Wills and Probate in the Philippines

Article 783 of the Civil Code defines it:

"With the formalities prescribed by law" is the key phrase: a will that does not follow the required form fails. "To a certain degree" points to the legitime, explained below.

A person at least eighteen years old (Article 797) who is of sound mind when making it (Article 798). Making a will is strictly personal: it cannot be left to a third person or done through an agent (Article 784). Every will must be in writing, in a language or dialect the testator knows (Article 804). Two or more persons cannot make a will jointly or in the same instrument, so a husband and wife each need a separate will (Article 818).

Three things, all by the testator's own hand. Article 810 says:

A typed will with a handwritten signature is not holographic. Additions below the signature must also be dated and signed (Article 812), and any insertion, cancellation, erasure or alteration must be authenticated by the testator's full signature (Article 814). See Holographic will requirements and holographic will.

Every will that is not holographic follows Article 805 and Article 806:

1. signed at the end by the testator, or by another person writing the testator's name in his presence and by his express direction;
2. three or more credible witnesses, who sign in the presence of the testator and of one another;
3. 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;
4. an attestation clause stating the number of pages and how the will was signed; and
5. acknowledgment before a notary public by the testator and the witnesses.

Small mistakes in the attestation clause may be forgiven under Article 809, but the Supreme Court has kept this narrow. In Azuela v. Court of Appeals (2006), a will whose attestation clause did not state the number of pages, or was not signed by the witnesses, or which had only a jurat instead of an acknowledgment, was held fatally defective. In Lopez v. Lopez (2012), probate was denied for a missing page count. In Kucskar v. Sekito (2020), the Court said substantial compliance cannot be applied to the notary's acknowledgment.

A witness must be of sound mind, at least eighteen, not blind, deaf or dumb, and able to read and write (Article 820). See Notarial will requirements, notarial will and, side by side, Holographic vs notarial will.

Yes. Article 810 says a holographic will may be made in or out of the Philippines. Article 815 also allows a Filipino abroad to make a will in the form allowed by the law of the country where he or she is, and that will may be probated in the Philippines.

Only what is left after the legitime. The legitime is the part of the estate the law reserves for the compulsory heirs listed in Article 887, such as legitimate children and descendants, the surviving spouse, children born outside marriage and, when there are no legitimate children or descendants, the legitimate parents. Article 904 says the testator cannot deprive compulsory heirs of their legitime, except in cases expressly specified by law, such as a valid disinheritance. The rest, the free portion, can be left to anyone.

See legitime, How is inheritance divided under a will?, the legitime shares table and Can parents disinherit a child?

Article 830 lists the only ways:

The article goes on to a third way: burning, tearing, cancelling or obliterating the will with the intention of revoking it, by the testator himself, or by another person in his presence and by his express direction.

Because Article 838 says so:

Probate is the court case that proves and allows a will. In Seangio v. Reyes (2006), the Supreme Court said that because the law favors testacy over intestacy, "the probate of the will cannot be dispensed with." In Gaspi v. Pacis-Trinidad (2020), it said probate looks only at the will's extrinsic validity, such as whether it was made with the required formalities, and not at whether its provisions are valid, unless there are exceptional circumstances. Article 839 lists the grounds for disallowing a will, such as missing formalities, insanity, force or threats, undue influence, and fraud.

A few points about the process:

• While alive. The testator may ask the court to allow his or her own will (Article 838).
• After death. Under Rule 76 of the Rules of Court, the executor, a devisee or legatee named in the will, or any other person interested in the estate may file the petition. Under Rule 75, Section 2, whoever has custody of the will must deliver it to the court or to the named executor within twenty days after learning of the death.
• Proof of a holographic will. At least one witness who knows the testator's handwriting and signature must declare that the will and signature are his or hers; if the will is contested, at least three (Article 811). In Codoy v. Calugay (1999), the Court held this rule mandatory.
• Final as to form. Subject to appeal, an allowed will is conclusive as to its due execution (Article 838).

See probate. Court fees, the court that hears the case and the length of a probate case are not covered on this page.

Then the estate passes by intestate succession: the law sets who inherits and how much. If there is no will and no debts, the heirs may in some cases divide the estate without going to court. See Who inherits if there is no will?, the intestate shares table, Extrajudicial settlement of estate and the inheritance topic.

These are made-up examples to show how the rules work. They are not advice for any real case.

Lorna writes her whole will by hand in a notebook, dates it and signs it. No one else is present. In form, it is a valid holographic will. After she dies, her family must still file it for probate, and witnesses who know her handwriting must identify it.

Ramil has his will typed and signed by three witnesses, but the attestation clause does not state how many pages the will has. Under Azuela and Lopez, this defect can be fatal, and the will may be denied probate. His estate would then pass as if he left no will.

Spouses Edgar and Nena want one will leaving everything to each other. Article 818 does not allow a joint will, so each must make a separate one. Neither can leave out their children's legitime.

Get legal help if you want to leave property unequally among your heirs, if you plan to disinherit someone, if you keep a will of someone who died, or if you want to oppose a will in probate. A lawyer can check the form of the will and the shares of the heirs. If you cannot afford a lawyer, see Free legal help in the Philippines.