Notarial Will in the Philippines: Requirements
Quick answer
A notarial will is any will that is not a holographic (entirely handwritten) will. Under Articles 805 and 806 of the Civil Code, the testator must sign it at the end and on the left margin of every page except the last, three or more witnesses must sign it in front of the testator and of each other, the pages must be numbered, an attestation clause must state the number of pages and how the will was signed, and the testator and witnesses must acknowledge it before a notary public. Missing one of these can be fatal in probate.
What must every will have?
A will is an act by which a person, "with the formalities prescribed by law", controls to a certain degree how his estate is disposed of after death (Article 783). Every will, notarial or holographic, must be in writing and in a language or dialect the testator knows (Article 804). The testator must be at least eighteen (Article 797) and of sound mind (Article 798). The will cannot be made through an agent (Article 784), and two persons cannot make a joint will in one document (Article 818).
What does Article 805 require?
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.
As a checklist:
- Signature at the end by the testator, or his name written by another person in his presence and at his express direction.
- Three or more credible witnesses who sign in the presence of the testator and of one another.
- Every page signed on the left margin (except the last) by the testator and the witnesses.
- Pages numbered in letters on the upper part of each page.
- An attestation clause that states the number of pages and the facts of signing.
The term is also explained in notarial will. For a notarial will and a holographic will side by side, see holographic vs notarial will.
Does it have to be notarized?
Yes. Article 806 says:
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.
The acknowledgment is a separate step from the attestation. In Kucskar v. Sekito (2020), the Supreme Court explained that the attestation is the act of the witnesses certifying how the will was signed, while the acknowledgment is the testator going to a competent officer and declaring that the will is his own act. The Court said the rule on substantial compliance for the attestation clause "cannot be applied to the requirement of acknowledgment under Art. 806."
Who can be a witness?
Under Article 820, any person of sound mind, eighteen or older, not blind, deaf or dumb, and able to read and write. Article 821 disqualifies anyone not domiciled in the Philippines and anyone convicted of falsification of a document, perjury or false testimony.
A witness may receive a gift under the will, but under Article 823 that gift (or a gift to the witness's spouse, parent or child) is void unless there are three other competent witnesses.
What if the will has small mistakes?
Article 809 allows some flexibility:
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.
The Supreme Court has read this narrowly. In Azuela v. Court of Appeals (2006), the attestation clause did not state the number of pages and was not signed by the witnesses, and the will had a jurat instead of an acknowledgment. The Court said each of these was a fatal defect and that "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. The acknowledgment said seven pages, but the will had eight. The Court said the purpose of the page count is to guard against pages being added or removed. The discrepancy could not be explained by examining the will itself, only by outside evidence, so the defect was not excused. The Court denied the petition.
What happens after the testator dies?
The will must still be allowed by a court before it can pass any property (Article 838). See the Article 838 page. The testator may also ask a court to allow it while still alive. A will can be revoked by the testator at any time before death (Article 828).
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.
Rogelio types a four-page will. He signs at the end and on the left margin of pages one to three. Three witnesses sign the same way, in his presence and in each other's. The pages are numbered "Page One of Four" and so on. The attestation clause says the will has four pages and is signed by the witnesses. Rogelio and the witnesses then acknowledge it before a notary public. This follows Articles 805 and 806.
Same will, but the witnesses sign only the page margins and not the attestation clause. As in Azuela, a court can refuse to allow it.
Lorna and Danny, a married couple, want to sign one will together. Article 818 does not allow it. Each must make a separate will.
When do you need a lawyer?
A single missing step can make a notarial will fail in probate. Talk to a lawyer before signing a will, if you are named as a witness or executor, or if you want to contest a will. A will also cannot take away the shares the law reserves for compulsory heirs: see Legitime shares. For a will written entirely by hand, see Holographic will requirements.
If you cannot afford a lawyer, see Free legal help in the Philippines. For the full rule, see the Article 805 page.
Which provisions does this answer rest on?
Frequently asked questions
How many witnesses does a notarial will need?
Three or more credible witnesses. Article 805 of the Civil Code says they must attest and sign the will 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. A holographic will is different: Article 810 says it is subject to no other form than being written, dated and signed by the testator's hand.
What is an attestation clause?
It is the part of the will signed by the witnesses that states the number of pages, that the testator signed the will and every page in their presence, and that they signed the will and all its pages in the presence of the testator and of one another (Article 805).
Is a will invalid if the attestation clause does not state the number of pages?
It can be refused probate. In Azuela v. Court of Appeals (2006) and Lopez v. Lopez (2012), the Supreme Court held that a missing page count in the attestation clause was a fatal defect that could not be cured by the rule on substantial compliance.
Who can be a witness to a will?
Under Article 820, any person of sound mind, eighteen years or older, not blind, deaf or dumb, and able to read and write. Article 821 disqualifies persons not domiciled in the Philippines and those 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. Each spouse must make a separate will.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
Was this page helpful?