NOTARIAL WILLS: FORM AND REQUIREMENTS OF LAST

WILL AND TESTAMENT

TESTAMENTARY CAPACITY

To make a valid Will, a person must be of legal age (18 years old and above; Art. 796)), not
expressly prohibited by law to make a Will (Art. 796), and of sound mind (Art. 798). A married
woman may make a Will without the consent of the husband and without need of authority
from the court (Arts. 801, 802).

The law presumes that every person is of sound mind (Art. 800). To be of sound mind, it is not
necessary that the testator be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause (Art.
799). Forgetfulness is not equivalent to being of unsound mind. It shall be sufficient if the
testator was able at the time of making the Will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the testamentary act. 

If the testator be deaf, or a deaf-mute, he must personally read the Will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof (Art. 807). If the testator is blind, the Will shall be read
to him twice; once, by one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged (Art. 808).

Testamentary capacity is an essential requisite for the validity of a Will. A Will cannot be
probated if, among others: (a) the testator was insane, or otherwise mentally incapable of
making a Will, at the time of its execution; (b) the Will was executed through force or under
duress, or the influence of fear, or threats; (c) the Will was procured by undue and improper
pressure and influence, on the part of the beneficiary or of some other person; (d) The
signature of the testator was procured by fraud; and (e) The testator acted by mistake or did
not intend that the instrument he signed should be his Will at the time of affixing his signature
thereto. 

THE WILL MUST BE IN WRITING 

A notarial Will must be in writing and executed in a language known to the testator (Art. 804).
Unlike a holographic will, a notarial Will need not be handwritten by the testator. A notarial Will
can be printed (if a Will is printed, it cannot be a holographic will).

SIGNED BY THE TESTATOR

The will must be subscribed at the end thereof by: (a) the testator himself; or (b) the testator’s
name written by some other person in his presence, and by his express direction (Art. 805). 

In the case of (b) above, when the testator cannot sign, the following must appear on the Will: (i)
the name of the testator was written under the Will by another person; (ii) the writing by
another person must be under the express direction of the testator; and (c) the act of writing
was done in the presence of the testator and the other witnesses. 

SIGNED BY AT LEAST 3 WITNESSES

The notarial Will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another (Art. 805). The witnesses, just like the testator,
must sign the Will at the end thereof. In other words: (a) the testator must sign the will in the
presence of all the witnesses; and (b) the witnesses must sign the will in the presence of the
testator and of each other.

The notary public before whom the Will is attested cannot be considered a witness.

SIGNED ON EVERY PAGE AND ATTESTED

The formalities in executing a Will are very specific. The probate of a Will shall be disallowed if
the formalities required by law have not been complied with (Art. 839). In addition to the
signatures of the testator and the witnesses at the end of the Will, the testator 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. [Art. 805]

The Will must also contain an attestation clause, which shall state: (a) the number of pages
used upon which the will is written; (b) 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 (c) that the latter witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another.

The purpose of requiring the number of sheets to be stated in the attestation clause is obvious:
certain pages might be removed or added. 

The signatures at the end of the Will and the signatures on top of each page have different
purposes:

 The signatures on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the Will. 

 The signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. 
The attestation clause is separate and apart from the disposition of the Will. An unsigned
attestation clause results in an unattested Will. Even if the instrumental witnesses signed the
left-hand margin of the page containing the unsigned attestation clause, such signatures
cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly different avowal.

A jurat, in contrast to an acknowledgment, is not sufficient. The acknowledgment coerces the

testator and the instrumental witnesses to declare before an officer of the law that they had
executed and subscribed to the Will as their own free act or deed. Such declaration is under
oath and under pain of perjury, thus allowing for the criminal prosecution of persons who
participate in the execution of spurious Wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she had designated in the Will. 

NOTARIZED

A notarial Will, as the name suggests, must be notarized. Every Will must be acknowledged
before a notary public by the testator and the witnesses (Civil Code, Art. 806). The notary public
is not required to retain a copy of the Will or file it with the Office of the Clerk of Court. If the
attestation clause is in a language not known to the witnesses, it shall be interpreted to them
(Art. 805).

To reiterate, the Will must be subscribed and attested. The act of subscribing (at the end of the
will and every page thereof, by the testator and the witnesses) need not be done in the
presence of the notary public, but the attestation must be done in the presence of the notary
public.

A Will which is Notarized may still be valid, so long as it complies with all the  requirements of a
holographic Will. Unless a will is a compliant with the requirements of either a notarial
or holographic will, it cannot be admitted to probate and, therefore, has no effect whatsoever
and no right can be claimed thereunder.

[Sources/Quotes: Azuela vs. CA, G.R. No. 122880, 12 April 2006; Balonan vs. Abellana, G.R. No. L-
15153, 31 August 1960; Baltazar vs. Laxa, G.R. No. 174489, 11 April 2012; Cruz vs. Villasor, G.R.
No. L-32213, 26 November 1973]