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Two kinds of will

BY PERSIDA ACOSTA
JANUARY 04, 2019

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Persida Acosta
Dear PAO,
I am 80 years old. I have three children with my first wife and another
four children with my second wife. I want to make a will for the
disposition of my properties in order to avoid conflict between my
children. At the same time, I want to preserve my will even after my
death because I am worried that my will may be altered or falsified.
Please enlighten me on the difference between a notarial will and a
holographic will.
Arturo

Dear Arturo,
In the execution of both notarial and holographic wills, they must be
in writing and in the language or dialect known to the person making
his last will and testament. This is in accordance with our Civil Code,
to wit:

“Article 804. Every will must be in writing, and executed in a


language or dialect known to the testator. (n)”
The difference between notarial and holographic wills is the form.
They have practically the same effects, which is the disposition of
properties to take effect after the death of the testator. However, it
may be noted that with regard to notarial will, the law is very strict
regarding its formalities. The said law has provided the rules on the
execution for notarial wills.

“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.

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“If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. (n)

“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)”

Holographic wills, on the other hand, need only to be entirely written,


dated and signed by the hand of the testator. It is likewise provided in
the Civil Code that the execution of a holographic will is not subjected
to any form, as long as it complies with the requirement that it is
entirely written, dated and signed by the testator. The said provision is
quoted below:

“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)”

In sum, a notarial will requires the subscription of the person making


the will, attestation of at least three disinterested and credible
witnesses, and the same should be acknowledged before the notary
public in order to ensure that it was, in fact, made by the person
making the will. The acknowledgment before the notary public was
further explained in the case of Felix Azuela vs. Court of Appeals (GR
122880, April 12, 2006, Ponente: Associate Justice Dante Tinga),
where the Supreme Court declared that “an acknowledgment is the act
of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that
the same is his/her own free act and deed.” Conversely, holographic
wills impose minimal requirements when it comes to legal formalities
for execution of said will. In fact, it only requires that said will must
be entirely written, dated and signed by the hand of the testator. It
need not be witnessed for its execution. Thus, the making of
holographic wills is simpler.
In addition, the probate of a will may be done by any person interested
in the estate of the decedent at any time after the death of the testator
or the testator himself may, during his lifetime, petition the court of
competent jurisdiction for the allowance of his/her will, in accordance
with Section 1, Rule 76 of the Rules of Court. The said provision is
quoted below:

“Section 1. Who may petition for the allowance of will. — Any


executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or destroyed.

“The testator himself may, during his lifetime, petition the court for
the allowance of his will.”

However, during the probate of a holographic will, there must be at


least one witness who knows the handwriting and signature of the
person making the will unless such probate was made during the
lifetime of the testator, in accordance with Article 811 of the Civil
Code, to wit:

“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.”

We hope that we were able to answer your queries. This advice is


based solely on the facts you have narrated and our appreciation of the
same. Our opinion may vary when other facts are changed or
elaborated.