Holographic Will Philippines

Holographic Will Philippines

 

A Holographic Will (Philippines) is a handwritten document signed and dated by the Testator which determines who inherits and what they inherit.

Holographic Will Requirements are that:

  1. The Will follows laws on Compulsory Heirs, Disinheritance and Philippine Laws on Succession (there are specific rules as to how much can be given to an Heir, how to disinherit among other rules that must be followed as otherwise the Will is invalid)

 

  1. The Will follows Philippine Jurisprudence and Law on how Holographic Wills should be written (there are more requirements than it just being handwritten).

 

  1. There must also be Probate of Holographic Will in the Philippines, which is a court case needed so that the Will can be used.

People prefer a Holographic Will vs Notarial Will because they think that it is easier to make and can be kept a secret.

But generally, what happens instead is their Holographic Will is not followed at all because it is defective and because it is not shared.

It is generally best to consult a lawyer when you make a Will, considering how complex it really can be.

What are Holographic Will Requirements (Philippines)?

 

A Holographic Will must be handwritten, signed and dated by the Testator but there are several other lesser known legal requirements.

Here are some Holographic Will Requirements (Philippines) [Art 804, 810-814 Family Code Philippines]:

  1. Must be signed, dated and handwritten by the Testator
  2. Should be in a language known to the Testator
  3. A witness is required when the Holographic Will is uncontested and 3 witnesses are required when the Holographic Will is contested. They should be familiar with his handwriting.
  4. The Testator must sign and date any additional item in how a property is disposed if added below his signature.
  5. Proceeding dispositions without a date are dated by the next disposition with a date.
  6. Any erasure or edit must be validated by the Testator’s full signature.

These items are often overlooked by people who do a DIY Holographic Will.

People often only remember that a Holographic Will can be completely handwritten without notarization or Witnesses.

People then make Holographic Wills that fulfill some but not all of the legal requirements often leading to an Invalid Holographic Will.

Holographic Will Requirements: Substantive Issues

Philippine Holographic Will Requirements also include complying with not just the fact that it should be dated, signed and completely handwritten but also comply with how to Disinherit or allocate shares to Compulsory Heirs for which there are strict laws.

For example, there are specific grounds which you must cite when you Disinherit someone.

Additionally, these specific grounds change depending on whether you are Disinheriting a Child, a Parent or a Spouse.

Let’s list the grounds used to Disinherit a Child:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

These are the grounds under which Disinheritance of a Child or Descendent may be allowed.

The ground must be cited and Evidence presented for the Disinheritance to be valid when the Will is proven in Court. [Art 916, Family Code of the Philippines]

In G.R. 140371 2006, a handwritten document disinheriting the deceased’s eldest son explained why this eldest son was being disinherited.

The Supreme Court considered that what was listed was “a form of maltreatment” and so allowed the disinheritance to stand.

If nothing had been listed as evidence, then it is highly possible that the Disinheritance would not have been valid.

Some people may write a Will and then omit an Heir, assuming that this means that the Heir gets nothing.

This is called Preterition.

Some assume that omitting an Heir is the same as Disinheriting him.

However, that is not the case. Preterition does not Disinherit the Heir – only a Valid Disinheritance citing evidence as allowed by Philippine Succession Law would do that.

This tends to trip people up.

And this is just ONE example of a substantive issue that can cause confusion.

Another frequent issue is that there are also Philippine Inheritance Law Requirements on Compulsory Heirs that must be complied with (without which, the entire Will may be Invalid). 

This is usually why I strongly suggest that you work with a lawyer when writing any will – a Holographic Will and a Notarial Will both can be complex.

Holographic Will vs Notarial Will

 

The main different between a Holographic Will vs Notarial Will is that it must be handwritten and does not require Notarization or Witnesses (a Notarial Will does).

Notarial Will Requirements in the Philippines also include:

  • At least 3 Witnesses who are not beneficiaries
  • Witness and Testator Signatures on the left margin of every page and at the end.
  • The Will must be Acknowledged and Notarized
  • The Attestation of the Will must state the number of pages and be numbered correlatively
  • It must be in a language known to the Testator.

As you can see, there are differences in form between a Holographic Will vs Notarial Will.

And although Holographic Will Requirements seem to be less complicated, Philippine jurisprudence shows that they are quite specific.

A Holographic Will can be deemed invalid quite easily when a seemingly “little” requirement is forgotten.

So, even if it “just” a Holographic Will, it is always best to consult a lawyer.

Probate of Holographic Will Philippines: Process, Timeline and Costs 

 

What is Probate?

 

The Probate of your Holographic Will in the Philippines is a court case that proves the Will in court.

Probate must be done to use the Will.

Probate confirms that the Will was created by the Testator of his own Free Will and that what is presented is the entire document.

Probate presents Witnesses testifying to this fact.

Probate then allows the Will and – and the special considerations that you might have regarding Disinheritance and Common Law Partners – to be affected instead of default Inheritance shares as determined by Philippine law.

What are the Requirements for the Probate of a Holographic Will (Philippines)?

 

Probate Requirements in the Philippines are that the Original Holographic Will is presented, that at least 1 witness is presented, that you pay the filing fee of around 2% of the total net estate and that various legal requirements are complied with on the lawyer’s side.

(And yes, on the lawyer’s side it is far more complicated since there are requirements regarding service, publication, and other items to attend to.)

Probate of Holographic Will Philippines: Original Will should be presented

 

In Probate of Holographic Will in the Philippines, the court deems the document itself a crucial piece of Evidence.

In G.R. No. L-58509 December 7, 1982 the Supreme Court held that ‘in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.

Although it went on to say that possibly a photocopy would do, it is very possible that your case would be brought to the Supreme Court if so.

Bring the original, as it will save you money and time in the long run.

The second requirement is that a Witness is presented.

Probate of Holographic Will Philippines: Do you need a Witness?

 

Yes, you will need at least 1 Witness for the Probate of a Holographic Will in the Philippines.

Art 811 of the Family Code states:

In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

So, you will need only 1 witness if the Will is uncontested.

But you will need 3 witnesses if the Will is contested.

Ideally, they should be familiar with the handwriting of the Testator but you can also call an expert Witness (a Handwriting expert) if so needed.

Probate of Holographic Will Philippines: How much does Philippine Probate cost?

 

Philippine Probate costs are composed of the lawyer’s fees, publication fees, document preparation fees and filing fees.

If the case is contested, lawyer’s fees will depend on how long and how much work is done. Expect contested cases to be expensive.

If the case is not contested, lawyer’s fees will depend on where the case is being tried and how many years of experience your lawyer has.

Publication fees depend on which newspaper you are raffled to.

A court will usually raffle your case amongst several preapproved newspapers – it’s entirely up to chance.

Document preparation fees may be photocopying, notarization, gathering of documents, properly certifying those documents and picking up or filing documents. The Philippine system is very manual and decentralized so it can take a lot of time and legwork just to get the document.

One of the most expensive fees is the filing fee for Probate. Expect Philippine Probate Filing Fee costs to be about 2% or so of the net estate.

So, if the inheritance is about 100M, you would need to pay 2M simply to file the case.

Many people are unaware that their Wills require Probate and also don’t realize that Philippine Probate Filing Fees are that much.

This is why it is really best to consult with a lawyer regarding a Will.

A lawyer should explain to you what a Will is and how it is used so that you can make the right decision.

Probate of Holographic Will: How long does Philippine Probate take?

 

Philippine Probate is shortest when the Will is not contested and can take just a few years. However, Philippine Probate can take decades if the Will is contested.

The shortest fastest Probate cases are those where the Testator or the person who created the Will brings the Probate to court. Since the Testator can verify by his Testimony that the Notarial or Holographic Will is truly his Will, the burden of proof is less. The Testator can also potentially stop people from contesting the Will.

Because of this, I highly suggest –

Bring your Holographic Will to Court and do the Probate while you are alive.

It forestalls so many problems and is cheaper, easier and faster.

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