The law is very strict with respect to compliance
Every will must be
by the testator of the formalities of the wills.
Formal requirements of a will:
1. For notarial will
a. It must be written in a language
or dialect that is known to the
testator.
b. It must be subscribed by the
testator at the last page or end of
the will.
c. It must also be attested and
subscribed by at least 3 credible
witnesses. The more witnesses
there is, the better the will.
The witnesses must sign also the attestation and
the subscription at the end in the presence of the
testator and of one another.
d. The testator and the witnesses
must sign on the face of each
and every page of the will. The
law says, they will sign at the
left margin.
e. It must be paginated. The law
says that the paging must be
made at the right upper hand of
the will of each and every page.
f. The attestation must recite the 1.
number of pages of the will
including the page in which the
subscription and attestation by
the testator is intend; 2. That the
testator signed each and every
page of the will including the
last one in the presence of the
witnesses and likewise the
witnesses signed in the presence
of the testator and each and
every witnesses.
If the attestation is in a language not known to a
testator, it should be interpreted or explained to
the testator.
g.
acknowledged before a notary
public.
The testator has the privilege to make secret his
last will and testament. That is why the notary
public is not required to submit such will to the
clerk of court.
h. When the testator is deaf, or
deaf mute, he must read
personally the will. If he does
not want to read personally the
will, he must designate two
persons who will read it for him
and to communicate to him.
In case the testator is blind, the
will shall be read to him twice.
Minsan, it will read to him by
the one of the witnesses to the
will and the notary public before
whom it is acknowledge.
Bar favorite: Formal requirement on signing the
will.
For example,
Situation Number 1. The testator is X and the
witnesses are A, B and C. Nasa second floor sila
nagpipiramahan. Habang pumipirma si X, si C
ay mediyo may nakita siya sa baba at bumaba, at
nong natapos niyang kausapin yong taong nakita
niya sa baba ay mukyat siya at noon ay si B na
ang pumipirma tapos na si X and A. After B siya
naman yong pumirma at andon na silang lahat. It
was only when A was signing that B is not
present, andon siya sa baba.
Situation number 2. kaya nasa bunggalo sila,
andon sila sa living room, doon sila
nagpirmahan pero habang pumipirma yong si X,
nagkataon naman na nagcall of nature tong si C.
Nagtanong siya kung nasan yong CR at pumunta
siya don. At nong natapos na siya nong personal
necessity at bumalik na siya don sa living room
natapos ng pumirma si A at ang pumipirma na
noon ay si B and then C.
Situation number 3. kaya hindi umalis si C
pero malapit siya sa bintana at may kinakausap
siya na tao sa labas ng bintana kasi malapit sa
bintana yong tao. Kinakausap niya yong tao at
hindi niya tinitignan yong pagpipirma nong mga
kasama niya, si X, A and B. Hindi niya nakita
pero he was there. He did not leave the place.
Situation number 4. may tumawag sa kaniya sa
cellphone, so habang pumipirma yong mga
kasama niya siya ay nakikipag usap sa cellphone
niya, but he was there he did not leave the place.
What is the effect of those situations in the
requirement that the testator shall sign each and
every page of the will being witnessed by the 3
credible witnesses and in their presence of one
another.
In situation 1 and 2 – the Supreme court said
the will should be disallowed. Why? Kasi hindi
lang sa hindi nawitness ni C yong signing of the
will by A, wala rin siya don. He was not there
because he was away.
In situation 3 and 4, the Supreme court said
through various jurisprudence, it is settled that is
already a compliance to the requirement of the
law, that the testator and the other witnesses
signed in the presence of one another. Presumed
na yong witness na signing. What is important is
that C was there at the place where the will was
signed by the testator and of one another. Basta
hindi lang aalis don sa lugar na
pinagpipirmahan.
With respect to the place of signature. One place
of each and every page of the will. The law says,
the signatures of the testator and of the witnesses
must be at the left margin. It has been settled by
the Supreme Court that the signatures maybe
affixed in any place on the will. What is
important, the Supreme Court said, the will has
been signed by the testator and all the other
credible witnesses on the face of each and every
page of the will.
What about the pagination. Sabi kasi ng law, the
pagination must appear in the upper right-hand
corner of each and every page of the will.
Ngayon, kahit saan na yong pagination. Basta
consistent yong place. At sinabi pa the
pagination must made in letters. Ngayon,
acceptable na according to the jurisprudence in
number.
- there was a time when a will had reached the
supreme court, one of the pages yong number 7
ata. Mediyo marami yong disposition, property
yong testator na pinamigay. Ang nangyari yong
pagination tama naman yong upper right hand
yong pinaglagyan by number. It just so
happened that page number 7 of the will ay iba
yong pinaglayan nong number 7 at doon siya
nakalagay doon sa gitna yong page 7 and all the
number of the other pages of the will ay doon
nag aappear sa upper right-hand corner of each
and every page of the will. The Supreme Court
said it would be unfair to the testator if the
whole will shall be disallowed. So, it allowed
the will. It would be unjust and unfair to the
testator if they will disallow the whole will but
the dispositions found on page 7 was not
disallowed, it is not effective and not valid.
Take note!
With respect to whole of the will, strict
compliance to the formalities is required.
However, imperfections and errors in the
attestation could be corrected. As a matter of
fact, the law itself says that a substantial
compliance of the attestation clause in the will is
enough. But entirety of the will must strictly
comply with the formalities given by the law.
2. For Holographic will
a. Must be entirely written, dated
and signed by the hand of the
testator. Requirement to each
and every disposition.
Take note: this must all agree, hand written,
dated and signed.
The Holographic will can be a running will.
Pwedeng gawin on different dates.
Kailangan may pirma at may date, kapag may
pirma at walang date that is not considered as a
valid disposition.
Halimbawa sabihin natin, sampung araw yong
nakalagay doon. Yong dispositions magkakaiba.
The testator might have been using a different
pen. Magkakaiba yong kaniyang pagsulat don.
Yong mga iba, disposition number 4,5 and 6 ay
may pirma pero walang date so anong sabi
natin? The dispositions even though they are
signed but are not dated are invalid dispositions.
Eh ang nangyari sa kaniyang disposition 10,
pinirmahan niya at may date. All the
dispositions above, yong mga naunang
dispositions yong may pirma walang date yong
yong defect are cured by the last disposition that
has a date and a signature. Pero yong date ng
mga naunang disposition are now to be
presumed to have been dated at the time when
the last disposition was dated.
Take note!
In the probate of the will, for purposes of
allowance or disallowance, if the will,
holographic will, is uncontested, kailangan lang
ng isang witness to testify that the signatures of
the testator in the dispositions he had made is
that the genuine and true signature of the
testator. However, if the will is contested there
must be at least 3 witnesses who will testify the
genuineness of the signature of the testator on
the holographic will. Hindi sufficient yong isa
lang.
Testamentary succession is preferred over
intestacy.
What if in uncontested, walang magwiwitness
tapos if contested kulang ang magwiwitness- the
court will ask an expert witness to testify. Hand
writing experts.
Insertions, alterations, cancellations, and
erasures in a holographic will must be
authenticated by the full signature of the testator.
Hindi pwede yong initial lang niya. However,
the testator cannot authenticate the insertions
cancellations, erasures and alterations by his
initials.
Wills executed abroad by Filipinos or even
foreigners, you apply lex loci celebrationis
(Article 17 of the NCC), if the formalities are
valid in the country where it was executed then
it will also be valid in the Philippines. If there is
no proof as to what are the formalities required
in the country where the will was executed then
it is presumed that the formalities in that country
is the same as the formalities required under
Philippine laws. Kaya kailangan merong proof
as to the formalities required in that country.
What is the limitation? Joint will is not allowed
here in the Philippine laws as such, even
executed abroad and was in accordance with the
formalities within such country, that will is still
invalid and void in the Philippines. -substantive
laws in the Philippines will prevail over the
formalities in other country.
Witnesses, sino yong pwedeng magwitness sa
isang will? The same as the requirements of the
testator: 1. Of legal age and 2 of sound mind
during the execution of the will.
Disqualifications: 1. If he is blind. 2. If he is
deaf and dumb. 3. Those who are not domiciled
in the Philippines. And 4. Those who had been
convicted of falsification of documents, perjury
and false testimony.
Take note!
Intervening incapacity of a witness does not
prevent the allowance of the will if at the time
the witness signed as a witness he was
capacitated.
Dispositions made in favor of the witness, his
spouse, his parents or children made by the
testator in the will itself shall not be given effect.
Those dispositions to the witness, to his spouse,
ascendants and descendants will be given effect
if you will remove him as a witness there is still
3 remaining qualified witnesses.
The case of the creditor is different. Pagdi
nabayaran nong testator during his lifetime,
merong legal right yong creditor to collect from
the estate of the testator. And that will not
disqualify him as a witness to the will.
What is a codicil? It is a supplement or an
addition to the will made after the execution of
the will.
it is only after the will has been executed that a
codicil can be made. What are the purposes of
the testator in executing a codicil?
The disposition made in the will is
explained, added to or altered. Ayaw niyang
magsulat na ng panibagong will, ieexplain
na lang niya yon or iaalter niya yon or mag
aadd lang siya ng mga dispositions niya don
sa will.
Take note! The codicil forms part of the
will that it supplement, therefore, the
formalities required for a will are also the
formalities required in the codicil.
Incorporation in the will as reference. The
law allows the incorporation of a document
in a will by reference. But there are
requirements: a. The document or paper
referred to in the will is in existence at the
time of the execution of the will. Hindi
pwede yong mangyayari palang or isusulat
palang. b. It must be clearly described. The
document being referred to in the will must
be clearly described in the will and more
particularly the number and pages of the
will. And it is proven that it is the same and
true document being referred to in the will.
c. That the testator and all the witnesses
must sign each and every page of the
document referred to. Exception: The
signature is dispensed with only if the
documents refer to voluminous books of
accounts.
Revocation of the will. The right to revoke is
presumed and any waiver to the right to
revoke is void.
Take note!
The revocation of the will must be made or
effected by the testator before his death. It
cannot be done after death.
Modes of revocation:
1. Revocation by the implication of the
law.
- By tearing it, burning it, cancel it or
by obliterating the will must be
coupled with the intention of
revoking the will. It is not sufficient
that the will was burnt, torn,
obliterated or canceled if there was
no intention to revoke there was no
revocation.
- How could it now probated then if
the will was loss or destroyed
without the intention of doing the
same? Answer: refer to Rules on
evidence.
2. Revocation by the execution of a
subsequent will, codicil or any
document that complies with all the
requirements of the will.
- Must comply with all the
requirements or formalities in
executing a will.
- Subsequent will that does not
expressly revoke a previous will, the
dispositions made in the previous
will shall still be given effect and
those that are inconsistent in the
dispositions in the subsequent will
shall only be annulled. Both will be
probated. The dispositions made in
the subsequent will will prevail over
the previous will.
- Revocation of the subsequent will
shall be effective pag express yong
revocation.
 - The revocation of the first will can The first will is revoked expressly by a
only be revived by the execution of subsequent will. The revocation of the second
a new will. will does not automatically revived the first will.
- Even if the heirs instituted in the
First will valid as to its form, then second will
second will will be incapacitated
valid as to its form revoking the first will, then
including the devisees and the
another will valid as to its form revoking the
legatees, it will not have the
second will, the revocation of the second will
automatic revival of the first will.
not have the effect of reviving the first will.
Take note! The revocation of a will based upon Kailangan irepublish mo siya ulit isulat mo siya
a false cause or an illegal cause, the revocation is ulit yong mga dispositions doon must be written
rendered void and the previous will is revived and reproduced a new.
ipso facto.
What about if revocation will is valid? In the
first will that was revoked, there was a
recognition of an illegitimate child. What will
become after the recognition in the previous
will? Eh narevoke na yong will. Answer: The
recognition made by the testator in the previous
will that was revoked in favor of a illegitimate
child shall still be valid and binding. What are
revoked only are the dispositions it does not
revoked the recognition.
Nirevoke? Nagbago ulit yong isip niya. Anong
gagawin niya ngayon? Answer: Re:Publication
and revival. How will it be done? If the first will
was void as to its form, the second will that has
the purpose of reviving the first will, it is not
sufficient that the third will state that the first
will is revive. Why? Because you could not
revive a will that is void. So the only way that
you could revive the dispositions made in the
first will that is void in form is to restate in the
third will.
The execution of a codicil expressly stating that
the first will shall be republished or revived and
it will have that effect kahit yong mga
dispositions don sa unang will, will no longer be
reproduced or restated in the codicil it has the
effect of republication pagka hindi siya void as
to form. Pagvoid as to form kailangang ulitin
lahat yong dispositions made in the first will in
the third will.