Months before the start of the 2020 pandemic, I was consulting on a peculiar case involving a handwritten last will and testament written on a yellow pad paper. While it was written by the testator, no signature appeared on the document.
It was an interesting case.
Philippine law via the Civil Code allows for two (2) ways to make a last will and testament via a notarial will or a holographic will.
A notarial will is a last will and testament that is requirer to be signed by the testator, attested to be at least three (3) witnesses, and all of them have to subscribe before a notary public. Hence, it is called a notarial will.
On the other hand, a holographic will is a last will and testament written and signed by the testator. That is the only requirement.
In both cases, the law does not prescribe any particular form or paper where the contents of the last will and testament will be written. Thus, the running joke in the legal community that you can have a last will written on a table napkin. Of course, if you want it notarized, good luck finding a notary public who will do it.
Going back to the case that was being consulted, it was evidently a case of holographic will. That it was written on a yellow pad paper does not affect the validity of the will. As earlier explained, the law does not require a specific form or paper.
That it was handwritten but had no signature made that case interesting to me.
Any other lawyer would have dismissed the last will and testament as being invalid for not complying with the requirements under the law, particularly the signature. It is, after all, clearly written in black and white. No buts, no ifs. When the law is crystal clear, lawyers are educated and trained repeatedly through various jurisprudence that no other interpretation should be made.
However, on the other side of the same coin, lawyers are trained to think outside the box and find, if not create, solutions to a client’s problem. This is, after all, how landmark cases are born and results in the reshaping of laws and the legal landscape.
What is clear under the law on succession is that the testator’s will and intent is paramount. As the last desire and wish in this world before leaving it, the law provides as much leeway and flexibility to accord and respect the wishes of the dead.
Having said all that, it would have been interesting how the courts would resolve the case if it was brought along those lines.
In particular, and for a more specific ground for allowing the will under a probate proceeding: can’t the full name of the testator handwritten by himself be considered his signature?
This was what sparked my curiosity.
Therr is no law regulating signatures. That is why, writing an X or using a thumbmark is allowed. There have been numerous cases where the Supreme Court allowed such to be considered as a person’s signature. Of course, evidence had to be presented to prove that such belonged to a particular person.
So, what if a person writes his name on a paper say a sales contract but he has a totally different signature, is the contract valid?
The answer by many is likely a resounding: yes. That a person has a unique signature but did not use it and instead wrote his name, is of no moment or irrelevant. What matters is his intent to be bound under the terms and conditions of the contract.
Why would I use contracts as a framework? Unknown to many, a last will and testament is in the nature of contract, in particular a contract of donation.
To the case at hand, wouldn’t the handwritten name on a last will and testament be substantial compliance to rules on holographic will?
That would be how the issue will be framed should before the courts and eventually before the Supreme Court which might just result in a landmark case.
As for the present case, the heirs decided to forego the probate of the will for many a reason, not just on it having no signature. What many testators and would executors forget in making a last will and testament is that it preparing a will is just the half of it. The other half, of equal importance, is that the last will and testament is required to undergo probate proceeding before regular courts, which entail legal costs and expenses.
Thus, many last will and testament are disregarded despite the efforts of the testator and notwithstanding his/her last wished on how his wealth and property will be disposed of after going through this ephemeral life.