What Is Holographic Will In The Philippines | No Witness Testament
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Introduction

In this article, we shall talk about what is holographic will in the Philippines.

In its general sense, a Will is a document in which a person disposes his property and the same takes effect after his death. As defined in Black’s Law Dictionary,[1]Page 1772, 4th Edition, 1968 a Will is a “Legal expression or declaration of a person’s mind or wishes as to the disposition of his property, to be performed or take effect after his death.

If the will operates on a personal property, then the same is termed as “testament,”[2]In the Philippine Law of Succession, it is called a legacy, and the person to whom it is given is called a Legatee and upon real property, it is called “devise.”

In ancient Greece and Rome, Wills are already used to transfer the properties possessed only by male citizens to their heirs. For ancient Greeks and Romans to create a will, they must be of sound mind and body, and the same has to be witnessed by a third party, similar to the present time that there are wills to be reduced in writing and should be notarized.

It is believed that according to Plutarch, Solon invented the written will. In the book “The Parallel Lives[3]Page 463 Vol. 1, 1914 written by the former, he described Solon as highly:

“Esteemed for his law concerning wills.” Plutarch further written that “before his time, no will could be made, but the entire estate of the deceased must remain in his family.[4]Ibid.

“Whereas he, by permitting a man who had no children to give his property to whom he wished, ranked friendship above kinship, and favour above necessity, and made a man’s possessions his own property.[5]Ibid.

“On the other hand, he did not permit all manner of gifts without restriction or restraint, but only those which were not made under the influence of sickness, or drugs, or imprisonment, or when a man was the victim of compulsion or yielded to the persuasions of his wife.[6]Ibid.

“He thought, very rightly and properly, that being persuaded into wrong was no better than being forced into it, and he placed deceit and compulsion, gratification and affliction, in one and the same category, believing that both were alike able to pervert a man’s reason.”[7]Ibid.

Aside from the studies of ancient Greece and Rome, historians traced the early usage of the Wills in England. In the early English time, the Will does not only designate the inheritance of the property but also determines the who inherited the property the heirs might own.

Wills in the Philippines | Extrinsic and Intrinsic Validity

As provided under Article 17 of the New Civil Code, “the forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.”[8]Article 17, Civil Code

This is also known as Lex Loci Celebrationis. This particular provision of law governs the extrinsic validity of a Will. In other words, forms and solemnities, particularly of a Will, is governed by laws of the country where it was executed.

In our discussion, it is the Civil Code, particularly in Book III, Title IV, that governs the extrinsic validity of a Will. Article 795 of the New Civil Code provides that 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 his estate, to take effect after his death. “

On the other hand, the law governing the intrinsic validity of a Will is governed by the law of the nationality of the testator, or the principle of Lex Rei Nationalii. This principle is the interpretation of Article 15 of the New Civil Code.[9]Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. In the case of Bellis vs. Bellis,[10]G.R. No. L-23678, June 6, 1967 the Supreme Court explained the intrinsic validity of a Will executed by a person who is not a Filipino resident and citizen. Pertinent portion of which, reads:

“The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.”[11]Ibid.

Any Filipino citizen may dispose of his property through the execution of a will in a form prescribed by the Civil Code. It may be a notarial will, under Articles 804-804 of the Civil Code, or holographic will under Articles 804, 810 to 814 of the same Code.[12]Civil Code on Succession, Title IV, Chapter 2

What governs as to the extrinsic validity of a Will, regarding its forms and solemnities, is the law of the Country, where the said document was executed following the principle of Lex Loci Celebrationis. On the other hand, in order to interpret the intrinsic validity of a Will, the governing law shall be the law of the nationality of the testator, that is following the principle of Lex Rei Nationalii.

What is Holographic Will in the Philippines?

A holographic will is one which is entirely handwritten, and it is dated and signed by the testator. Notably, in holographic wills, the testator must personally know the language he is using in the said will, and the contents thereto must be entirely handwritten by him personally. Specifically, the law says:

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.[13]Article 810, Civil Code

In other words, for the said Holographic Will to effect its validity, aside from being signed by the testator, this document must be dated as well by the testator himself.

In the old case of Testate Estate of Felicidad Esguerra Alto-Yap vs. Ildefonso Yap,[14]G.R. No. L-12190, August 30, 1958 the Supreme Court briefly discussed the applicability of the execution of Holographic Wills, to wit:

“The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.[15]Ibid.

“The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. ‘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.'[16]Ibid.

“x x . .”

This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other.”

Nature of Holographic Will

Merriam Webster dictionary defines the term “holograph” as a “document wholly in the handwriting of its author.” The contents of a holographic document are entirely handwritten personally by the person executing the same. Will, on the other hand, as previously discussed, is a document in which the testator expressly states his inheritance and the matter of its disposition.

Corollarily in our discussion, a Holographic Will is a document executed by the testator himself wherein he has personally written, dated, and signed the same by his own hands, statements expressing thereto his inheritance and the manner on how to dispose the same.

As compared to a Notarial Will, the same is encoded or printed. If a Will is printed, it is not a Holographic Will. Further, a notarial will necessitates the presence of at least three (3) witness in its execution and the said witnesses are required to sign thereto as well.

In contrast, executing a Holographic Will is easy and not complicated because one only needs to personally handwrite his testaments, and it is valid as long as it is signed and dated. The need of witnesses in its execution is no longer necessary.

Equally easy to execute is to falsify the same considering its nature, which was only handwritten by the testator, and the circumstance of the execution is without the presence of any witnesses.

As previously discussed with respect to its applicability, the Supreme Court elucidated the nature of the holographic will, in the same case of Testate Estate of Felicidad Esguerra Alto-Yap vs. Ildefonso Yap,[17]Supra. which reads:

“Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are “entirely written, dated, and signed by the hand of the testator himself.[18]Ibid.

“The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself.[19]Ibid.

“In the probate of a holographic will” says the New Civil Code, “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.[20]Ibid.

“If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary, expert testimony may be resorted to.”[21]Ibid.

“The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator’s hand.[22]Ibid.

“However, the oppositor may present other witnesses who also know the testator’s handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased.(Section 50 Rule, 123)[23]Now, Sec. 50, Rule 130 of the Rules of Court.[24]Ibid.

“And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator.”[25]Ibid.

The Philippine Law on Succession allows the execution by the testator of his holographic will. The only requirement is that, as discussed above, such holographic will, prepared and made by the testator himself, must be written in its entirety by his hand alone (Article 810, Civil Code). Otherwise, if the same is partially written by the decedent and the rest, by the handwriting of same other person, the holographic will is void and cannot be probated.

What is the purpose of a holographic will?

It must be noted that under Article 810 of the Civil Code, a holographic need not be witness. Thus, aside from the strict formalities of making a notarial will, which some people may have a dread in doing so, the execution of a holographic will provides for secrecy, other than that offered by the making of a notarial will.

The testator can freely express himself as regards the nature of his estate to be disposed of and the proper objects of his bounty.[26]Article 799, Civil Code

Does a holographic will need to be probated in the Philippines?

All wills, both notarial and holographic, should and must be probated. Under the Article 838 of the Civil Code, it mandates in an emphatic fashion that:

“No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.[27]Article 838, Civil Code

“The testator himself may, during his lifetime, petition the court having jurisdiction for the “allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s a death shall govern.[28]Ibid.

“The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.[29]Ibid.

“Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.

Meaning, if there is an existing will, after the death of the decedent, the heirs cannot yet alienate, convey, transfer, or otherwise dispose of the estate for their benefits, without the will first being probated, whether the same is a holographic or notarial will.

How do you prove the Holographic Will when it is being probated?

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.[30]Article 811, Civil Code

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to.[31]Id.

Several dispositions, although signed but not dated

Article 812 of the New Civil Code provides that “the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary disposition.”

This provision explains that in order to validate any Holographic Wills, the statements or dispositions thereto, i.e., the expressions on the inheritance and the manner of its disposal, must be signed by the testator himself and it shall be dated, also by him, so as to effect the validity of the said Will.

There are instances that the testator may personally write as many dispositions as possible and he may do it so, depending on the number of his inheritance. If the said event occurred, what would happen to the other several expressions in the Holographic Wills? Although these were signed, but are not respectively dated. Could this circumstance affect the validity of the Will executed?

Article 813 of the New Civil Code states that “when a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.”[32]Article 813, Civil Code

In the words of the law, it is clear and unambiguous that in holographic wills with several number of dispositions, the last disposition which was signed and has a date in it, the latter date validates all the dispositions preceding it. Note however, that these several dispositions, even though dated, but without having been signed by the testator, the same is void and produces no legal effects.

Epilogue

At the end of the day, we will die either with successors or without heirs. As practical as everybody may deem it well, it is equally and legally important, more so, for any person who may have several properties, to execute a will whether notarial or holographic, so as to prevent any rift between his heirs with respect to the disposition of the decedent’s properties.

This presupposes convenience, as the desire of the decedent has been expressly written and the execution of a Will may no longer form a cloud of doubt as to the distribution of the inheritance among the rightful heirs.

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RALB Law | RABR & Associates Law Firm

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