A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death (Civil Code, Art. 783). The person who makes the Will is called the testator. The elements are discussed below. For easy reference, the provisions are cited (unless stated otherwise, the provisions are from the Civil Code).
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To make a valid Will, a person must be of legal age (18 years old and above; Art. 796)), not expressly prohibited by law to make a Will (Art. 796), and of sound mind (Art. 798). A married woman may make a Will without the consent of the husband and without need of authority from the court (Arts. 801, 802).
The law presumes that every person is of sound mind (Art. 800). To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause (Art. 799). Forgetfulness is not equivalent to being of unsound mind. It shall be sufficient if the testator was able at the time of making the Will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.
If the testator be deaf, or a deaf-mute, he must personally read the Will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof (Art. 807). If the testator is blind, the Will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged (Art. 808).
Testamentary capacity is an essential requisite for the validity of a Will. A Will cannot be probated if, among others: (a) the testator was insane, or otherwise mentally incapable of making a Will, at the time of its execution; (b) the Will was executed through force or under duress, or the influence of fear, or threats; (c) the Will was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (d) The signature of the testator was procured by fraud; and (e) The testator acted by mistake or did not intend that the instrument he signed should be his Will at the time of affixing his signature thereto.
A notarial Will must be in writing and executed in a language known to the testator (Art. 804). Unlike a holographic will, a notarial Will need not be handwritten by the testator. A notarial Will can be printed (if a Will is printed, it cannot be a holographic will).
The will must be subscribed at the end thereof by: (a) the testator himself; or (b) the testator’s name written by some other person in his presence, and by his express direction (Art. 805).
In the case of (b) above, when the testator cannot sign, the following must appear on the Will: (i) the name of the testator was written under the Will by another person; (ii) the writing by another person must be under the express direction of the testator; and (c) the act of writing was done in the presence of the testator and the other witnesses.
The notarial Will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another (Art. 805). The witnesses, just like the testator, must sign the Will at the end thereof. In other words: (a) the testator must sign the will in the presence of all the witnesses; and (b) the witnesses must sign the will in the presence of the testator and of each other.
The notary public before whom the Will is attested cannot be considered a witness.
The formalities in executing a Will are very specific. The probate of a Will shall be disallowed if the formalities required by law have not been complied with (Art. 839). In addition to the signatures of the testator and the witnesses at the end of the Will, the testator 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. [Art. 805]
The Will must also contain an attestation clause, which shall state: (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; and (c) that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
The purpose of requiring the number of sheets to be stated in the attestation clause is obvious: certain pages might be removed or added.
The signatures at the end of the Will and the signatures on top of each page have different purposes:
The attestation clause is separate and apart from the disposition of the Will. An unsigned attestation clause results in an unattested Will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.
A jurat, in contrast to an acknowledgment, is not sufficient. The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the Will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious Wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the Will.
A notarial Will, as the name suggests, must be notarized. Every Will must be acknowledged before a notary public by the testator and the witnesses (Civil Code, Art. 806). The notary public is not required to retain a copy of the Will or file it with the Office of the Clerk of Court. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them (Art. 805).
To reiterate, the Will must be subscribed and attested. The act of subscribing (at the end of the will and every page thereof, by the testator and the witnesses) need not be done in the presence of the notary public, but the attestation must be done in the presence of the notary public.
A Will which is Notarized may still be valid, so long as it complies with all the requirements of a holographic Will. Unless a will is a compliant with the requirements of either a notarial or holographic will, it cannot be admitted to probate and, therefore, has no effect whatsoever and no right can be claimed thereunder.
[Sources/Quotes: Azuela vs. CA, G.R. No. 122880, 12 April 2006; Balonan vs. Abellana, G.R. No. L-15153, 31 August 1960; Baltazar vs. Laxa, G.R. No. 174489, 11 April 2012; Cruz vs. Villasor, G.R. No. L-32213, 26 November 1973]
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