PLEASE HELP: How to do last will and testament in the Philippines if the testator is illiterate???

Posted by Fitz Villafuerte under General Information on August 6, 2013

Hello Sir Fitz, I am new here and I badly need your advise please. I wanted to send you an email but you mentioned that it’s better to ask questions here. I came across your blog > How To Write a Last Will and Testament: Basic Facts and Sample Template. My grandmother (my father’s mom) is now 92 years old and of course we are worried that if the time comes that she has to leave this world (which we hope not anytime soon because we love her so dearly), our relatives would start a dipute in the land she owns where our house is currently situated. My father is the only child (he was adapted when he was still a little baby) and so he is the only heir for the part of my granmother. As we don’t trust our relatives, someone advised our family to do a will before any unfortunate things happen. On your blog you mentioned that wills should be written, but my grandmother is illiterate. She cannot read and write (you know like some of those who were born during the Japanese empire in the philippines). How do we start the process of making a last will and testament? Can we ask help from PAO? Can we (grandchildren) serve as the witnesses? I am not exactly sure if you’re a lawyer, but your advise on this matter will be highly appreciated. Looking forward to your answers. Thank you and more power :)..

 

P.S: how can I change my nickname here??




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3 Responses to “PLEASE HELP: How to do last will and testament in the Philippines if the testator is illiterate???”

  1. Fitz says:

    Hi. A friend of mine asked me to post this:

    For the readers to have a perspective on the subject, allow me to lay down the essential vis-à-vis the questioned submitted. Under the Civil Code, a Will may be classified as either Notarial or Holographic.

    A Notarial Will is one which is executed in accordance with the formalities prescribed by Arts.804 to 808 of the Civil Code. In other words, it is a Written Will, and properly acknowledged.

    While a Holographic Will, is also a written Will which must be entirely Written by the testator, dated, and signed by the hand of the testator himself, without the necessity of a witness.

    Going back to our main discussion/query, the best and only option for an illiterate Testator in disposing his/her estate is to make a Notarial Will. Note that a lawyer can do and make a Notarial Will.

    I will give some sort of glimpse on the how this will be possible run down:

    “where the testator does not know how, or is unable for any reason to sign the will himself, it shall be signed in the following manner: Pedro Penduko, by the testator, Juan dela Cruz.”

    “By the testator, Pedro Penduko, Juan dela Cruz”

    Nevertheless, this formula which has been suggested by the Supreme Court , does not necessarily mean that other forms may not be used.

    Further, I endeavored to state this for elucidation and in as much clarity of voice to be understood; I dived down the vast repository of Philippine Jurisprudence which only issue to get from: What constitutes a Signature? In a case of Balonan v. Abellana, 109 SCRA 359, Supreme Court decreed that Art. 805 require, among others, that the testator himself must sign the Will, or if he cannot do so, the testator’s name must be Written by some other person in his presence and by his express direction.

    Simply put, a complete signature is not essential to the validity of a will. Perhaps to provide for greater authenticity, what should be found at the end of the will is the testator’s customary signature. However, since the law does not require his full signature, the initials or even a thump mark by the testator may be deemed sufficient to comply with this requirement. A thumb mark at the end of the Will may be considered as a valid signature especially when a testator cannot affix his signature due to some reason of either medical as paralysis or he/she does not know how to write.

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