ART. 796:
804
WHO CAN MAKE WILLS
(a) The general rule is CAPACITY. It is incapacity that is the
exception.
(b) Two general qualifications:
(1) 18 years old or over
(2) Soundness of mind at the time the will is made
(c) A convict under civil interdiction is allowed to make a will
(d) It is believed that spendthrifts or prodigals, even if under
guardianship, can make a will provided they are at least 18
years old and are of sound mind.
(e) Art. 796 only refers to natural persons, not juridical ones, like
corporation.
(f) Capacity to make a will (testamentifaccion active); Capacity
to inherit or to receive by will (testamentifaccion passive)
ART. 797:
An individual, though a minor, may, thus, still make a will, and the
consent of his parents is not required. Upon the other hand, if he be less
than 18, his will should be considered void, and this is true whether or
not parental consent had been obtained.
ART. 798:
It should be observed that the soundness of mind must exist at the time
of the execution of the will, not before nor after.
ART. 799:
REQUISITES FOR SOUNDNESS OF MIND:
(a) That testator knows the nature of the estate to be disposed of
(character, ownership of what he is giving)
(b) That testator knows the proper objects of his bounty (by
persons who for some reason expect to inherit something
from him)
(c) That testator knows the character of the testamentary act (that
it is really a will, that it is a disposition mortis causa, that it is
essentially revocable)
ART. 800:
TWO INSTANCES WHEN THE TESTATOR IS PRESUMED
INSANE:
(a) If the testator, one month or less before making the will was
publicly known to be insane
(b) If the testator made the will after he had been judicially
declared insane, and before such juridical order had been set
aside
ABSENCE OF PRESUMPTION
(a) The presence of mere delirium
(b) The insanity of the parents and children of the testator
EVIDENCE OF SOUNDNESS OF MIND
The attesting or subscribing witnesses’ testimony as to the mental
condition of the testator should be given great weight and should prevail
over that given by a non-attending physician who merely speculates.
- However, the physician should be believed if he was
constantly near the testator, and if he actually saw the latter
on the date of execution
ART. 801: SUPERVENING INCAPACITY
ART. 802: MARRIED WOMAN MAY MAKE A WILL WITHOUT
THE CONSENT OF HER HUSBAND
ART. 803:
WHAT WIFE CAN DISPOSE OF IN HER WILL
(a) The wife cannot dispose of her husband’s capital
(b) The wife can dispose of her share of the conjugal property
(c) The married woman must respect the legitime of her
compulsory heirs
KINDS OF WILLS ALLOWED:
(a) Ordinary or notarial will – requires an attestation clause, and
acknowledgement before a notary public
(b) Holograph or holographic will – the most important feature
of which is its being written entirely
ART.
HANDWRITING AND HANDWRITING EXPERTS EXPLAINED
The “handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he has seen the
person write, or has seen writing purporting to be his upon which the
witness has acted or been charged, and has, thus, acquired knowledge of
the handwriting of such person.
Handwriting experts are not mandatory or indispensable.
ELECTRONIC COMMERCE
Any contractual agreement entered into may be deemed valid and
enforceable even if it is in the form of an E-document EXCEPT IN THE
EXECUTION OF A WILL.
ART. 805:
WHAT ART. 805 PROVIDES
It particularly segregates the requirement that the instrumental witnesses
sign each page of the will, from the requisite that the will be “attested
and subscribed by the instrumental witnesses.”
Even if instrumental witnesses signed the left0hand margin of the page
containing the unsigned clause, such signatures cannot demonstrate
these witnesses’ undertakings in the clause, since the signatures that do
not appear on the page were directed towards a wholly-different crowd.
It is the attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves – it is the witnesses,
and not the testator, who are required to state the number of pages used
upon which the will was written.
REQUIREMENTS FOR A NOTARIAL OR ORDINARY WILL
(a) The will must be in writing
o Note that the validity of a will is not affected by
its having been written on poor stationery, or its
own preparation by an attorney or the absence of
copies)
(b) The will must be executed in a language or dialect known to
the testator
o If the testator resides in a certain locality, it can be
presumed that he knows the language or dialect in
said locality
(c) The will must be subscribed (signed) at the end thereof by the
testator himself or by the testator’s name written by another
person in his presence, and by his express direction
1) If the will is not signed at the end but somewhere else,
the will is NOT VALID.
2) If after the signature there are additional clauses or
provisions, not only should those clauses be considered
void, but also the WHOLE WILL from beginning to
end, and will, therefore, be denied probate.
3) “END” of the will – means the logical, not the physical
end of the will. Thus, if a will starts on the 1 st page,
continues on the 3rd page, but is concluded on the 2nd
page, the end of the 2nd page is the logical end.
4) If the testator’s first name appears, without the
surname, the will is valid.
5) If the testator’s name is misspelled, abbreviated, or by
nickname, or by “Father” or “Mother” or in an assumed
name, this is all right, provided that the testator
intended same to be his signature.
6) A testator can sign with his thumbmark or with his
initials or even with a rubber stamp or an engraved dye.
Even if the testator’s hand is guided by another when
signing or marking is made, the signing will still be
valid, and will be considered as having been done by
the testator himself.
7) A testator can sign with a mere cross if he intends that
to be his signature, but when SOMEONE ELSE writes
the testator’s name for him, the mere placing by the
testator of a cross after his name, without there being in
the will a statement that somebody had signed for the
testator, is NOT SUFFICIENT, and the will is
considered void, not because of the cross, but because
 of failure to state the signing of name by somebody 5) A credible witness is one possessed of the qualifications
else. imposed by law. He must be able or competent to
testify.
8) Even if a person knows how to write his name, the can
still sign by the use of a mark. 6) The witness can sign with a cross or a mark.

9) Somebody else may write the TESTATOR’S NAME
for the latter, provided this is done in the latter’s
presence and at the latter’s express direction. The
person writing for the testator should NOT be one of
the three witnesses.
10) “For the testator, Mr. Ty by Ms. Ty”
11) The person signing for the testator does not even have
to put his own name.
12) If the person who signs the name of the testator is one
of the subscribing witnesses, this is all right.
13) The delegate must sign in the TESTATOR’S
PRESENCE.
14) “Express direction” – means that the delegate must be
expressly authorized to do so. Hence, mere knowledge
on his part that the will is being signed in his behalf or
his acquiescence to such an act is NOT sufficient.
However, an express direction may be given by the
testator even without using the words – mere clear
gestures or motions or conduct is sufficient.
(f) All the pages shall be numbered correlatively in letters placed
on the upper part of each page.
(g) The attestation (attestation clause) shall provide:
1) The number of pages used
2) That the testator signed the will and every page
3) That the instrumental witnesses witnessed and signed
the will
a) The absence of the attestation clause is a fatal
defect. If the attestation clause is not signed by the
attesting witnesses at the bottom thereof, the will
is void since omission negates the participation of
said witnesses.
b) The failure of the attestation clause to state the
number of pages is a fatal defect.
c) The attestation is not part of the will itself, but
same may of course be incorporated into the will
itself.
d) The attestation clause is an act of the witnesses,
hence it need not contain the signature of the
testator.
e) The witnesses are not required to know the
language of the attestation clause.

(d) The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.
1) Aside from attesting itself, there must be PROOF
2) “In the presence” does not necessarily require actually
seeing, but possibility of seeing without any physical
obstruction.
Hence, when a person merely has his back turned, the
signing is done in his presence since he could have cast
his eyes in the proper direction.
If there is a curtain separating the testator and some
witnesses, there would be a physical obstruction, and
the will cannot be valid.
OTHER COMMENTS ON FORMALITIES OF NOTARIAL
WILLS
(a) It is not essential that the will has to be read to the witnesses,
or that they know their contents. While they are required to
participate in the acknowledgement before the notary public,
still what they will acknowledge is NOT the will but the
attestation clause.
(b) It is not necessary that the notarial will be dated.
(c) It is not essential to state the place where the will is being
made or executed.
(d) It is not essential to state in the attestation clause that the
person delegated by the testator to sign in his behalf did so in
the presence of the testator.

If the testator is blind, the “presence” may be complied

with if the signing or action is within the range of the
OTHER senses.

3) Purpose of requiring “presence”

o To avoid fraudulent substitution of the will
o To make more difficult the invention of false
testimony to be witnesses

4) It is important that the testator signs in the presence of

the witnesses, hence if he brings to their attention a
document purportedly to be a will but already
previously signed, the requirements of the law have not
been complied with.

(e) The testator or the person requested by him to write his

name, and the instrumental witnesses of the will shall sign
each and every page thereof except the last, on the left
margin.
1) The last page need not be signed on the margin

2) If the last page contains ONLY the attestation clause,

the testator need not sign on the margin.

3) If the whole will consists of only one page, no marginal

signatures are needed.

4) Failure to have the marginal signatures of the testator

and of the witnesses, when needed, is a FATAL defect.

If the second page bears the signature or thumbmark, as

the case may be, of the testator, but absent on said first
page, the will cannot be admitted to probate.