SUBSECTION 3.

Forms of Wills

 Kinds of wills:

1. Ordinary/notarial will

2. Holograph/Holographic will:

 Nuncupative wills, or those orally made by the testator before witnesses. in

contemplation of death, is not recognized by the NCC.

Article 804. Every will must be in writing and executed in a language or dialect

known to the testator. (n)

 Handwriting can be proven by any witness who has seen the decedent write and
believes it to be the handwriting of such person. It can also be proven by a witness who
has not seen the decedent personally writing but has seen his handwriting in another piece
of paper.

- Resort to handwriting experts is not mandatory or indispensable to the

examination or the comparison of handwriting. The judge may conduct an
independent examination of the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.

 Electronic Commerce Act (ECA), wherein an electronic copy of any contractual

agreement is sufficient to establish existence of contract and its enforceability, does not
apply in execution of a will.

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. (n)
 ATTESTATION CLAUSE vs SUBSCRIBING vs ACKNOWLEDGMENT

 Attestation is the act of the senses while subscription is the act of the hand.

 It is the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator, who
are required to state the number of pages used upon which the will is written.

o Attestation consists in witnessing the testator’s execution of a will in order to

see and take note mentally that those things are done which the statute
requires for the execution of a will, and that the signature of the testator exists
as a fact.

 Subscription is the signing of the witnesses’ names upon the paper for the purpose
of identifying such paper as the will which was executed by the testator.

 Act of Acknowledgment before the notary public does not have to be

contemporaneous with signing of attestation. Acknowledgment does not have to be
done in the presence of witnesses.

 REQUISITES OF NOTARIAL WILL

1. At least 18 years old and of sound mind

a. Knows the nature of the estate

b. Knows the proper objects of his bounty

c. Characteristic of testamentary act

2. The will must be in writing (handwritten, typed or printed). The kind of paper is
immaterial.

3. Will is executed in a language or dialect known to the testator. If testator lives in a

certain locality, there is a rebuttable prima facie presumption that he knows the
language/dialect of the locality.

4. The will is subscribed to by:

i. The testator, or, by another person who wrote his name for him in his
presence, and by the testator’s express direction.

 The person signing for testator must perform the same in the
presence of the testator and under his express direction.
  The person writing for the testator must not be one of the
witnesses, unless there are more than 3 witnesses.

 “for the testator, (name of testator)”. If name of another, the will is

invalid.

 In the presence: does not require actually seeing the signing, as

long as line of view has no physical obstruction. If blind, it is
enough that blind testator realizes what is being done.

ii. At least three witnesses. Competent witness is one able or competent to

testify and possesses qualifications imposed by law.

The will must be signed at the logical end by testator.

o Signature can be a thumbmark.

o It can be abbreviated or signed with nickname, as long as the testator

intends the same as his signature.

o If only the first name appears, the will is valid.

o The will is valid even when the testator’s hand was guided by another
when the signing or marking is made

o Even if testator places a “cross” at the end of a signature written by

another, the signature will not be valid when there is no statement that the
signing of the name was made by another.

5. Each page, except the last, must likewise be signed, at the left margin, by
witnesses and testator.

If both sides of paper are used, both sides must be paged and signed must be
signed.

Last page need not be signed on the left margin since signatures will appear at
the end.

Signing the margin can be anywhere because it’s purpose is to identify the pages
used and to prevent fraud.

Failure to have marginal signatures is a fatal defect.

The marginal witnesses must be very same attesting witnesses.

6. All the pages shall be numbered correlatively in letters place on the upper part
of each page
 “one, two, three…” or “A,B,C…” or “page 1, page 2, page 3…” or “1. 2, 3…”.

It is not necessary to number the first page nor even the last page as long as the
attestation clause states that the will consists of xx number of pages, besides this
one.

7. ATTESTION CLAUSE shall provide

1. The number of pages used upon which the will is written

2. That the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the instrumental witnesses

3. That the instrumental witnesses and signed the will and all the pages
thereof in the presence of the testator and of one another.

“this will consisting of one page was signed by the testator and by all of
us in the presence of all of us and the testator.”

 The attestation clause provides strong legal guarantee for the due
execution of a will and insures the authenticity of the same

 The defects in the attestation clause can be cured or supplied by the text of
the will or a consideration of matters apparent therefrom from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the omitted
textural requirements were actually complied with in the execution of a will.

 The attestation is not part of the will itself, or that it is written in a separate page,
but it may be incorporated into the will too.

 The attestation clause is an act of the witnesses, it need not contain the
signature of the testator.

 Purpose of attestation clause

a. Preserve a permanent record of the facts attending the execution of the

will

b. As proof that there was compliance with statutory requirements in the

execution of the will

c. To minimize fraud or undue influence.

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)

 Refers only to ordinary/notarial will, not to holographic will. Only refers to wills
acknowledged by the testator and witnesses.
  When a will is duly acknowledged before a notary public, there is the presumption of
regularity in its favor.

 Jurat part of an affidavit whereby the notary certifies that the document was subscribed
and sworn by the executor.

 A notarial will must be acknowledged before a notary public both by testator and
witnesses, otherwise, fatally defective

o Notary public need not be present in the execution of the will. Cannot be
one of witnesses,

o Presence of notary public is required for 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)

 RULES WHEN TESTATOR IS DEAF:

1. The testator is deaf or deaf-mute

2. If illiterate, 2 persons must communicate the contents of it to him.

3. ONCE BY SUBSCRIBING WITNESS & ONCE BY NOTARY PUBLIC

ACCORDING TO ART. 808.

4. The 2 communicating persons need not be the attesting witnesses

5. This must be proven in court during probate proceedings. More convenient if

stated in notarial acknowledgment or in the attestation clause that the article
has been complied with.

6. Extrinsic or parol evidence is enough. Evidence aliunde.

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)

 RULES IF TESTATOR IS BLIND

 READ TWICE

1. Once by a subscribing witness; &

2. Once by a notary public.

 Preferable if this type of will is executed and signed in the presence of notary
public for the better protection of the testator.
  IF BOTH BLIND & DEAF/DEAF-MUTE, THEN SOME OTHER WAY THE CONTENTS
THEREOF CAN BE PROPERLY COMMUNICATED TO HIM. Like braille.

 Notary public cannot be one of the witnesses. He cannot acknowledge something

before himself.

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)

 Substantial compliance:

o This article only applies in existence of formal defects in form and

language, does not include substantial defects.

o Substantial compliance is acceptable where the purpose of the law has been
satisfied.

o That the solemnities surrounding the execution of a will are intended to protect
the testator from all kinds of fraud and trickery but never intended to be so rigid
and inflexible as to destroy the testamentary privilege.

Article 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (678, 688a)

Article 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the court
deem it necessary, expert testimony may be resorted to. (619a)

Article 812. In holographic wills, the dispositions of the testator written below his signature must
be dated and signed by him in order to make them valid as testamentary dispositions. (n)

Article 813. When a number of dispositions appearing in a holographic will are signed without
being dated, and the last disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions. (n)

Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature. (n)
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated in
the Philippines. (n)