Notarial Will Philippines: The Complete Guide

Notarial Will Philippines: The Complete Guide

 

A Notarial Will in the Philippines is a type of Philippine Will which can be used to allow a non-compulsory heir to inherit the estate’s Free Portion or to Disinherit a Compulsory Heir.

It has several benefits:

  1. Several copies can be made
  2. Easy to revise prior to signing and notarization
  3. Several witnesses

I prefer Notarial Wills vs Holographic Wills because of these advantages which can be very helpful during Probate. (Probate is a requirement to use a Will.

This in-depth article discusses Notarial Will Requirements in the Philippines in-depth below.

What is a Philippine Notarial Will?

 

A Philippine Notarial Will is a notarized document determining who inherits and which properties they inherit.

Some of the common reasons to write a Will are:

  1. A Will can Disinherit someone
  2. A Will can give a Non-Compulsory Heir an inheritance
  3. A Will and Probate while the Testator is alive can avoid problems with the Heirs fighting in court after the Testator has passed.

Please note –

Consult a lawyer if you are Disinheriting someone.

Also consult a lawyer if you are giving a Non-Compulsory Heir an inheritance from the Free Portion.

There are very strict rules on how to Disinherit and also very strict calculations on what the Free Portion is. If these are not followed, then your Heirs can spend years fighting in court.

Why is a Philippine Will Needed?

 

A Philippine Will is done to disinherit a Compulsory Heir, give a Non Compulsory Heir (such as a Common Law Partner or girlfriend) an Inheritance or assign a specific property to someone.

These objectives can only be enforced through a Will.

These topics fall under a Notarial Will’s Substantive Requirements.

A Notarial Will’s Substantive Requirements mean the content of the Will  – basically, to whom an Inheritance is given.

I’ll discuss 3 common Substantive Issues: Disinheritance, providing an Inheritance to a Non-Compulsory Heir and assigning specific property to an Heir.

Notarial Will vs Holographic Will: What is the difference?

 

The main differences between a Notarial Will vs a Holographic Will is that a Notarial Will is notarized and has Witnesses while a Holographic Will is completely handwritten and can be kept a secret (among other things – it is not really that simple).

A lot of people seem to think that a Holographic Will vs Notarial Will is easier to do. They seem to like that it doesn’t have to be notarized, doesn’t need witnesses and can remain a secret.

But having a Will remain a secret because it may upset someone is a recipe for disaster because the Heirs have to Probate it in court for the Will to be used.

And Holographic Wills are often lost because there is generally only one copy and its not shared.

In addition, Holographic Will Requirements in the Philippines are so strict that it is easy for someone to make a mistake if they do it themselves, with no knowledge of the law.

I have never come across a successful Holographic Will made without a lawyer, not once.

Notarial Wills do a better job of ensuring that someone’s wishes are followed:

  1. Edits can be made easily
  2. Several copies can be created and easily shared so that your wishes are known
  3. It’s harder to deny that it exists because several copies can be created and given.

When I compare a Holographic Will vs Notarial Will I find that Notarial Wills are just far better in terms of protecting your wishes.

Notarial Will Substantive Requirements (Philippines)

 

Disinheritance Philippines: How do I disinherit someone in the Philippines?

 

Disinheritance in the Philippines can only be done through a probated Will following Philippine Succession law. Following these laws are what I mean by saying that a Will must comply with the substantive requirements of Notarial Wills.

Disinheritance cannot be accomplished any other way.

Let’s take that one at a time.

First, Disinheritance requires a Will.

A verbal disinheritance is not enforceable.

A video message is not enforceable.

Only a valid Will can disinherit someone.

Second, a Philippine Will must be Probated which means that it must go through a court case before it can be enforced.

A court case proves the Philippine Will.

It is a requirement before the Will can be used.

Without court, the Philippine Will cannot be used.

Third, Philippine Succession Law must be followed.

There are specific grounds to disinherit someone.

The grounds are very limited – you cannot Disinherit someone just because you feel like it.

There are different grounds depending on whether the person you are disinheriting is a child, a parent or a spouse.

Some examples (but not all) of when you can Disinherit someone are when:

  1. When the person has been found guilty of an attempt on your life;
  2. When the person has accused you of a crime which carries imprisonment of 6 years or more and the accusation has been found to be false;
  3. When the person has used fraud, intimidation or violence to force you to change your Will;
  4. Some others which are also very grave. The full list of Disinheritance grounds in the Philippines can be found here. https://lawyerphilippines.org/disinheritance/

Furthermore, you must prove each of these accusations and support it by the kind of evidence accepted by Philippine courts.

Common Law Marriage Inheritance: How can a Common Law Partner in the Philippines Inherit?

 

Yes, a Common Law Philippine Partner can inherit from you but only through a Will as he/she is not a Compulsory Heir.

A Compulsory Heir is someone who whom the Law reserves a share of the estate.

Because a Common Law Partner is not nor a compulsory heir, a Will is the only way that he/she is designated an inheritance.

A Will secures an inheritance for the Common Law Partner

A Common Law Partner may otherwise be deprived of an inheritance.

Remember also –

For your Common Law Partner to inherit, the Will must go through Probate for it to be used.

The Will should go through Probate while the Testator (the person making the Philippine Will) is still alive since he can attest to the facts.

Probating while the Testator is alive also protects his Common Law Partner and prevents his family (if there is a first family) from fighting.

Another thing to remember –

A Common Law Partner can only inherit the Free Portion.

The Free Portion is the property left over after all the Compulsory Heirs have been given their Inheritance.

If a Will does not comply with the laws on Compulsory Heirs or gives a Compulsory Heir less than his share, the Will can be challenged.

These types of situations are complex and it’s advisable to hire a lawyer – only a lawyer can inform you as to the laws concerning what you can give to a Non-compulsory heir, thus ensuring that whatever you do is executable.

Other Reasons: How can I assign a specific Inheritance to a person?

 

A last common reason (although there are many others that we’ve come across in practice) is to assign specific properties to specific persons.

For example –

The Testator or the person making the Philippine Will might want to give the family home to his eldest son and give a vacation house to his daughter.

He might consider a Will to prevent them fighting over who gets the family home.

In this case, having a Philippine Will would prevent the family from fighting.

Again, I’d strongly advise that you consult a lawyer as only a lawyer would understand the complete Notarial Will Substantive Requirements and how to fully comply. Fully complying will mean that your Will can be executed and you wishes can be respected.

These are three common reasons for making a Will, but there are definitely many others.

Notarial Will Formal Requirements (Philippines)

 

Notarial Wills Requirements in the Philippines must comply with  substantive and formal requirements.

Substantive requirements are requirements I’ve discussed briefly above (yes, it can get way more complex) in situations such as Disinheritance and when a Common Law Spouse inherits.

Formal requirements on the other hand, deal with rules as to how the Notarial Will should be written.

Notarial Will Philippines: Formal Requirements

 

Aside from Notarial Will Substantive Requirements discussed above, there are also several formal requirements that must be complied with such as how many witnesses, how it should be signed and numbered, and various other technical requirements.

Notarial Will Formal Requirements are:

  1. Notarial Will Witness Requirements are that there are at least 3 witnesses
  2. It must be written document in a language known to the Testator
  3. It must be signed by the Testator or someone authorized by him at his express direction and the Witnesses on the left margin and at the end for the last page. All pages should be numbered correlatively.
  4. The Attestation must state the number of pages and that the Testator or the person authorized by him to sign and the Witnesses signed all pages in the presence of each other.
  5. The Notarial Will must be notarized and the Will Acknowledged.

Now, it is possible that a Will that has a defect can still be respected in court so long as examination of the Will itself can supply the information [G.R. 122880, April 12, 2006]

But remember that any deviation in the form of a Notarial Will can be cause the Will to be deemed invalid.

Presenting a defective Notarial Will can thus be a very long, very costly court case of uncertain outcome, especially if the Will is challenged by a hostile party.

You might say that everything else is complete, and the Attestation is just missing the number of pages.

But Wills have been overturned for this, so please, consult a lawyer when you make a Will since the details are so vitally important.

(And Wills are so much more complicated than people expect.)

What should I write in a Notarial Will?

 

A Notarial Will should contain your properties and to whom they should be given. It must at all times follow Substantial and Formal Requirements.

It should list:

  • Your properties
  • Your Heirs
  • The desired division

A lawyer should check to make sure that Philippine Notarial Will requirements are followed.

Again, please do get a lawyer for this.

And don’t just ask him to make a Will – ask him if your circumstances need it.

I’ve never come across a self-prepared Will that actually was useable, not one.

What is the cost of a Notarial Will (Philippines)?

 

A Notarial Will cost is primarily a lawyer’s fees, notarial fees and probate cost.

People mostly focus on lawyer’s fees to prepare a Will. They try to save on costs.

Then they find out that they cannot use the Will later on.

My advice would be to find a lawyer who has deep experience in Succession Law in the Philippines (Inheritance Law basically).

He may charge more – but he will certainly save you money in the long term because the Will can be used.

Most wills that I have come across that were incorrectly made could not be used, so hire the best for a Will.

Additionally –

Many people discount Probate costs.

However, an un-Probated Philippine Will cannot be used.

And an un-Probated Philippine Will can cause families to fight it out, especially if the Testator or the person who made the Will is deceased. (It is much easier to Probate a Will when the Testator is alive and helps to ensure that there are no arguments.)

So, consider the Philippine Probate Cost when you decide to make a Will.

Probate costs are:

  • Lawyer’s fees
  • Court fees and document preparation fees
  • Filing fees which are 2% of the net estate

Yes, that’s correct.

Probate Costs in the Philippines are about 2% of the estate.

So, if an estate is Php 100 Million, you need to pay 2 Million just to file the case.

Because Wills are costly and must be probated before they can be used, consider speaking to a lawyer first.

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