under his express direction, in the
presence of the instrumental witnesses
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.
EFFECTS OFDEFECTS OR IMPERFECTIONS
NOTE: If the defect of the attestation clause goes into the very essence of the
clause itself or consists in the omission of one, some or all of the essential facts
which, according to the law, must be stated in such clause, and such omission
cannot be cured by an examination of the will itself, the defect is substantial in
character, as a consequence of which the will is invalidated.
LANGUAGE OF ATTESTATION

Article 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will,
or file another with the office of the Clerk of Court.(n)

NOTARIAL ACKNOWLEDGMENT
Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if
able to do so; otherwise, he shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof. (n)

Article 808. If the testator is blind, the will shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the notary public before whom the will is
acknowledged. (n)

Article 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 proved that the will was
in fact executed and attested in substantial compliance with all the requirements of
article 805. (n)

DOCTRINE OF LIBERAL INTERPRETATION

- It must be observes that the doctrine of liberal interpretation, as enunciated in Art. 809,
can only be applied to defects or imperfections either in the form of the attestation or
in the language used therein. It cannotbe applied to defects which are substantial, such
as when there is an absolute omission in the attestation clause of one, or some, or all
these essential facts, which, according to the law, must be stated in such clause, and
such an omission cannot be cured by an examination of the entire will itself. It is
evident that such n omission cannot be classified as a defect or imperfection in the
form of the attestation or in the languages used therein.
LIMITATION
Cuevas v. Achacoso
Dichoso v. Gorostiza
Merza v. Porras