Philippine law recognizes two kinds of wills. A notarial will must be in writing, signed by the testator at the end and on every page, attested and signed by at least three credible witnesses, and acknowledged before a notary public. A holographic will must be entirely handwritten, dated, and signed by the testator, with no witnesses required. Either way, a will must go through probate in court before it can transfer property.
A will lets you decide who receives your property when you die, instead of leaving everything to the default rules on intestate succession. But Philippine law is strict about how a will must be made, and a single missing formality can render it void. This commentary explains the two kinds of wills, their requirements, the limits the law imposes, and why every will must be probated.
Two Kinds of Wills
The Civil Code recognizes two forms of wills: the notarial (or attested) will and the holographic will. Both are valid if their respective formalities are met. The difference lies in how each is executed — one requires witnesses and a notary, the other is written entirely by the testator’s own hand.
Requirements of a Notarial Will
Under Articles 804 to 806 of the Civil Code, a notarial will must:
- Be in writing and in a language or dialect known to the testator;
- Be signed by the testator at the end (or by another person in his presence and by his express direction);
- Be attested and signed by at least three credible witnesses in the presence of the testator and of one another;
- Have the testator and witnesses sign each and every page on the left margin, with the pages numbered correlatively;
- Contain an attestation clause stating the number of pages and that the formalities were observed; and
- Be acknowledged before a notary public by the testator and the witnesses.
These requirements are strictly applied, and a defect — too few witnesses, an unsigned page, a fatally defective attestation clause — can void the will.
Requirements of a Holographic Will
A holographic will is far simpler. Under Article 810, it must be entirely written, dated, and signed by the hand of the testator himself. It requires no witnesses and no notarization, and it may be made inside or outside the Philippines. Its simplicity, however, is also its risk: if any part is typed, if the date or signature is missing, or if the handwriting can be questioned, the will can be invalidated or is easier to challenge as a forgery.
What a Will Cannot Do: the Legitime
A Filipino cannot freely give away the entire estate. The law reserves a portion, called the legitime, for compulsory heirs — principally the children and descendants, the surviving spouse, and in some cases the parents. A testator may freely dispose of only the free portion that remains after the legitime. A compulsory heir also cannot be disinherited except for specific causes set by law and expressly stated in the will.
Probate: No Will Transfers Property Until the Court Allows It
Even a perfectly executed, uncontested will does not transfer property on its own. Under Article 838 of the Civil Code, no will passes real or personal property unless it is proved and allowed (probated) in accordance with the Rules of Court. In probate, the court examines the will’s due execution and the testator’s capacity. Probate may be done during the testator’s lifetime or after death, but it cannot be skipped.
Common Mistakes and Practical Tips
The most frequent errors are using a language the testator does not actually understand, having fewer than three witnesses, leaving a page unsigned, and making a holographic will that is partly typed or undated. Naming a witness who is also a beneficiary can cause that person to forfeit the gift. Keep the original will in a safe, known place, and for a notarial will especially, seek a lawyer’s help — the cost of getting the formalities wrong is a void will.
Frequently Asked Questions
Do I need a lawyer to make a will? Not strictly. A holographic will can be entirely handwritten by you with no lawyer and no witnesses. But a notarial will has strict formalities, and a lawyer helps ensure the will is valid and respects the limits set by the legitime.
Is a handwritten will valid in the Philippines? Yes. A holographic will is valid if it is entirely written, dated, and signed in the testator's own hand. It needs no witnesses and no notarization, but it must still go through probate before it can transfer property.
Can I leave everything to whomever I want? No. Philippine law reserves the legitime for compulsory heirs such as children and the surviving spouse. You may freely dispose of only the free portion of your estate; the rest is reserved by law.
Does a will have to go through court? Yes. Under Article 838 of the Civil Code, no will transfers property until it is probated and allowed by the court, even if no one contests it.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you want to prepare a will that is valid and honors the rights of your heirs, our firm can help you draft and execute it correctly. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.