Under Philippine law, the preparation and execution of a last will and testament strictly depend on whether the testator chooses to execute a notarial (ordinary) will or a holographic will.
Regardless of the type, the testator must have testamentary capacity: they must be at least 18 years old, not expressly prohibited by law, and of sound mind (able to know the nature of the estate to be disposed of, the proper objects of their bounty, and the character of the testamentary act). Every will must also be in writing and executed in a language or dialect known to the testator.
1. Preparation and Notarization of a Notarial Will
A notarial will must comply with rigid solemnities, including specific subscription, attestation, and acknowledgment requirements.
Preparation Formalities:
- Signatures at the End: It must be subscribed at the logical end by the testator, or by someone else in the testator’s presence and by their express direction.
- Three Witnesses: It must be attested and subscribed by at least three (3) credible witnesses in the presence of the testator and of one another.
- Marginal Signatures: The testator (or their representative) and the instrumental witnesses must sign on the left margin of each and every page, except the last page.
- Pagination: All pages must be numbered correlatively in letters placed on the upper part of each page.
- Attestation Clause: The will must contain an attestation clause stating: (a) the total number of pages; (b) that the testator signed the will and every page thereof in the presence of the instrumental witnesses; and (c) that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another.
Notarization Rules:
- Acknowledgment is Mandatory: The will must be acknowledged before a notary public by the testator and the witnesses. An acknowledgment involves the parties declaring before the notary that they executed the will as their own free act and deed.
- A Mere Jurat is Void: A notarial will that only contains a jurat (a certification that the document was sworn to) instead of an acknowledgment is fatally defective.
- Disqualification of the Notary: The notary public acknowledging the will cannot serve as one of the three attesting witnesses, as it is legally absurd for a person to acknowledge something before themselves.
- Timing and Location: The signing by the testator, witnesses, and notary does not need to be accomplished in one single act or on the exact same day. However, the acknowledgment is void if taken outside the territorial limits of the notary public’s jurisdiction.
- No File Copy Required: Unlike ordinary public documents, the notary public is not required to retain a copy of the will or file another with the Office of the Clerk of Court.
2. Special Rules for Handicapped Testators
If the testator has specific disabilities, the law imposes additional requirements during the preparation and notarization of the will:
- Deaf or Deaf-Mute: The testator must personally read the will if able to do so. If not, they must designate two persons to read it and communicate the contents to them in some practicable manner.
- Blind or Illiterate: The will must be read to the testator twice: once by one of the subscribing witnesses, and again by the notary public before whom the will is acknowledged.
3. Preparation of a Holographic Will
A holographic will is significantly simpler to prepare and requires no notarization.
- It must be entirely written, dated, and signed by the hand of the testator.
- Because its authenticity relies completely on the testator’s handwriting, it is subject to no other form, does not require an attestation clause, requires no witnesses, and need not be acknowledged before a notary public.
- Any insertions, cancellations, erasures, or alterations must be authenticated by the testator’s full signature.
4. Rule on Substantial Compliance
For notarial wills, if there are defects or imperfections in the form of the attestation or its language, the will may still be considered valid if it can be proven that it was executed and attested in substantial compliance with the law. However, this rule only applies if there is no bad faith, forgery, fraud, or undue influence, and the defects can be supplied by a mere examination of the will itself (e.g., the total number of pages is missing in the attestation clause but explicitly stated in the acknowledgment).
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