Article 805 of the Civil Code: Notarial will formalities
Status: In force
What does Article 805 say?
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 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.
What does it mean in plain language?
Article 805 of the Civil Code sets the formalities for every will that is not handwritten by the testator: the typed or "notarial" will. The testator signs at the end and on the left margin of every page except the last; three or more witnesses sign the same way in front of the testator and of each other; the pages are numbered in letters; and an attestation clause states the number of pages and how the will was signed. Article 806 then requires the will to be acknowledged before a notary public.
A will is a document by which a person, called the testator, controls to a certain degree how his or her property is given out after death, with the formalities set by law (Article 783). Making a will is strictly personal: it cannot be left to a third person or done through an agent (Article 784). Persons under eighteen cannot make a will (Article 797).
How does it work in real life?
Rogelio's four-page will
Rogelio has a four-page will typed. He signs at the end and on the left margin of pages one to three. Three witnesses sign the same way, in front of Rogelio and of each other. The pages are numbered "Page One of Four" and so on. The attestation clause says the will has four pages and describes the signing, and the witnesses sign it. Rogelio and the witnesses then acknowledge the will before a notary public. The will follows Articles 805 and 806.
Witnesses who signed only the margins
Same will, but the witnesses signed only the page margins and not the attestation clause. In Azuela, a will with this defect was held fatally defective and probate was denied.
A joint will
Spouses Ernesto and Linda want one will for both of them. Article 818 does not allow two people to make a will jointly or in the same document. Each must make a separate will.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- A will that is handwritten entirely by the testator follows different rules: see Article 810 on holographic wills.
- No will passes property until a court allows it in probate. See Article 838.
- A will cannot take away the legitime of the compulsory heirs. See Article 887 and legitime shares.
- If there is no valid will, the rules of intestate succession apply. See who inherits if there is no will?
- Notarial fees and the notary's own rules (IDs, notarial register) are not covered on this page.
- For free or low-cost legal help, see where to find legal help.
- For the requirements as questions and answers, see notarial will requirements. For the two forms of will side by side, see holographic vs notarial will. The term is explained in notarial will.
What does Article 805 say?
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 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.
What is the checklist for a notarial will?
Reading Articles 804 to 806 together:
- In writing, in a language or dialect the testator knows (Article 804).
- Signed at the end by the testator, or by another person who writes the testator's name in his presence and by his express direction.
- Three or more credible witnesses who sign in the presence of the testator and of one another.
- Every page except the last signed on the left margin by the testator (or the person signing for him) and by the witnesses.
- Every page numbered correlatively in letters on the upper part ("Page One", "Page Two"...).
- An attestation clause stating the number of pages, that the testator signed the will and every page in front of the witnesses, and that the witnesses signed in front of the testator and of one another. If the witnesses do not know the language of the clause, it is interpreted to them.
- Acknowledgment before a notary public by the testator and the witnesses (Article 806).
Special rules apply when the testator is deaf or deaf-mute (Article 807) or blind (Article 808: the will is read to the testator twice, once by a subscribing witness and once by the notary public).
Why is the notary's acknowledgment required?
Article 806 says:
Every will must be acknowledged before a notary public by the testator and the witnesses.
In Kucskar v. Sekito (2020), the Supreme Court explained the two separate steps. The attestation is the act of the three or more witnesses who certify that the will was executed before them, and how. The acknowledgment is the act of the testator going to a competent officer and declaring that the will is his or her own act. The Court said that even if substantial compliance could save a defect in the attestation clause under Article 805, it cannot be applied to the acknowledgment required by Article 806.
Which defects have made a will fail?
- In Azuela v. Court of Appeals (2006), the Court said a will whose attestation clause does not state the number of pages is fatally defective; a will whose attestation clause is not signed by the witnesses is fatally defective; and a will with only a jurat instead of an acknowledgment is fatally defective. "Any one of these defects is sufficient to deny probate."
- In Lopez v. Lopez (2012), the attestation clause did not state the number of pages, and the acknowledgment gave a page count that did not match the will. The Court said the purpose of the page count is to guard against pages being added or removed, and the gap could not be explained by looking at the will itself. Probate was denied.
Article 809 allows some room for errors in the attestation clause:
In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.
In Azuela, the Court limited this to defects that can be supplied by examining the will itself. The number of pages and whether everyone signed in each other's presence must substantially appear in the attestation clause.
Who may be a witness?
Article 820 allows any person of sound mind, eighteen years old or older, not blind, deaf or dumb, and able to read and write. Article 821 disqualifies persons not domiciled in the Philippines and persons convicted of falsification of a document, perjury or false testimony. Under Article 823, a gift in the will to a witness, or to the witness's spouse, parent or child, is void unless there are three other competent witnesses.
Frequently asked questions
How many witnesses does a notarial will need?
Article 805 requires three or more credible witnesses, who sign in the presence of the testator and of one another.
Must every page of a will be signed?
Yes. Article 805 says the testator and the witnesses sign each and every page except the last, on the left margin. The will is signed at the end by the testator and the witnesses.
What must the attestation clause say?
Article 805 says it must state the number of pages of the will, that the testator signed the will and every page in the presence of the witnesses, and that the witnesses signed the will and all its pages in the presence of the testator and of one another.
Does a notarial will have to be notarized?
Yes. Article 806 says every will must be acknowledged before a notary public by the testator and the witnesses. In Azuela v. Court of Appeals (2006), a will with a mere jurat instead of an acknowledgment was held fatally defective.
Who can be a witness to a will?
Article 820 says any person of sound mind, eighteen years old or older, not blind, deaf or dumb, and able to read and write. Article 821 disqualifies persons not domiciled in the Philippines and persons convicted of falsification of a document, perjury or false testimony.
Can a husband and wife make one joint will?
No. Article 818 says two or more persons cannot make a will jointly or in the same instrument.
Does a small mistake in the attestation clause void the will?
Not always. Article 809 says defects in the form of attestation do not invalidate the will if it is proved that the will was executed and attested in substantial compliance with Article 805, absent bad faith, forgery, fraud or undue influence. The Court has limited this to defects that can be supplied by looking at the will itself.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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