Civil Law – Wills and Succession
Different Kinds of Succession
Testamentary Succession refers to succession according to the decedent's will. The testator (the one who creates the will) explicitly designates their heirs, legatees, and devisees, determining the distribution of their estate upon death.
Kinds of Wills
Under Philippine law, wills are essential documents in testamentary succession as they carry the wishes of the deceased regarding how their estate should be distributed. The Civil Code of the Philippines provides for two primary types of wills:
- Notarial Wills (Ordinary/Attested Wills)
- Holographic Wills
1. Notarial Wills
A Notarial Will is a formal document requiring compliance with strict formalities under the Civil Code. These formalities serve to prevent fraud and undue influence.
Formalities Required for a Notarial Will (Article 805 and Article 806, Civil Code)
- Written Form: Must be in writing, either in a language or dialect known to the testator.
- Subscription by the Testator: The testator must sign at the end of the will. If they cannot sign, they must direct someone to do so in their presence, and two witnesses must be present and attest to this fact.
- Attestation by Witnesses: The law requires three or more credible witnesses who sign the will and attest that:
- The testator signed the will in their presence.
- They signed in the presence of each other.
- They signed in the presence of the testator.
- Acknowledgment: The will must be acknowledged before a notary public by the testator and witnesses, which gives it the effect of a public document and provides further validation.
- Each Page Requirement: Each page of the will should be numbered, signed by the testator, and by all witnesses, ensuring it cannot be altered without detection.
Additional Points on Notarial Wills
- Incorporation by Reference: The testator may incorporate certain documents into the will by reference, provided the document is already in existence at the time the will is executed, adequately identified, and intended to be made part of the will.
- Witness Requirements: Witnesses must be of sound mind, legal age, and not otherwise disqualified by law. Certain individuals, such as those named beneficiaries in the will, may not serve as witnesses to avoid potential conflicts of interest.
Probate Requirement
A notarial will, as with any will, must undergo probate—a judicial proceeding where the court confirms the authenticity and due execution of the will. Without probate, the will has no legal effect.
2. Holographic Wills
A Holographic Will is a simpler form of will that does not require notarial acknowledgment or witnesses. It is particularly accessible for testators who wish to make their wills independently without adhering to the formalities of a notarial will.
Formalities Required for a Holographic Will (Article 810, Civil Code)
- Entirely Handwritten: The holographic will must be entirely written, dated, and signed by the hand of the testator. Typewritten, printed, or partly handwritten wills are not considered holographic.
- No Witness Requirement: Unlike notarial wills, no witnesses are necessary for the validity of a holographic will. This form is therefore suitable for a person who wishes to keep their testamentary dispositions private or without the formalities of notarization.
- Complete Date: The date of the will must be complete (day, month, and year) to avoid potential disputes about the validity or authenticity. If the date is omitted, the will can be subject to a challenge in court.
- Signature Placement: The testator’s signature must be placed at the end of the will. Any dispositions written after the signature are typically disregarded unless the testator clearly intended them as part of the will.
Amendments and Alterations in Holographic Wills
- Amendments in a holographic will must also be written and signed by the testator to ensure validity.
- Any deletions, insertions, or modifications should follow the same formalities (handwritten and signed) to avoid ambiguity or dispute.
Probate Requirement for Holographic Wills
Holographic wills, like notarial wills, must undergo probate. However, courts apply a less stringent standard due to the unique nature of holographic wills. Proving the authenticity of a holographic will often involves comparing handwriting samples to confirm that the will was indeed created by the testator.
Key Differences between Notarial and Holographic Wills
| Aspect | Notarial Will | Holographic Will |
|---|---|---|
| Form | Formalized, typically typewritten | Entirely handwritten by testator |
| Witness Requirement | Three or more witnesses | No witnesses required |
| Notarization | Requires acknowledgment before a notary | No notarization required |
| Amendments | Must meet formalities | Handwritten, signed by testator |
| Probate | Mandatory | Mandatory |
Advantages and Disadvantages
Notarial Will
- Advantages: Provides security and verification due to witness and notarial requirements; harder to challenge on grounds of authenticity.
- Disadvantages: Lengthy and costly due to formalities; less privacy as it requires witnesses.
Holographic Will
- Advantages: Simple, cost-effective; requires only the testator’s handwriting and signature, allowing for privacy.
- Disadvantages: Can be more vulnerable to challenges regarding authenticity; may not capture all testamentary intentions without legal guidance.
Concluding Remarks
The choice between a Notarial or Holographic Will depends on the testator’s circumstances, preferences for privacy, and ability to meet formalities. For complex estates, notarial wills provide clarity and protection through formalities. In contrast, holographic wills suit those seeking simplicity and privacy, though they should be prepared meticulously to prevent issues in probate.