• Notary needed for last will and testament

    2
    Persida Acosta

    Persida Acosta

    Dear PAO,
    I’d like to ask if it is required for a last will and testament to be notarized. My family is bickering because my sister insists that we should follow the alleged last will of my father even though the document is not even notarized. It is for this reason that I refuse to recognize its validity. I hope you can advice me on whether my father’s will is valid even without being notarized. God bless!
    Edmund

    Dear Edmund,
    The answer to your question depends on the type of will left by your deceased father. According to the Civil Code of the Philippines, there are two (2) ways to legally execute a last will and testament. It can be in the form of a notarial will or a holographic will.

    In general, a notarial will is a type of will wherein the procedure for its preparation and execution requires strict formalities specified by law. Among these is the requirement that the person executing the notarial will should sign on every page and must be witnessed by at least three (3) persons who should also sign the will (Art. 805, Civil Code of the Philippines). On the other hand, a holographic will does not require the presence of witnesses but is required to be entirely handwritten by the maker and to contain his signature and the date of its execution (Art. 810, Civil Code of the Philippines).

    As for the requirement of notarization, its name itself indicates that a notarial will must be notarized. The law requiring its notarization states that:

    “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” (Civil Code of the Philippines).

    While notarization is required in a notarial will, this is not the case for a holographic will. Unlike a notarial will, a holographic will is not subject to other forms, including notarization, to wit:

    “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” (Civil Code of the Philippines).

    It is important in the execution of wills that the formalities required by law be followed since a will’s validity is dependent on these legal formalities and requirements. Thus, going back to your situation, because you mentioned that your father’s will is not notarized, you must verify whether it is executed as a holographic will or a notarized will. If it turns out that your father made a holographic will, then the lack of notarization will not affect its validity. On the other hand, if it is in the form of a notarized will, then the lack of notarization in your father’s will makes it substantially defective, thus rendering it without legal effect.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

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    2 Comments

    1. Is it ok to be married twice in the Phils to the same person? I am planning to marry my GF, to whom I already have a daughter, in civil wedding and next to church wedding. If so, what will be our marriage date? Do I still need to register in the NSO both marriages? Thanks/

      • It is not unlawful to be married twice with the same person in the Philippines, however, the first marriage (provided the same is valid) as in civil marriage, the marriage contract that the couple executed during such wedding will be the controlling instrument, and there’s no more need to execute another contract during the subsequent church wedding, it will only be a religious traditional ceremony. The valid civil wedding goes with state’s requirement of a special contract of marriage, while if you intend to have a church wedding thereafter, it does not anymore require of you to fulfill the state’s requirement for marriage because the latter goes into the requirement of GOD to seal the divine covenant between you and your wife. Your child however, can be “legitimated” to become a legitimate child as though borne within the wedlock.