B6. Form of Notarial and Holographic Wills

Question 1

Common formalities

Answer 1

Must be in writing
It must be executed in a language known to the testator

Question 2

NOTARIAL

(SAS-NAN)

S-A

Answer 2

3. 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. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;

Two Requirements:
a. Attesting – an act of witnessing
b. Subscribing – an act of signing their names in the proper places of the will

Test for the Determination of the Presence of Witnesses In order that the witnesses be deemed present at the time of the execution of the will, it suffices that the witnesses were so situated in a manner thatthey had the opportunity to see the testator sign the will. It is not necessary that they actually saw the testator affix his/her signature on the will.

Question 3

Signed

Answer 3

5. The testator or the person requested by him to write his name must also sign every Page, except the last, on the left margin in the presence of the witnesses.

Question 4

Pages must be NUMbered

Answer 4

All the pages shall be Numbered correlatively in
letters on the upper part of each page;

a. Mandatory – pagination by means of a conventional system purpose of which is to prevent insertion or removal of pages.

b. Directory – pagination in letters on the upper part of each page. (Balane, 2010) The pages may be expressed either in words (e.g.,“Page One of Seven”) or in figures (e.g., “Page 1 of 7”)

Question 5

Attestation clause

Answer 5

Must contain an Attestation clause which expressly states the following:

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 witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. (Art. 805(3), NCC)

Question 6

NOTARY

Answer 6

Must be acknowledged before a Notary public by
the testator and the witnesses. (Art. 806, NCC)

Question 7

Rules if the Testator is Deaf or Mute:

Answer 7

1. If The testator is able to read, he must personally read the will; or
2. If the testator is unable to read, he must designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (Art. 807, NCC)

Question 8

Rules if the testator is Blind:

Answer 8

The will shall be read to him twice, once by one of the subscribing witnesses, and another time by the notary public before whom the will is acknowledged. (Art. 808, NCC) (2008 BAR)

Question 9

Qualifications of witnesses (S-18-A-B-C-D)

Answer 9

1. Of Sound mind.
2. At least 18 years of age.
3. Able to read and write
4. Not Blind, deaf or dumb
   NOTE: While a blind or deaf may not be a witness, he could be a testator in a notarial will
5. Not have been Convicted by final judgment of falsification of a document, perjury or false testimony.
6. Domiciled in the Philippines – his habitual residence must be in the Philippines. (Art. 50, NCC

Question 10

Formalities Required in the Execution of Holographic Wills: (E-D-S)

Answer 10

1. Entirely written, dated and signed by the hand of the testator

*GR: The “date” in a holographic will should include the day, month, and year of its execution.

XPN: When there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date appearing e.g., “FEB. ‘61” on the holographic will is a valid compliance with Art. 810 of NCC, probate of the holographic will should be allowed under the Principle Of Substantial Compliance. (Roxas v. De Jesus, G.R. No. L-38338, 28 Jan. 1985)

*Signed by the hand of the testator himself

In a holographic will, the signature must be at the end of the will. This can be inferred from Art. 812 of the NCC by the reference to dispositions “written below his signature.” This phrase implies that the signature is at the end of the will, and any disposition below it must further be signed and dated.

2. 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 (Art. 812)
3. 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 (Art. 813)
4. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (Art. 814)