My parents used to own a farmland in our province and my eldest brother claimed that it was given to him by our parents. He presented the alleged will of my parents executed sometime in 2006. My parents died in 2007, and we came to know of the will only this year, 2016. I obtained a photocopy of the said will from him. I immediately noticed my mother’s thumb mark above her name and my father’s signature was present. However, there were no witnesses and it was not even notarized. Is this will valid?
The formal requirements of wills are provided under Article 805 of the New Civil Code of the Philippines, which states that:
“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 on 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.
“If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.”
Another requirement under Article 806 of the same law is the will must be acknowledged before a notary public by the testator and witnesses.
In your case, the will in the possession of your eldest brother is not valid for failure to comply with the formalities as required by law. The presence of witnesses to the will and notarization are the essential requirements that were not complied with. Consequently, the failure to comply with the formalities is a ground for disallowance under No. 1, Article 839 of the New Civil Code of the Philippines. Further, under Section 9 (a), Rule 76 of the 1997 Rules of Court, the will shall also be disallowed if not executed and attested as required by law.
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.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org