Art.

820 CIVIL CODE OF THE PHILIPPINES

(2) if executed in the Philippines, same should be con-

sidered VOID because although apparently allowed
under Art. 817, still Art. 818, which refers specifi-
cally to joint wills, and which should be considered
as an expression of public policy, should prevail.

Subsection 4. — WITNESSES TO WILLS

Art. 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will mentioned in Article 805 of this Code. (n)

COMMENT:
(1) Qualifications for Witnesses to Notarial Wills
At the time of attesting (Arts. 820 and 821), the witness
must:
(a) be of sound mind (Art. 820)
(b) be at least 18 years (Art. 820)
(c) be able to read and write (Art. 820)
(d) not be blind, deaf, or dumb (Art. 820)
(e) be domiciled in the Philippines (Art. 821)
(f) not have been CONVICTED (by final judgment)
of FALSIFICATION of a document; PERJURY; or
FALSE TESTIMONY (Art. 821)

Gonzales v. Court of Appeals

L-37453, May 25, 1979
The word “credible” with reference to the witnesses of a
will does not have the same meaning of “credible witness” under
the Naturalization Law. In wills, a credible witness must have
all the qualifications specified by the Civil Code.

(2) Question on the Language Required

Is it essential for the witness to be able to speak and write
the very language in which the will was written?

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CIVIL CODE OF THE PHILIPPINES Art. 821

ANS.: No, since after all, the witness does not even have
to know the contents of the will. Therefore, he does not have
to understand the language concerned. (See 57 Am. Jur. Wills,
Sec. 311).
[NOTE: It is not even essential for the witness to know
the language in which the attestation has been written. It is
sufficient that same be interpreted to him. (See Art. 805).].

Art. 821. The following are disqualified from being wit-

nesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)

COMMENT:

(1) More Qualifications for Witnesses Than for Testators

Note that the qualifications of a witness to a notarial will
are numerically more than those required of a testator.
Example: While a blind or illiterate person can make a
will, he cannot be a witness to a notarial one.
(Of course, a blind person can witness a holographic will,
since after all, said will requires no witness.)
Observe however that it is not essential that the witness
be a citizen of the Philippines, for domicile is what the law
merely requires. Domicile is defined in Art. 6 of the new Civil
Code as the place of habitual residence.

(2) Rule if Will is Executed Abroad

If a Filipino in the U.S. wants to execute a notarial will
in accordance with Philippine laws, do his witnesses have to
be domiciled in the Philippines?
ANS.: It is submitted that the answer is in the negative,
since after all, the will is being made in the U.S.

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Art. 821 CIVIL CODE OF THE PHILIPPINES

[NOTE: Of course, it should be observed that gener-

ally, there are two reasons for the requirement of Philip-
pine domicile:
(a) the assurance that the witness will be available at
the time the will is presented for probate;
(b) the likeliness of personal acquaintance with the tes-
tator (hence, greater credibility as a witness, for ex-
ample, on the soundness of mind of the testator).].

(3) Rules Regarding Convicted Witnesses

Note that regarding convicts, only three crimes have been
mentioned:
(a) falsification of a document (whether the document
be public, commercial, or even private)
(b) perjury
(c) false testimony
By implication, conviction for other crimes such as
murder or arson or rape cannot be said to be a disquali-
fication.

(4) Effect of Pardon

(a) If the pardon was given because of the man’s innocence,
as when somebody else had been proved to be the really
guilty person, he can now act as a witness to a will. This
is because there is no mental dishonesty.
(b) If the absolute pardon was an act of Executive grace of
clemency, it is submitted that the disqualification re-
mains, for even an absolute pardon does not remove civil
consequences. The would-be witness still has a taint of
mental dishonesty.
Example: Even an absolute pardon granted a wife by
the Chief Executive, after a wife has committed the crime
of adultery, will not prevent the husband from instituting
a suit for LEGAL SEPARATION, as long as the prescrip-
tive period has not yet lapsed.

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CIVIL CODE OF THE PHILIPPINES Art. 822

(5) Disqualification of Notary Public Concerned

The notary public before whom the notarial will is ac-
knowledged is disqualified to be a witness to said will. It would
be absurd for him (as witness) to be acknowledging something
before himself (as notary public). (Cruz v. Villasor, et al., L-
32213, Nov. 26, 1973).

(6) Credibility of a Witness to a Notarial Will

Gonzales v. Court of Appeals

L-37453, May 25, 1979

While the instrumental witnesses to a will must be shown

to have the qualifications under Art. 820 of the Civil Code and
none of the disqualifications under Art. 821, it is presumed
that they are trustworthy and reliable, unless the contrary is
established.

Art. 822. If the witnesses attesting the execution of a

will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will. (n)

COMMENT:
Effect of Subsequent Incapacity
(a) Observe that subsequent incapacity is immaterial. Of
course, if the witness is incapacitated to testify at the time
of probate, he cannot testify as a witness. This does not
mean, however, that the validity of the will is impaired
by such fact.
(b) Note also that capacity as a witness to a will is different
from capacity as a witness in court. To be a witness in
court, it is sufficient that a person be “possessed of organs
of perception, and perceiving can make known what he
has perceived.” Hence, a 15-year-old person, for example,
may be a witness in court.

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Art. 823 CIVIL CODE OF THE PHILIPPINES

Art. 823. If a person attests the execution of a will, to

whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
child of such person, or any one claiming under such per-
son or spouse, or parent, or child, be void, unless there are
three other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given. (n)

COMMENT:

(1) Witnesses Cannot Inherit

(a) Observe that the persons named in the Article are inca-
pacitated to inherit, but not incapacitated as witnesses.
Hence, only the part appertaining to them should be
considered void.
Example: T made a notarial will with A, B, and C
as witnesses. In the will, A was given a piece of land as
a devise. There were of course other testamentary provi-
sions. Is the will valid?
ANS.: The will is valid, since there were three cred-
ible witnesses, A being one of them. However, while A is
capacitated as a witness, he is incapacitated to receive the
devise, hence, the provision regarding said devise should
be disregarded, the rest of the will being valid.
(b) If in the example given above, there were three witnesses
other than A, A would be entitled to get the land.
(c) The disqualification extends to —
1) the witness
2) the spouse of the witness
3) the parent of the witness
4) the child of the witness
5) anyone claiming the right of said witness, spouse,
parent, or child. (Example: the creditor of the witness
if said creditor has not been paid his credit.)

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CIVIL CODE OF THE PHILIPPINES Arts. 824-825

[NOTE: Other relatives of the witness, like his

brother or sister, to whom a devise or legacy has
been given, can get the inheritance.].

(2) Effect if Witness is a Compulsory Heir

If the witness, spouse, parent or child (of the witness)
is a compulsory heir (as when the witness is the child of the
testator), said heir is still entitled to the LEGITIME, otherwise
this would be an easy way to sort of disinherit him without any
justifiable cause. (See Art. 915). The purpose of the law being to
prevent undue influence, it is understood that the prohibition
refers only to the free portion.
[NOTE: While the law says only devise or legacy, it should
be understood to refer also to the institution of an heir (volun-
tary), and or even of compulsory heirs also, but only insofar as
he has been given the free portion or an excess of his legitime.
(See also Art. 1027, par. 4 which does not distinguish between
heirs on the one hand, and devisees or legatees on the other
hand.)].

Art. 824. A mere charge on the estate of the testator for

the payment of debts due at the time of the testator’s death
does not prevent his creditors from being competent wit-
nesses to his will. (n)

COMMENT:
Creditors as Witnesses
(a) The charge referred to here is a debt of the estate or of
the testator.
(b) While a creditor who acts as a witness is disqualified to
inherit, he is qualified to receive his credit, which after
all cannot be considered a gift.

Subsection 5. — CODICILS AND

INCORPORATION BY REFERENCE

Art. 825. A codicil is a supplement or addition to a will,

made after the execution of a will and annexed to be taken as

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