Topic : Revocation of Holographic Will

Definition
The settlement of a persons estate after his/her death, based on our experience, is
potentially one of the more bitter litigations. Its never good to see relatives
fighting each other. Some persons, with the intent of controlling the disposition of
his/her properties after his/her death (and hopefully prevent fighting among his/her
heirs over the properties left), prepare a last will and testament. Lets have a brief
discussion on this matter.
What is a last will and testament?
A last will and testament, or simply a will, is an act whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate. It is a document whereby a person, called the testator,
disposes of his/her properties or estate, to take effect upon his/her death.
The testator is the deceased person who made a last will and testament.
The person who is given PERSONAL property through a will is technically called
the legatee, while the person who is given REAL property in a will is called the
devisee.

The person named in the will who is entrusted to implement its provisions is called
the executor. If the executor is female, she is formally known as the
executrix.
Is a will the same as inheritance?
No. A will is different from inheritance, which includes all the property, rights and
obligations of a person which are not extinguished by his death (Civil Code, Art.
776). In other words, the basic difference between a will and inheritance is that
a will is the document that determines the disposition of the inheritance.
If a document is entitled a last will and testament but it provides that all
properties must be transferred during the lifetime of the testator, is this a
will?

No. A will takes effect upon death of the testator. If the disposition takes effect
before his/her death, it is a donation and is governed by the formalities of and legal
provisions on donations.
What are the kinds of wills?
There are two kinds of wills holographic and notarial. A holographic will must
be entirely written, dated, and signed by the hand of the testator himself. It is

subject to no other form, and may be made in or out of the Philippines, and need
not be witnessed (Article 810, Civil Code). On the other hand, a notarial will is
governed by the following provisions of the Civil Code, among others:
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name 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.
The attestation shall state the number of pages used upon which the will is written,
and 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 that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
What happens if theres no will or if a will is not probated?
A will enables a person to have control over the disposition of his/her estate. In the
absence of a will, the general provisions of law govern the disposition of the estate
of the deceased person. The proceedings in the absence of a will is called intestate
proceedings.
What is probate?
Probate is a special proceeding to establish the validity of a will. Probate is
mandatory, which means that no will passes either real or personal property unless
it is proved and allowed in a proper court. Courts in probate proceedings, as a rule,
are limited to pass only upon the extrinsic validity of the will sought to be
probated, but the courts are not powerless to do what the situation constrains them
to do, and pass upon certain provisions of the will, under exceptional
circumstances.
A will may be probated during the lifetime of the testator. This way, the testator
could himself/herself affirm the validity of the will.

What is reprobate?
It is a special proceeding to establish the validity of a will previously proved in a
foreign country.
Can the heirs of the deceased person refuse to produce the will?
The person who has custody of the will has the legal obligation to produce it. The
practical problem with this is when only a few persons know about the existence of
the will and all of them agree not to produce it. This is one of the reasons why
some testators sometimes entrust the custody of a will to their lawyers, who are
then obligated upon death of said testator to enforce the provisions of his/her will.
In the case of Dy Yieng Sangio vs. Reyes (G.R. Nos. 140371-72 (27 November
2006), a petition for the settlement of the intestate estate was filed. The oppositors
argued that the deceased has a holographic will and that the intestate proceedings
should be automatically suspended and replaced by the proceedings for the probate
of the will. A petition for probate of the holographic will was eventually filed. The
Supreme Court ordered the probate of the will and the suspension of the intestate
proceedings. According to the SC, it is a fundamental principle that the intent or
the will of the testator, expressed in the form and within the limits prescribed by
law, must be recognized as the supreme law in succession. All rules of construction

are designed to ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public policy that it cannot be
given effect.
If a document is not entitled last will and testament, could it still be treated
as a will?
Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled
Kasulatan ng Pag-Aalis ng Mana. The document, although it may initially come
across as a mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed by the hand of
the testator himself. An intent to dispose mortis causa (upon death) can be clearly
deduced from the terms of the instrument, and while it does not make an
affirmative disposition of the latters property, the disinheritance, nonetheless, is an
act of disposition in itself. In other words, the disinheritance results in the
disposition of the property of the testator in favor of those who would succeed in
the disinherited heir.

Two kinds of will: notarial and holographic

Under the New Civil Code of the Philippines, there are two kinds of wills: (1)
notarial will, and (2) holographic will. As the name denotes, a notarial will is
prepared and notarized by a notary-public. On the other hand, a holographic will
is completely written, signed and dated by the person making the will (called the
testator).

Disinheritance through a Kasulatan ng Pag-Aalis ng Mana

For more information about holographic wills, please read the Supreme Court
decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006.
In this case, the testator executed a document entitled Kasulatan ng Pag-Aalis ng
Mana where he disinherited his oldest child. The Supreme Court ruled:

The document, although it may initially come across as a mere disinheritance

instrument, conforms to the formalities of a holographic will prescribed by law. It
is written, dated and signed by the hand of the testator himself. An intent to dispose
mortis causa (upon death) can be clearly deduced from the terms of the instrument,
and while it does not make an affirmative disposition of the latters property, the
disinheritance, nonetheless, is an act of disposition in itself. In other words, the

disinheritance results in the disposition of the property of the testator in favor of

those who would succeed in the disinherited heir.

Whether notarial or holographic, a will must be probated before it can be

given

effect

Whether notarial or holographic, the will must be probated before it can be given
effect. Probate simply means that the will must be filed with and approved by the
proper court. If the will has not been probated, (1) ownership of real or personal
properties mentioned in the will cannot be transferred to the heirs, and (2) any
disinheritance

Issues

to

cannot

be

resolved

in

be

the

probate

given

of

holographic

effect.

will

In a petition to admit a holographic will to probate, the only issues to be resolved

by

the

court

are:

(1) whether the instrument submitted is, indeed, the decedents last will and
testament;

(2) whether said will was executed in accordance with the formalities prescribed
by

law;

(3) whether the decedent had the necessary testamentary capacity at the time the
will

was

executed;

and,

(4) whether the execution of the will and its signing were the voluntary acts of the
decedents.

As a rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional circumstances,
courts are not powerless to do what the situation constrains them to do, and pass
upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720,
September 15, 1994, 236 SCRA 488).

Advantages and disadvantages of holographic will

The Advantages and Disadvantages:

The advantage is simple. It costs nothing in legal fees and is quickly done.
The disadvantages are many. First, any qualified lawyer will have forms that avoid
the dozens of problems that normally occur in an estate (e.g. who are the
executors? What happens if an executor cannot serve? What happens if there is
a Will Contest? How are taxes to be paid? What happens if the beneficiary is dead
or bankrupt? What happens if creditors of the beneficiary make a claim on the
assets that are going to that beneficiary?) The well written Will can address all
those issues and more.
Further, tax planning, and savings of the cost of probate, which can be a major
aspect of any intelligent estate plan, can seldom be achieved without utilizing
numerous other structures (e.g. Trusts, joint tenancy, etc.) that are normally not
even considered when writing a holographic will.
Property held in joint tenancy or as part of a partnership or corporation may be
subject to rules and laws that make including it in a Will pointless or even a breach
of an agreement. Property held abroad or in another State may also pose a problem
involving taxes and accounting which intelligent estate planning can avoid.
If there is any chance a child may inherit (e.g. your prime beneficiary, who is an
adult, dies before you so his or her child inherits) then the best way to protect that
childs future inheritance would be a Trust. Without such a Trust, the money is

simply given to the guardian of that child who may not be the best person to
protect that asset.
The list goes on and onbut the point is that planning for ones death, however
unpleasant, normally requires the expertise and plethora of structures that only
professional help can provide. Holographic Wills should be done for emergency
purposes onlyuntil a fully drafted estate plan can be implemented.
For examples of what happens if one simply tries to write ones own, see our
Articles Page Lessons from the Combat Zone-Lawyers Stories With a Moral.

Conclusion:
Holographic Wills are perfectly legal. They are, however, quite questionable to use
if one really wants to anticipate problems and ensure the tax and cost efficient
transfer of assets to the next generation.
An old friend who was a client consistently refused to come in for a formal Will
despite my repeated urgings. He was an intelligent and driven business man who
just never had time and ended up scribbling what he hoped was a good Will on the
back of an envelop during a trek in Nepal after he fell and broke his leg and was
worried about what might happen. He did recover and came in for a formal Will

perhaps six months later and we went through his handwritten document and
discussed how it would have ended up costing his estate an extra fifty thousand
dollars by failing to have the right structure. He executed a Trust a month later.
One elderly client who was in intensive pain from cancer once told this writer that
her last important duty to her family was avoiding disputes concerning her
property once she died. It is up to me. No one else. And if I do it right, no one will
even think about the problems that could arise.
She was right.
Another Downside of holographic will
If you write out a will entirely in your own handwriting (no typewritten or preprinted portions) and sign and date it, this is what is known as a holographic will.
Such wills are legal, so long as they comply with state law concerning holographic
wills. The legal requirements for a valid holographic will can vary from state to
state, so it is important to know what your state requires if you decide to do a
holographic will. In California, a holographic will is legal if its material
provisions are in the testators own handwriting and the will is signed by the
testator [California Probate Code 6110-6111]. (A testator is the person who
makes the will.) A holographic will does not need to be witnessed; it does not even

need to be dated, although not dating your will is a bad idea if its not the only will
you have ever done.
Holographic wills appeal to many people who like the idea of saying exactly what
they want to say in their wills and who feel their situations are simple enough that
they don't need to spend the money for an attorney-drafted will or even a form will.
However, even assuming that your will meets the legal requirements for a
holographic will, there are good reasons not to do a holographic will. Most folks
who write their own holographic wills don't know how to do it properly, and the
potential for making costly mistakes is enormous. Only when the writer of a
holographic will dies do those mistakes come to light, and then the grieving family
is left to bear the burden of those mistakes.
Ambiguities and Errors. One of the most common problems with holographic
wills is ambiguity. The intended meaning may have been clear to the testator, but
those who are reading the will can be left with great confusion over the testator's
true intentions.
One man's holographic will left everything to "Mother," without identifying the
person by name. The man's mother survived him. So did his wife, whom he
affectionately called "Mother" ever since their child was born. Which of these
women was intended to receive his estate?

Another holographic will left the entire estate to the University of Southern
California, Los Angeles. The estate was fairly sizeable, and both USC and UCLA
asserted claims that they were the intended beneficiary. (It should be noted that
gifts to local charities that are part of a national organization should be very
specific and include the charitys address; otherwise, the gift may well end up
going to the national organization instead of being used locally.)
Other ambiguities can arise when the will refers to "my favorite cousin" without
naming the person, or "my good friend, Bob," when there are two or more friends
named Bob.
Ambiguities can also occur with respect to specific assets. If the will says, "I leave
my car to my good friend, Carol Smith," does this mean the new Mercedes you just
bought or the old Volkswagen youve had for years?
Errors can also create ambiguities. For example, one unmarried man had a small
corporation that he wanted to leave to his good friends and long-time employees,
so he allocated percentage ownership interests to six different people. In order to
give his best friend majority control, he gave his friend a 51% interest, and gave
smaller interests to each of the others. Unfortunately, when the total was added up,
it came to 101%! To make matters worse, this testator had a falling out with one of

the employees he had named, and he crossed that person's name out of the will
without specifying anyone else to get that person's share of the company.
Failure to Dispose of the Entire Estate. Typically, holographic wills are written
so that certain individuals are to receive certain specific assets. This is fine, so long
as the will addresses everything it should. A problem arises when the will disposes
of less than all of the estate. If the will gives away one's house, car, and bank
accounts, but neglects to mention furniture and other personal property and the 500
shares of General Motors stock, there is a partial intestacy as to the assets not
covered by the will. Such assets will then pass to surviving legal heirs as
determined by the state intestacy statutes, the result of which may not be what the
testator intended.
One woman wrote up a holographic will that dutifully listed some (but not all) of
her assets and named someone to take care of her cats. However, the will failed to
nominate an executor and did not say who should receive her estate, even though
she had told a favorite niece that everything was to go to her. The estate ended up
going to the womans surviving brother and sister, since they were the closest
living relatives.
Most attorney-drafted and form wills contain what is referred to as a "residuary
clause." This is a statement to the effect that "I leave the residue of my estate to "

whomever the testator specifies. "Residue" includes anything the testator owned at
death that should have been covered in the will but wasn't specifically mentioned.
It includes assets that the testator may have acquired only after the will was
written. Most holographic wills fail to include a residuary clause, and this often
causes problems. It may mean that part of the estate will pass to the persons heirs
at law under the rules of intestate succession (intestate means dying without a
will, but there can be a partial intestacy if a will doesnt properly distribute the
entire estate).
One elderly gentleman wrote out specific bequests to numerous friends, certain
family members, and charities, giving each one a specified dollar amount for a
total of about $600,000. He even went so far as to state that if his estate was
insufficient to fully fund all these bequests, then the amounts should be reduced
proportionately. However, when he died, his estate ended up being worth about
$1,150,000, and there was no direction as to who would get the residue the
amount over and above the specific bequest amounts. This resulted in a partial
intestacy, and nearly half his estate ended up going to his nieces, nephews, and a
couple of grandnieces, most of whom he had no relationship with and had not
intended to benefit from his estate.

The Problem of Ademption. As noted above, many holographic wills leave

certain assets to certain people. What often happens with holographic wills (and
even sometimes with attorney-drafted wills that dont get updated) is that assets
specifically bequeathed in the will are no longer owned by the testator at the time
of death. If an asset was supposed to be given to a specific beneficiary and that
asset is no longer owned by the testator at the time of death, this is referred to as
ademption. This means the intended beneficiary may well be out of luck and
may not get anything from the estate if the adeemed bequest was the only thing
they were given. Many people give their house to someone, but sell the house
before they die. Some folks leave specific bank accounts or stocks to someone, but
change banks or sell the stocks. If the will doesnt get updated, some intended
beneficiaries may get nothing.
Failure to Name Contingent Beneficiaries. The persons you name in your will to
receive your assets are called "beneficiaries." A common error in holographic wills
is that the testator fails to anticipate the possibility that a named beneficiary might
die before the testator. If the testator does not name a contingent or alternate
beneficiary and the named beneficiary predeceases the testator, the gift to the
named beneficiary will "lapse," meaning it will pass according to the laws of
intestate succession (unless there is a residuary clause in the will). For example, if
you leave part of your estate to one of your children, you dont expect the child to

die first; but if that did happen, you may want that childs share of your estate to go
to his or her children. If you dont put the proper provisions in your will, those
grandchildren may get nothing of what their parent was to receive.
Failure to Name an Executor. Typically, those who write their own holographic
wills focus mainly on who will get what when they die, but they neglect to
nominate an executor who will see to it that their wishes are properly carried out. If
no executor has been named in the will, the court generally must appoint an
"administrator" to perform the duties of the executor. The person appointed by the
court may or may not be the person the testator would have chosen.
Even in holographic wills where an executor is named, the testators typically
neglect to waive the requirement of a bond. Normally, an executor (or
administrator) must post a surety bond with the court as a form of insurance to
protect the beneficiaries of the estate in the event the executor should abscond with
or grossly mismanage the assets. A bond costs money, and this cost is normally
borne by the estate. A testator who has implicit trust in his or her named executor
may prefer to waive the bond requirement by so stating in the will, thereby
avoiding an unnecessary expense.
Failure to Address Special Situations. It may be that a named beneficiary is
disabled and receiving government benefits that would be adversely affected by a

direct inheritance. Or maybe a beneficiary has a substance abuse or gambling

problem, or some other circumstance that would make an outright inheritance a
bad idea. Or maybe the beneficiary is a minor (under 18). It may be that some of
your intended beneficiaries should receive their inheritance in a trust of some kind,
rather than an outright distribution that could have unintended consequences. A
holographic will is simply not appropriate in such situations.
Failure to Name Guardians. For testators with minor children, their wills should
include the carefully considered nomination of guardians for the children in the
event both parents are deceased before the children reach adulthood. This can be
critically important, yet it is often overlooked in holographic wills. If the parent
fails to name a guardian, the court must select and appoint someone. Often the
judge will name the closest living relative, who may be the last person you would
have wanted to get custody of your children.
If you still want to do a holographic will, that is your legal right. But consider the
risks to your loved ones. If saving money is your primary motivation, be aware that
the future cost to your intended beneficiaries may be far greater than the money
you saved by doing it yourself.