Holographic vs Notarial Will
Quick answer
The Civil Code allows two kinds of will. A holographic will is written, dated and signed entirely by the testator's own hand, with no witnesses and no notary. A notarial will may be typed, but it needs three or more witnesses, signatures on every page, an attestation clause and an acknowledgment before a notary public. Both must be in writing, in a language the testator knows, and both must be allowed by a court in probate before they can pass property.
In Gaspi v. Pacis-Trinidad (2020), the Supreme Court put it simply: "Wills may be notarial or holographic."
| Aspect | Holographic will | Notarial will | Legal basis |
|---|---|---|---|
| Who writes it | Entirely written by the hand of the testator (Art. 810). | May be typed. Like every will, it must be in writing and in a language or dialect the testator knows (Art. 804). | Article 810, Civil Code, Article 805, Civil Code |
| Signature | Signed by the hand of the testator (Art. 810). | Signed at the end by the testator, or by another person writing the testator's name in his presence and by his express direction (Art. 805). | Article 810, Civil Code, Article 805, Civil Code |
| Date | Must be dated by the hand of the testator (Art. 810). | Not among the formalities listed in Arts. 805 and 806. | Article 810, Civil Code |
| Witnesses | None needed (Art. 810). | Three or more credible witnesses, who sign in the presence of the testator and of one another (Art. 805). | Article 810, Civil Code, Article 805, Civil Code |
| Notary public | Not needed: the will "is subject to no other form" (Art. 810). | Must be acknowledged before a notary public by the testator and the witnesses (Art. 806). | Article 810, Civil Code |
| Page rules and attestation clause | None. | Every page except the last signed on the left margin, pages numbered in letters at the top, and an attestation clause stating the number of pages and how the will was signed (Art. 805). | Article 805, Civil Code |
| Changes after signing | Dispositions below the signature must be dated and signed (Art. 812); insertions, cancellations, erasures or alterations must be authenticated by the testator's full signature (Art. 814). | Arts. 805 and 806 set no special rule on later changes. A will may be revoked by a later will, a codicil or another writing executed as a will (Art. 830). | |
| Proof in probate | At least one witness who knows the testator's handwriting and signature; at least three if the will is contested; expert testimony if needed (Art. 811). | If not contested, one subscribing witness may be enough; if contested, all subscribing witnesses and the notary must be produced if present in the Philippines and not insane (Rule 76, Secs. 5 and 11). | |
| Problems seen in court | Doubt that the will and signature are in the testator's handwriting. In Codoy v. Calugay (1999), the case was sent back so the opponents could present their evidence. | Attestation clause without the number of pages or not signed by the witnesses, or a jurat instead of an acknowledgment (Azuela v. Court of Appeals, 2006). |
What does a holographic will need?
Article 810 sets only three requirements, all by the testator's own hand:
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.
The whole will has to be handwritten. A typed will with a handwritten signature is not holographic. Two more rules apply to changes. Article 812 says dispositions written below the signature must be dated and signed to be valid. Article 814 says any insertion, cancellation, erasure or alteration must be authenticated by the testator's full signature.
In Seangio v. Reyes (2006), the Court treated a handwritten deed of disinheritance as a holographic will because it was written, dated and signed by the father himself. It said that holographic wills, usually made by people who are not lawyers, "should be construed more liberally than the ones drawn by an expert".
What does a notarial will need?
Article 805 and Article 806 set strict formalities:
- signed at the end by the testator, or by another person writing the testator's name in his presence and by his express direction;
- attested and signed by three or more credible witnesses, in the presence of the testator and of one another;
- every page except the last signed on the left margin by the testator and the witnesses, and all pages numbered in letters at the top;
- an attestation clause stating the number of pages and how the will was signed; and
- an acknowledgment before a notary public by the testator and the witnesses.
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.
Article 809 forgives small defects in the attestation clause when the will was in fact executed in substantial compliance with Article 805. The Court has not stretched this far. In Azuela v. Court of Appeals (2006), it said a will whose attestation clause does not state the number of pages, or is not signed by the witnesses, or which has a mere jurat instead of an acknowledgment, "is fatally defective". In Lopez v. Lopez (2012), a will was not allowed because the attestation clause did not state the number of pages and the count in the acknowledgment did not match the will.
How is each proved in court?
No will passes property until a court allows it. Article 838 says no will "shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." The proof is different:
- Holographic will. Article 811 requires at least one witness who knows the testator's handwriting and signature to declare that the will and signature are his, and at least three such witnesses if the will is contested. In Codoy v. Calugay (1999), the Court held that this rule is mandatory: "The word 'shall' connotes a mandatory order." When the testator himself asks for probate while alive and no one contests it, his own statement that the will is in his handwriting is enough (Rules of Court, Rule 76, Section 12).
- Notarial will. If no one contests it, the court may allow it on the testimony of one subscribing witness (Rule 76, Section 5). If it is contested, all the subscribing witnesses and the notary must be produced, if they are in the Philippines and not insane (Section 11).
Is one form better than the other?
The law does not prefer one form. A holographic will is simpler to make but depends on proof of the handwriting later. A notarial will takes more steps but has witnesses and a notary who can testify. Which form fits depends on the person's situation. See Holographic will requirements and Notarial will requirements. If there is no valid will, the estate passes by law: see Inheritance without a will and the inheritance topic.
For an overview of wills and probate, see wills and probate in the Philippines.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Maria writes her whole will by hand, dates it and signs it. That meets Article 810 without witnesses. Later she writes a line below her signature leaving her ring to a niece. That line must also be dated and signed by her, or it is not a valid disposition (Article 812).
Rogelio has a lawyer type a four-page will. He signs at the end and on the left margin of pages one to three, and three witnesses do the same in his presence and in each other's presence. The pages are numbered in letters, the attestation clause states four pages, and all of them acknowledge the will before a notary. That follows Articles 805 and 806.
Nena types her will, signs it and has it notarized, but no witnesses sign. It is not holographic, because it is not handwritten, and it is not a valid notarial will, because it lacks the three witnesses.
When do you need a lawyer?
Talk to a lawyer when making a notarial will, because missing a formality can make the whole will fail in probate, and when a will has to be probated or contested. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.
Which provisions does this answer rest on?
Frequently asked questions
What is the difference between a holographic and a notarial will?
A holographic will is entirely written, dated and signed by the testator's own hand and needs no witnesses or notary (Article 810). A notarial will may be typed, but it must be signed by three or more witnesses, have an attestation clause, and be acknowledged before a notary public (Articles 805 and 806).
Is a typed will with a handwritten signature a holographic will?
No. Article 810 requires a holographic will to be entirely written, dated and signed by the hand of the testator. A typed will must meet the formalities of a notarial will.
Does a notarial will need a date?
A date is not among the formalities listed in Articles 805 and 806 for a notarial will. For a holographic will, the date written by the testator's own hand is required by Article 810.
Which will is easier to make?
A holographic will has fewer formalities: the testator only has to write, date and sign it by hand. A notarial will needs three witnesses, signatures on every page, an attestation clause and a notary. Both still have to be proved in court before they can pass property.
Can a holographic will be made abroad?
Yes. Article 810 says a holographic will may be made in or out of the Philippines. Article 815 also allows a Filipino abroad to use the forms of the country where he or she is.
Does a will take effect without going to court?
No. Under Article 838, no will passes real or personal property unless it is proved and allowed in court under the Rules of Court. This applies to both kinds of will.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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