5 0version-Gonzalvo

THE PRACTICABILITY OF ADOPTING A VIDEO-RECORDED WILL IN THE
PHILIPPINE LEGAL SYSTEM
A Thesis Presented to University of Batangas
College of Law
In Partial Fulfillment of the Requirements for the
Degree of Juris Doctor
Ellen L. Gonzalvo
2022
APPROVAL SHEET
This thesis entitled “THE PRACTICABILITY OF ADOPTING A VIDEO-

RECORDED WILL IN THE PHILIPPINE LEGAL SYSTEM ” prepared and submitted
by Ellen L. Gonzalvo, in partial fulfillment of the requirements for the degree of Juris
Doctor has been examined and is recommended for acceptance and approval.
_Atty. Edna Del Rosario__ _Atty. Maria Concepcion H. Beloso_

Thesis Professor Thesis Adviser
PANEL OF EXAMINERS
Approved by the Committee on Oral Examination with a grade of _______
__Atty. Hernando S. Perez Jr. __

Chairman
_Atty. Minerva R. Dimaano_ Atty. Sonny Jose M. Ricablanca_

Member Member
Accepted and approved in partial fulfillment of the requirements of the degree

of Juris Doctor.
Atty. Hernando S. Perez Jr.

Dean, College of Law
Date ______________
ABSTRACT
Title : THE PRACTICABILITY OF ADOPTING A VIDEO-RECORDED
WILL IN THE PHILIPPINE LEGAL SYSTEM
Author : Ellen Gonzalvo
Degree : Juris Doctor
Year : 2021-2022
Adviser : Atty. Maria Concepcion H. Beloso
SUMMARY
The great American polymath in the name of Benjamin Franklin once quoted,
“In this world, nothing can be said to be certain, except death and taxes.” Upon a
person’s death, more often than not, there will be some assets and properties left
behind, outstanding obligations, and rights still to be exercised in as much as the
reality of death comes at the most unexpected time. The law thus steps in to ensure
that the vacuum created by death is addressed and provides for its corresponding
legal consequences.
i
The State, through its legal mechanisms, specifically through the New Civil
Code, provides for the framework as to how these properties will be administered,
how the rights still existing will be enforced, and how the obligations still left
unsettled will be fulfilled. The State recognizes the testator’s freedom and liberality to
dispose of his properties, subject to certain limitations as enunciated in the New Civil
Code.
As provided under Art. 783 of the said Code, 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 this estate, to take effect after his death. (emphasis
supplied) In several cases decided by the Supreme Court, it has, time and again
ruled that, a will is the testator speaking after death. Its provisions have substantially
the same force and effect in the probate court as if the testator stood before the
court in full life making the declarations by word of mouth as they appear in the will.
That was the special purpose of the law in the creation of the instrument known as
the last will and testament. Men wished to speak after they were dead and the law,
by the creation of that instrument, permitted them to do so.
The Code further provides that there are only two forms of wills allowed in this
jurisdiction; to wit: i) ordinary or notarial will, and ii) holographic will. These two
recognized forms of wills are governed with strict formalities. Hence, even if a will is
ii
the testator speaking after death, the preparation of said instrument must yield to
those forms and solemnities. No wonder our court dockets have a plethora of cases
where a will is avoided by reason of failure to comply with the requirements of form
of the said will.
A conflict then arises between giving life to the intents and wishes of the
testator versus complying with the strict formalities.
Hence, the goal of this research is to propose an alternative form of will,
specifically an oral will, i.e. a video-recorded will, which does not require the same,
rigid formalities of a notarial or holographic will. The researcher recognizes the
significant role of technology in today’s era, which will make possible the execution
of a video-recorded will.
The following questions will be addressed for scrutiny by this research:
1. How are wills treated in the Philippines under the following?
a. New Civil Code
b. Case Laws
2. How does the legality and validity of a video-recorded will operate in the
State of Indiana, USA, and other select foreign jurisdictions?
3. How can video-recorded wills be adopted in the Philippines?
a. How does a testator video record his last will?
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b. How should the said video-recorded will be admitted to probate?
c. How should the provisions of the New Civil Code be amended so
that a video-recorded will may be accepted and may operate under the
Philippine legal system?
SUMMARY OF FINDINGS
1. A video-recorded will remains to be a personal act – one dependent upon
the wishes of the testator whose choice extends as far as choosing such means to
execute his will, without undue influence, danger or threat of outside parties. It will
far more reveal the capacity of the testator at the time of making the will since it
captures every detail of the will execution and will show more truthfully the testator’s
intent in making the will, effective upon his death.
2. A video-recorded will accurately shows the testator’s behavior, emotions
accompanying dispositions upon death, the person’s expressions and reactions
which may prove extremely helpful in interpreting the will and ascertaining the intent
of the testator. A video-recorded will provides more safeguards for fraud, loss or
destruction. For instance, a video-recorded will may be encrypted, that is, the video
itself and the data contained therein may be masked. Protection deals with
protecting the file via passwords, codecs, container formats, and so on, so that
iv
others don‘t have access to the data inside. Safeguard may also come in the form of
digital watermarking, i.e. act of hiding a message related to a digital signal (for
example: an image, song, video) within the signal itself. It is a concept closely
related to steganography, in that they both hide a message inside a digital signal.
However, what separates them is their goal. Watermarking tries to hide a message
related to the actual content of the digital signal, while in steganography the digital
signal has no relation to the message, and it is merely used as a cover to hide its
existence. Metadata for video is particularly helpful because video, unlike a
document, does not include keywords as text. It is the keywords that computers and
search engines use to search for content in videos.
3. At one point in time, oral or nuncupative wills are recognized in this
jurisdiction as evidenced by relevant Supreme Court Decisions.
4. Introducing a video-recorded will in this jurisdiction is in faithful keeping
with the intent of the Code Commission of the New Civil Code.
5. The Court should take advantage of the present technology which can
make viable a system designed for giving formal recognition of video-recorded wills.
6. The Rules on Electronic Evidence can lay the foundation in the formulation
of rules that can safeguard video-recorded wills.
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CONCLUSIONS
In light of all the foregoing, the researcher arrived at the following
conclusions:
1. A video-recorded will conforms to the essential elements and
characteristics of a valid will under the Philippine law on succession, allowing the
testator the freedom and liberality as to how such person will dispose of his
properties upon death.
2. A video-recorded will addresses the gaps and inefficiencies of traditional
wills and can help solve disputes regarding the formalities of wills.
3. A video-recorded will can close the door on fraud and substitution of wills.
4. A video-recorded will may guaranty the identity and due execution of the
will and the testamentary capacity of the testator; and consequently, may probated,
similar with traditional wills, as one being capable of admissibility and enforceability.
5. The availability of smartphones, and other portable or handheld video-
capturing devices makes it possible for testators to make their own wills privately.
RECOMMENDATIONS
With the foregoing discussions, the following are highly recommended, to wit:
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1. The Civil Code Chapter on Wills and Succession be amended to recognize
the validity of video-recorded wills.
2. That a video-recorded will be seen as feasible to take the place of the
traditional wills by way of providing an alternative form of will to testators.
More specifically, it is recommended that:
3. A video-recorded may now be made using iPhone or Smartphone (either
using the front or rear camera, whichever gives a clearer and sharper resolution of
the video); DSLR video camera; mirrorless video camera; point-and-shoot video
camera; sports and action video camera; digital camcorders; built-in cameras in
laptops or tablets; or any device capable of capturing and recording audio and video
footage and which falls under the same classification with those of the previously
mentioned devices; provided that animus testandi is clearly manifest; provided
further that both the video and audio are clear; provided finally that two copies of the
same shall be saved in a flash drive, SD/memory card, external hard drive or any
other data saving devices. A video-recorded will further needs to be witnessed by at
least two witnesses, who are at least 18 years old and of sound mind and discretion,
and not a felon charged with any crimes involving moral turpitude, either a detention
prisoner or one charged with finality of conviction. Said witnesses shall execute an
vii
affidavit attesting to the fact that the video-recorded will is the true and faithful will of
the testator.
4. It is also recommended that in case the will was executed at a time when
the testator is terminally ill, on his deathbed, or in articulo mortis, that a qualified
custodian be appointed by the Court; otherwise, the testator himself, during his
lifetime, shall keep and preserve the original copy of the will or may deposit with the
Clerk of Court of the Regional Trial Court which has territorial jurisdiction over his
residence the original copy of his video-recorded will; depending upon his discretion.
5. The Rules on Electronic Evidence shall apply suppletorily in the
determination of the authenticity of the electronic will and to the Rules of Court on
probate.
6. That further studies be made regarding video-recorded wills, and other
oral or nuncupative wills, to keep up with the changes brought about by the digital
age and its impact on legal transactions, specifically with regard to wills and estate
planning.
7. That the Supreme Court shall provide for the guidelines as to how a video-
recorded will may be made and executed, for the guidance of the members of the
bench and the bar.
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ACKNOWLEDGEMENT
The researcher would like to express her most profound gratitude to the
following people whose love, guidance, and support have helped her in
accomplishing this study:
Her parents, Eli and Edith; sisters, Karen and Pam; brothers, Mark and
Denmark, for their tireless and constant care, unconditional love and belief in what
the researcher does;
Her answered prayer from God, Rowel, for being her constant. Consistently
reminding the researcher of all her endeavors, encouraging, understanding and
loving her with all his might.
Her appreciations at most;
Atty. Maria Concepcion Hernandez-Beloso, thesis adviser, it is both an honor
and a privilege having her as a mentor, professor, and sort of a “support system” in
law school. Her guidance, numerous advice, understanding, and patience is what
makes her as a “favorite thesis adviser.” Thank you for accepting the researcher’s
paper, even if she has barely a month to write the whole manuscript, for staying until
the wee hours just to check her paper, for revising even her powerpoint presentation
at the last minute of the defense because the researcher is still on her travel way
home from work and because she is running late to make it for the 4:00pm defense,
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and thank you for saying “you don’t stop when you are tired, you stop when you are
done”. Thank you for waiting, fighting and defending with the researcher. God bless
you even more Ma’am;
Atty. Edna C. Del Rosario, professor in Thesis Writing, for her
encouragement, much needed reminders, assistance and vigilance. Law school in
UB will never run possible without her indispensable help;
To our Dean, Atty. Hernando S. Perez, Jr., Atty. Sonny Jose Ricablanca, and
Atty. Minerva R. Dimaano, as panel members for their invaluable inputs,
recommendations, time and efforts during the oral defense in order to improve this
study. Special mention to Atty. Dimaano whose critic on Chapter 4 has helped the
researcher a lot to revise anew its contents and to really deep think with regard to
the procedures for executing a video-recorded will; and to Atty. Ricablanca whose
suggestions specifically with regard to the Statement of the Problem has given light
to the researcher with what issues to focus on the study. The whole UB community
is indeed blessed to have professors as hardworking and dedicated as you are.
Hope someday, the researcher will be able to pay forward the good things you did.
In addition, the researcher would like to acknowledge her friends in law
school: Nicole, Nova, Shie, Krisia, Jerome, and Eunice, the best set of friends one
could ever ask for.
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To all the professors, classmates, colleagues and friends, God bless you all;
Above all, to the all-knowing, all-powerful God, the God of Israel, the Father of
both heaven and earth, researcher’s confidant and shepherd. To Him is the highest
glory and honor.
ELLEN
xi
DEDICATION
TO YOU,
WHO KEEPS DREAMING AND LIVING AMIDST WHATEVER LIFE THROWS AT
YOU
GOD BLESS!
SOLI
DEO
GLORIA
xii
TABLE OF CONTENTS
Page
CHAPTER I THE PROBLEM AND ITS BACKGROUND
A. Introduction 1
B. Statement of the Problem 6
C. Conceptual Framework 7
D. Assumption of the Study 8
E. Significance of the Study 10
F. Scope and Delimitations 12
G. Definition of Terms 14
CHAPTER II REVIEW OF RELATED LITERATURE AND STUDIES
A. Related Literature 18
1. The History and Origin of Wills in Select Foreign 18
Countries
2. Historical Background of Wills in the Philippines 28
3. Foreign Countries Allowing Nuncupative Wills 51
B. Related Study 71
C. Synthesis 73
CHAPTER III RESEARCH METHODOLOGY
A. Descriptive Research Design 74
B. Source of Data 75
C. Treatment of Data and Data Analysis 76
D. Limitation 76
CHAPTER IV PRESENTATION, ANALYSIS, AND INTERPRETATION OF DATA
A. Wills in the Philippines and How are they Treated 78
1. Under the Civil Code of the Philippines 78
2. Under Case Laws and Philippine Jurisprudence 86
B. Video-recorded Wills: Its Legality, Validity, and How it Operates in Select
Foreign Jurisdictions 91
1. Select American States 92
2. Indiana 101
3. Australia 106
C. The Feasibility of Adopting Video-recorded Wills in the
Philippines 114
1. Procedure for Recording the Testator’s Video-recorded
Wills 120
2. Probate of Video-recorded Wills 128
3. Amendment of the Civil Code Provisions on Wills 134
CHAPTER V SUMMARY, CONCLUSION AND RECOMMENDATION
A. Summary of Findings 140
B. Conclusions 142
C. Recommendations 143
Proposed Amendment 146
BIBLIOGRAPHY 148
APPENDIX 157
CURRICULUM VITAE 167

CHAPTER I
THE PROBLEM AND ITS BACKGROUND
A. Introduction
“There is nothing permanent except change.”1
Heraclitus, a Greek philosopher who lived some 2500 years ago, once said
that change is the only reality in nature. He said that everything changes and nothing
stands still. One cannot step in the same river twice.
Although this quote was said hundreds of centuries ago, the same is true,
applicable, and still relevant today. This concept of change is central to significantly
every aspect of the human lives. Change is inevitable. Whenever change takes
place, it always leads to somewhere new – new adjustments and adaptation, new
set of rules, and of course, new practices.
Probably the most significant change that has taken place over time is the
evolution and development of technology. The term evolution of technology means
how technology has evolved with the timeline from the early human tool prior to the
latest modern technology.2 According to Czech philosopher Radovan Richta,
1 Quote by Heraclitus
2 Evolution of Technology Timeline History: Communication, Education, Classroom, available
at https://atztechnology.com/evolution-of-technology/#What-is-Evolution-Technology, last accessed
May 3, 2022
611
technological evolution is a theory of radical transformation of society through
technological development.
It is not quite possible to cover all the extent of technological change over
time. However, one can begin from the Paleolithic Period, leading to the Digital Age
of Virtual Reality and Artificial Intelligence.3
During the Paleolithic Period, some 2.3 million years ago, humans
constructed the earliest means of tools such as knives, hammers, and scrapers from
stones, wood, antlers and bones of animals. Seemingly an aftermath of the stone
age, people discovered fire. It allowed humans to cook food and visibility at night.
Meanwhile, during the Neolithic Period, i.e. 12,000-15,000 years ago, humans
invented some key technologies like agriculture, animal farming, and harvesting
techniques. It paved the way for the Copper and Bronze Age, an era of great
technological advantages. Humans began to extract materials such as copper and
bronze for making tools.
Some 1,200-2,000 BC, the introduction of iron ore smelting and forging
technology allowed people to make more efficient, lighter, stronger, and cheaper
tools and weapons, thus replacing tools made from the bronze and copper.
3 Id.
2
At the dawn of the early 18 th century, significant technological breakthroughs
took place. The 19th century also saw the development of one of the prominent
technological advancements of the modern era, the invention of computers that
brought the age of digitalization. What started as a calculative device is now known
to be a major discovery in modern human civilization. Since the introduction of the
very first computing device “ENIAC,” the computer industry has gone through
revolutionary technological advancements.
Today, the latest trends in the technology of the future include the Internet,
Artificial Intelligence, 5G Networks, and Virtual Reality. “Face-to-face conversations”
via technology surfaced, through high-quality video and streaming capabilities like
Skype, Google Meet, Zoom, Facetime, livestreaming, etc. The era of video
streaming also came to life. Nowadays, people opt for digital streaming and video
services like Netflix, YouTube and Hulu.
In the light of all the foregoing discussions, technology obviously has gone a
long way. Today, technology runs our lives. Hence, it is not surprising that it has
also left its footprints in the legal landscape. Over the last five decades, the legal
industry has undergone a significant transformation. What was once seen as a
closely-knit profession has now become a global market enterprise with a worth of
3
1,000,000,000 US Dollars at the end of 2021. This was made possible with a single
factor known as legal technology. It is the key driver of disruption in the legal sector. 4
Legal technology, usually called “legal tech” refers to technologies and
software that substantially changes the way we use legal services in our daily lives.
In broader terms, it represents the set of technologies that: a) eases the practice of
law for lawyers and legal professionals; and b) enables clients to access legal
competence or justice.5 For instance, foreign courts have adopted electronic case
management. It is a creation of a database of cases by lawyers to track, edit, and
search easily whenever required. In some outside jurisdictions, online filing of legal
documents is now allowed. On May 20, 2020, the Honorable Supreme Court of India
turned towards technology to allow electronic filing (e-filing) of their cases. 6 In our
jurisdiction, by virtue of Republic Act No. 8792, or the Electronic Commerce Act of
2000 and its Implementing Rules and Regulations, electronic contracting became
legally enforceable and was intended to settle legal doubts about whether electronic
forms of contracting were lawful. It recognized electronic documents as the legal
equivalent of paper documents, and electronic signatures as handwritten signatures.
4 What’s the Role of Technology in the Legal Sector?, Singh, P., May 27, 2022, available at
https://appinventiv.com/blog/technology-in-legal-sector/, last accessed June 2, 2022
5 Id.
6 Id.
4
Moving forward, it is evident that the Philippine judiciary recognizes the role of
technology, specifically the advantage of using video technology to enhance and
expedite the administration and dispensation of justice.
A will is arguably the most important and personal legal document an
individual ever executes. For a testator, contemplating the creation and execution of
a will is the contemplation of the testator’s own death. However, originating in oral
traditions, wills have become entrapped in a dizzy maze of strict formalities. To
ensure that the testator’s will reflects his or her wishes, a will, as a formal legal act
requires it to be drawn up in the manner prescribed by law. Compliance with the
formalities of a will is quite tedious and taxing on the part of the testator. Not
everyone knows the law, notwithstanding the fact that Philippine jurisdiction
recognizes the time-honored principle, “ignorantia legis neminem excusat.” Even a
lawyer who is well-versed with the laws may fail to observe will formalities. Still,
there are those who would be too reluctant to ask for legal help, thinking that they
can just write their wills in any manner they want.
Imagine someone making self-recording and making his last will and
testament using a video camera, or a mobile phone. In that case, the forms of the
will specifically with regard to margins, witnesses, attestation clause as provided
under Art.805 of the New Civil Code. The testator can just bring out whatever video-
5
recording device is available and then declare his last wishes. If there is an error, he
can easily delete the initial video-record and make another one. A video-recorded
will thus, is the subject of this study.
The New Civil Code of the Philippines was approved on June 18, 1949 and
took effect the following year, at a time when wireless technology, computers,
smartphones, and digital and portable cameras are not yet in existence. Today,
times have changed. In an era where “technology seems to be the future”,
legislators should innovate other forms of wills aside from the notarial and
holographic wills, originally recommended by the Code Commission. Lawmakers
should keep up with time and technology.
In light of these foregoing views, this study is therefore conducted to propose
an amendment of the existing Philippine law on succession, specifically the
provisions on wills under the Civil Code of the Philippines; for the purpose of
recognizing and allowing a video-recorded will as a valid form of will.
B. Statement of the Problem
This study undertakes to analyze the practicability of adopting a video-
recorded will in the Philippine legal system.
Specifically, this study aims to answer the following questions:
6
1. How are wills treated in the Philippines under the following?
a. New Civil Code
b. Case Laws
2. How does the legality and validity of a video-recorded will operate in the
State of Indiana, USA, and other select foreign jurisdictions?
3. How can video-recorded wills be adopted in the Philippines?
a. How does a testator video record his last will?
b. How should the said video-recorded will be admitted to probate?
c. How should the provisions of the New Civil Code be amended so
that a video-recorded will may be accepted and may operate under the
Philippine legal system?
C. Conceptual Framework
The primary objective of the study is to propose an amendment of the existing
Philippine law on succession, specifically with regard to the forms of wills allowed,
for the purpose of recognizing and allowing a video-recorded will. To this end, this
study was guided by the framework as illustrated below.
7
INPUT PROCESS OUTPUT
 The New Civil  Empirical  Recommendati

Code of the Research on on the
Philippines  Analysis of feasibility of a
 Existing foreign laws video-recorded
Philippine and will in
jurisprudence jurisprudence Philippine
on Succession complementing jurisdiction as
law the law on the an addition
 Foreign formalities of form of a will
jurisprudence wills in the  Proposal for an
on Succession Philippines as amendment of
law basis of the the Philippine
 Relevant amendment law on
foreign laws  Analysis of the succession,
 Rules on Rules on specifically
Electronic Electronic with regard to
Evidence Evidence the forms of
complementing wills allowed,
the law on the for the purpose
formalities of of recognizing
wills in the and allowing a
Philippines video-recorded
will
D. Assumption of the Study
For this study, the researcher formulated the presumed facts and anticipated
conclusions on the feasibility of proposing an amendment of the New Civil Code
provisions with regard to the forms of wills allowed, for the purpose of recognizing
8
and allowing a video-recorded will. The researcher arrived at the following
assumptions:
1. The traditional requirements that a will must be in writing and signed by
the testator in the presence of (or acknowledged before) witnesses have never
adequately served their stated purpose, i.e., to guaranty the faithful execution of a
will by the testator.
2. At one point in time, nuncupative wills were recognized under Philippine
jurisdiction as evidenced by relevant Supreme Court decisions.
3. Providing an alternative from the long-standing requirements for execution
of a will may still be consistent with the true purpose of wills formalities -
authenticating a document as the one executed by the testator with the intention of
having it serve as the binding directive for the post-mortem distribution of the
testator's property.
4. The Philippine law on the form and execution of wills may be modified or
altered by the passage of amendatory laws by Congress.
of rules that can safeguard and protect the authenticity and due execution of video-
recorded wills.
9
6. Technological tools and advancements to enable the execution of a video
recorded will are readily available, accessible and affordable to the common people.
7. Video-recorded wills are likewise more advantageous and relevant to
those who are terminally ill at the time of making the will.
E. Significance of the Study
The time of new technologies, electronic trading, and the transfer of a large
part of human activity to electronic media forces changes in the needs for disposition
of property upon death. More and more legally binding transactions are taking place
online. A will is often one of the most important documents an individual ever
executes. This document is more likely to be the subject of litigation than any other
legal instrument and therefore should be prepared in such a way as to ensure that
the wishes of the testator are carried out. Despite of the aforesaid instances, there is
a lack of legislation recognizing the competence of a video-recorded will as a valid
form of a will in the Philippines and how these can serve the ever-changing needs of
the society in this digital age.
More importantly, the very rigid formalities governing wills in the Philippines
can frustrate the wishes of the testator for failure to the comply with the forms
required by the New Civil Code. In effect, it contravenes the time-honored principle
10
of “dicat testor et erit lex.” The intent of the testator is the cardinal rule in the
construction of wills.7 It is the “life and soul of a will” and the “first greatest rule, the
sovereign guide, the polestar, in giving effect to a will.” 8 In view of the strict
requirements with regard to the validity of notarial and holographic wills, amending if
not appending to existing laws on the matter would be a welcome development to
better give life to the will of the testator without sacrificing the noble intent of the law.
This study therefore aims to give more life to the hornbook doctrine of “dicat
testor et erit lex.”
With the primary objective of proposing an amendment of the New Civil Code
provisions with regard to the forms of wills allowed, this study is expected to benefit
the following:
1. To future researchers and law students, this can serve as a theoretical
model for future studies involving the laws on formalities of wills;
2. To the Congress, this study may provide as basis for future course of
action and provide them with materials in their quest for a possible amendment of
the provisions regarding the formalities of wills;
7 Dissenting Opinion of Justice Moreland in Santos v. Manarang, G.R. No. L-8235, March 19,
1914
8 Id.
11
3. To the Supreme Court, this study may serve as a guide and tool in ruling
cases involving the validity of a video-recorded will or other nuncupative wills;
4. To those who are planning the disposition of their estate, this can help
simplify the complicated legal setup of estate planning in the Philippines;
5. To the society in general, as this study can help maintain the solidarity and
unity of the family members and prevent possible tensions between heirs.
F. Scope and Delimitations
This study covers the possibility of introduction of video-recorded wills in
Philippine jurisdiction and its probate, but emphasis is given only on the law on wills
formalities.
The discussion therefore covers video-recorded wills as a nuncupative will,
relevant provisions of the New Civil Code on wills formalities, relevant provisions of
the Rules on Electronic Evidence and other relative domestic laws, as well as
pertinent Supreme Court decisions.
This thesis will not specifically delve on the other requirements for the validity
of a will, like the testamentary capacity of the testator, and more specifically on
intrinsic validity like the institution and substitution of heirs, testamentary disposition,
and legitime.
12
The researcher limits only the study to the issue of recognizing and allowing a
video-recorded will in the Philippines. Said type of will is further limited to a video-
recorded will, i.e. recorded by the testator himself and not by a third person who
functions as a videographer, as the researcher realized the possibility that first, said
third person may not be readily available at the time of executing the will, especially
under circumstances like the testator is on his deathbed, at the point of death, or is
terminally ill; second, said third person may not be located or available, or worse,
may have died ahead of the testator, and therefore, cannot be presented to court to
prove the authenticity and due execution of the will. Further, this study will only
discuss the essential elements, characteristics, and validity of a video-recorded will
based on the provisions of existing legal frameworks governing wills and inheritance.
As the researcher recognized the constraints brought about by time, the
information presented are mostly based on available resources related to the topic.
G. Definition of Terms
The following terms are used in this study as they are defined conceptually
and operationally for a clear understanding of the study:
13
Decedent - A deceased person, especially one who has lately died.
Etymologically the word denotes a person who is dying, but it has come to be used
in law as signifying any deceased person, testate or intestate. 9
Dicat Testor Et Erit Lex – What the testator says will be the law.10
Heirs - Technically, those persons designated by law to succeed to the estate
in case of intestacy.11
Holographic will - One that is entirely written, dated, and signed by the hand
of the testator himself.12
Inheritance – an estate in things, real, descending to the heir; an estate or
property which a man has by descent, as heir to another, or which he may transmit
to another, as his heir.13
Legitime - That portion of a parent's estate of which he cannot disinherit his
children without a legal cause. That interest in a succession of which forced heirs
may not be deprived.14
9 Black’s Law Dictionary available at https://www.latestlaws.com, last accessed October 9,

2021
10 Santos v. Manarang, G.R. No. L-8235, March 19, 1914
11 Id.
12 Id.
13 Id.
14 Id.
14
Notarial Will - that which must be acknowledged before a notary public by
the testator and the witnesses, and must be subscribed at the end of its terms by the
testator himself or by the testator’s name written by some other person in his
presence and by his express direction.15
Probate - originally, relating to proof; afterwards, relating to the proof of wills;
the act or process of proving a will.16
Property - that which is peculiar or proper to any person; that which belongs
exclusively to one; in the strict legal sense, an aggregate of rights which are
guaranteed and protected by the government; more specifically, ownership; the
unrestricted and exclusive right to a thing; the right to dispose of a thing in every
legal way, to possess it, to use it, and to exclude everyone else from interfering with
it.17
Testator - one who makes or has made a testament or will; one who dies
leaving a will.18
Video-recorded will – a will executed through a recording of both visual
images and sound through the use of an electronic device such as but not limited to
15 Republic Act No. 386, An Act to Ordain and Institute the Civil Code of the Philippines, Art.
806
16 Black’s Law Dictionary available at https://www.latestlaws.com, last accessed September 25,
2021
17 Id.
18 Id.
15
digital camera, smartphone camera, film camera, action camera and others falling
under the same category; which produce a video-record type of file which may or
may not be played in another electronic device including but not limited to computer,
television, CD/DVD, and others falling under the same category. 19
Will – 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, to take
effect after his death.20
19 Merriam Webster available at https://www.merriam-webster.com/dictionary/videotape, last

accessed September 25, 2021
20 Art. 783, Civil Code of the Philippines
16
CHAPTER II
REVIEW OF RELATED LITERATURE AND STUDIES
This chapter presents the related literature and encyclopedic works, as well
relevant laws and jurisprudence to fully understand the scope of this study. This
provides information regarding:
A. The history and origin of wills in select foreign countries;
B. Origin and historical background of wills in the Philippines;
C. Foreign countries allowing nuncupative wills
Furthermore, this chapter presents an unpublished thesis entitled, “Dicat
Testor Et Erit Lex: The Feasibility of Electronic Nuncupative Wills” written by Atty.
Mar Al Kriston D. Lipat in 2017, which the researcher finds related to support this
present study.
611
A. Related Literature
1. The History and Origin of Wills in Select Foreign Countries
a. Ancient Greece and Rome
The first use of wills can be traced back to ancient Greece and Rome, before
being used in England and then eventually America. 21 In ancient Athens, only male
citizens could have a will. If they were slaves or foreigners, then their possessions
became property of Athens. A person also had to be at least 20 years old. If
someone had a male heir in Athens, they could not get a will because all off their
property would automatically go to their heir. If they had only daughters, they could
name a man in the will to inherit their belongings, but that man must marry one of
their daughters.
Further, the person writing the will had to be of sound mind and body and the
will had to be witnessed and stamped or signed by the witnesses.
Ancient law in Athens directed that the estate of a deceased person should
descend to his children, or on failure of lineal descendants, go to collateral relations.
21 Patrick Hicks, Do You Know the History of Last Will and Testament, Hicks, June 14, 2012,
available at https://trustandwill.com/learn/history-of-last-will-and-testament, last accessed September
27, 2021
18
Solon (c. 638 – c. 558 BC) changed the law to give free citizens (aged at least 20) of
Athens the right to make wills, subject to conditions which continue to be familiar
today. They reflected the interference of the state in deciding who was to inherit,
they limited complete freedom of testation, and the problems of lack of capacity and
undue influence were already something which the law had to address. The
conditions for citizens to make wills included:
(a) they must not be adopted, (if an adopted person died without issue his or
her property passed to the adopting parents);
(b) if they had male children they could not make a Will because the children
were entitled to the estate;
(c) they should be in their right minds, and the will should not be made or
extorted through the frenzy of a disease, or dotage of old age, such wills not in
reality being the wills of the persons who made them;
(d) they should not be induced to by the “charms and insinuations” of a wife;
Plutarch said there is no difference between deceit and necessity, and flattery and
compulsion. All are equally powerful to persuade a man from reason.
19
In ancient Greece Wills were usually signed before several witnesses, who
put seals to them for confirmation, then placed them in the hands of trustees, who
had the job of seeing the Will carried out. 22
Rome, on the other hand, built on many of Greece’s policies for wills. The
“Twelve Tables” were a sort of very early codification of the existing law, prepared
in and after 450 B.C. They did not specifically deal with wills or succession to
property. commission of ten men (Decemviri) was appointed (circa 455 B.C.) to draw
up a code of law binding on both patrician (aristocrats) and plebeian (commoners)
and which consuls would have to enforce. The commission produced enough
statutes to fill ten bronze tablets. The plebeians were dissatisfied and so a second
commission of ten was therefore appointed (450 B.C.) and two additional tablets
were added. What follows are a selection from the Twelve Tables. 23The Twelve
Tables recognize a man's power to dispose of his property by will as he pleased:
"Uti legassit super pecunia tutelave suae rei ita jus esto.”
The formal source of most early Roman private law was the edict of the urban
praetor, (an office created in 367 BC to relieve the consuls of their judicial duties). In
22 History of Wills, Richard Boaden, March 22, 2016, available at

https://www.eqt.com.au/-/media/equitytrustees/files/legal-profession/sir-ninian-stephen-lecture-
papers/a-brief-history-of-inheriatance-through-the-ages.pdf, last accessed May 22, 2022
23 Oliver J. Thatcher, ed., The Library of Original Sources (Milwaukee: University Research
Extension Co., (1901), Vol. III: The Roman World, pp. 9-11.
20
addition there were jurists. They were the key figures behind the scenes in the
development of the law. Their responses to citizens’ queries built up a coherent body
of law. Two examples of questions and the curt responses follow.
To Scaevola (who died 88 B.C.) I wish the income from my

farm to be given to my wife as long as she lives. I ask whether
the heir’s tutor can sell the farm and offer her anannual
payment out of the rental income from the farm? He can. I also
ask whether my wife can be prevented from living there? The
heir heir is not obliged to provide accommodation to her.
Is the heir obliged to maintain the farm? If the heir’s actions

cause a reduction in the income from the farm, she can claim
for that reduction in income.
To Celsus – (67 B.C. – 130 A.D.) (head of the Proculian school

of law) Domitius Labeo to Celsus, greetings. I ask whether a
person who is asked write a Will, and who not only wrote it but
also signed it, can be regarded as one of the witnesses to it.
Iuventius Celsus to Labeo, greeting. Either I do not understand
your question, or it is exceptionally stupid: it is quite absurd to
doubt whether someone is a lawful witness because he also
wrote the will himself.
The early Roman wills proved to be a testament that could be made by
patricians. It nominated a person as the testator’s heir and made that person the
representative of the testator after his death, as his heir at law would have been if he
had died intestate. The testament was nuncupatio – an oral declaration addressed to
witnesses instituting an heir with such other provisions as might be added.
21
Later on a will was made in writing which the testator disclosed to witnesses,
and folded and tied up, declaring that the it contained the record of his last will.
In the absence of a will, property went to the widow and children, and failing that to
the deceased’s “gens”, his broader family`.
The operation of the early Roman will differed significantly from our modern
will:
(a) it could not pass after-acquired property, i.e. property not owned when the
will was made; (cf. Wills Act 1997 s. 34(1)2)
(b) it could not be easily changed; and
c) the heir was responsible for the deceased’s debts.
Freedom of testation was already limited. The Romans would set aside a will,
as being inofficiosa, deficient in natural duty, if without assigning a sufficient reason
it disinherited any of the children of the testator. However before the days of
Justinian, if the child did receive any legacy, no matter how small, this was a proof
that the testator had not lost his memory or his reason, and the will was valid. Hence
the belief that some people still have today, that if a will gives a small pecuniary
legacy, then it can substantially disinherit children. 24 Originally, Romans would state
their will for public record, but they eventually moved to written wills. Like Athens, a
24 Id at 36.
22
person only made a will if they had no heirs or relatives, unless those relatives had
waived their rights to the estate. Disinheriting was not allowed, unless there was
severe misconduct.
Rome, like modern wills, had heirs create an inventory and pay debts out of
that inventory.25 These documents were used to transfer possessions between
deceased male citizens and their heirs. They were most commonly used by citizens
without children or relatives. The process of creating a will in ancient times was
somewhat similar to what we see today: the person had to be of sound body and
mind and the creation of the will required witnesses and signatures. Today, this is
called as a notarial will.
Following the study of ancient Greece and Rome, historians often trace the
usage of wills to early England. The use of wills in England not only designated the
inheritance of one’s belongings, but also determined who inherited any land that an
individual might have owned. Early American traditions of creating and implementing
wills followed these practices closely.
b. England
25 Holper, Wilms, & Hanna, PLLC., History of Wills – Part 1: Ancient Wills, available at
https://hoplerwilms.com/blog/2016/04/24/history-of-wills-part-1-ancient-wills/, September 27, 2021
23
Before 1066, the Anglo-Saxon Period, lands were devisable by will.
Testamentary disposition, of land and personal property, was possible and exercised
by means of a will called a cwide. Meaning, he quotes what he says.
This was more in the nature of a record of what the testator had said, than
being a formal Will as we know it. There were apparently no universal rights for
widows and children.
After the period of conquest, however, the Norman feudal system introduced
a new system of land tenure and inheritance. Alienation without the consent of the
lord was not permitted, and this also prevented the gift of land by will. The King’s
Courts developed stringent restraints on alienation of land. The rule of primogeniture
was strictly enforced. The heir’s right in expectancy was respected to the extent that
his consent was generally necessary even for an alienation of land inter vivos by his
father. The Lord exacted a fine on transmission of land, including by inheritance, and
if it was not paid then there was some discretion on his part as to where the land
would go. Dying without an heir led to land passing to the Lord by escheat.
During the reign of King Henry II, in 1154-1189, until the period of 1200 in
England, a “tripartite principle” applied. If the deceased was survived by widow
and children, then the personal estate was divided into three parts: the wife’s part,
the bairns’ part (which went to the children equally, and was still called the legitim),
24
and the dead’s part. Or, if only widow or only children survived, then it was divided
into two parts. Children had to bring into hotchpot any advances received during the
deceased’s lifetime.
The deceased’s power of disposition was confined to the dead’s part. A
special form of writ was available to the widow and children for the purpose of their
claiming their proper portions.
Dying without confession was not acceptable, and dying intestate was
unusual. The opportunity of making an oral Will on one’s deathbed, at the time of
making final confession, led to the dead’s part usually being given to the church pro
salute animae – for the safety of the soul. So in practice, testamentary freedom was
very largely reduced.
On the other hand, the history of wills of personalty was considerably
different, but to some extent followed parallel lines. In both cases partial preceded
complete power of disposition. The general opinion of the best authorities is that by
the common law of England a man could only dispose of his whole personal
property if he left no wife or children; if he left either wife or children he could only
dispose of one-half, and one-third if he left both wife and children. The shares of wife
and children were called their pars rationabilis. This pars rationabilis is expressly
recognized in Magna Carta and was sued for by the writ de rationabili parte. At what
25
period the right of disposition of the whole personalty superseded the old law is
uncertain. That it did so is certain, and the places where the old rule still existed—
the province of York, Wales, and the city of London were regarded as exceptions.
The right of bequest in these places was not assimilated to the general law until
comparatively recent times by Acts passed between 1693 and 1726. A will of
personalty could be made by a male at fourteen, by a female at twelve. The
formalities in the case of wills of personalty were not as numerous as in the case of
wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the
gift was of £30 or more, to the restrictions contained in the Statute of Frauds. The
witnesses to a written will need not be "credible," and it was specially enacted by an
Act of 1705 that anyone who could give evidence in a court of law was a good
witness to a will of personalty. A will entirely in the testator's handwriting, called a
holographic will, was valid without signature. At one time the executor was entitled to
the residue in default of a residuary legatee, but the Executors Act 1830 made him in
such an event trustee for the next of kin.
Jurisdiction over wills of personalty was until 1858 in the ecclesiastical courts
probate being granted by the diocesan court if the goods of the deceased lay in the
same diocese, in the provincial court of Canterbury (the prerogative court) or York
(the chancery court) if the deceased had bona notabilia, that is, goods to the value of
26
£5 in two dioceses. The ecclesiastical jurisdiction was of a very ancient origin. It was
fully established under Henry II, as it is mentioned by Glanvill. In the city of London
wills were enrolled in the Court of Hustings from 1258 to 1688 after having been
proved before the ordinary. Contested cases before 1858 were tried in the provincial
court with an appeal originally to the Court of Delegates, later to the Judicial
Committee of the Privy Council. There were also a few special local jurisdictions,
courts baron, the university courts, and others, probably for the most part survivals
of the pre-Conquest period, when wills seem to have been published in the county
court. The ecclesiastical courts had no jurisdiction over wills of land, and the
common law courts were careful to keep the ecclesiastical courts within their limits
by means of prohibition. No probate of a will of land was necessary, and title to real
estate by will might be made by production of the will as a document of title. The
liability of the executor and legatee for the debts of the testator has been gradually
established by legislation. In general it is limited to the amount of the succession.
Personal liability of the executor beyond this can by the Statute of Frauds only be
established by contract in writing.26
2. Historical Background of Wills in the Philippines
26 Williams, James, Will (Law), 1911 Encyclopedia Britannica, Volume 28
27
a. Spanish Colonization
By 17th Century, Spain’s sovereignty over the Philippines had been fully
established. Her colonization had completely altered the political, economic, and
cultural life of the locals. Christianity, particularly Catholicism, was introduced to
replace the old paganism and a centralized government was established over the
reigns of the barangays. New cities and towns were built and Spanish civilization
propagated. In exchange for the blessings of Catholicism and Latin culture, the
Filipinos paid tribute or an imposed tax, rendered forced labor, and sacrificed
personal belongings.
Spanish colonization had the outstanding aim of spreading Christianity. This
was attested by the last will and testament of Queen Isabella, the Catholic spirit of
the Laws of the Indies, by apostolic labors and achievements of the missionaries,
and actual results of Spain’s more than 300 years of colonial work. Spain crossed
the seas and colonized heathen lands because of her zeal to serve the cause of
God.
The desire for economic wealth was the second aim of the Spanish
colonizers. This aim rose from the keen struggle among European nations to control
the rich spice trade in the Indies. Magellan and other navigators blazed their way
across the Pacific to secure spices and Oriental wares for the Spanish Crown. But
28
Spain failed to gain monopoly of the spice trade and derived no material profit out of
her colonial ventures in the Far East.
The third aim of Spanish colonization was the aspiration for political grandeur.
By acquiring the Philippines, Spain emerged as a mighty empire whose frontier
comprised both hemispheres. King Philip II then became the first European monarch
who could justly claim that the sun never set on his dominions.
For 300 years, the Philippines was a colony of Spain. Until 1821, when the
Mexicans revolted and won independence from Spain, the Philippines was
dependent on Mexico, being administered by the Viceroy in the name of the King.
From 1821 to 1898, the country was a distinct governmental unit under the direct
control of the home government in Madrid. The King issued cedulas or resident
certificates for the administration of the colony and appointed a governor, members
of the Royal Audiencia (the Supreme Court then), and other high officials.
Except for three brief periods (1810-1813, 1820-1823, and 1834- 1837), the
Philippines did not enjoy the benefits of the Spanish Constitution and the privilege of
representation to the Spanish Cortes. Special laws, which consisted of royal
decrees, proclamations, and laws of Spain extended to the Philippines by royal
sanction, governed the colony. Among the Spanish laws applied to the Philippines
were the following: Laws of the Indies, the code of Spanish legislation; Siete
29
Partidas, a compilation of Spanish laws; Leyes de Toro, which dealt with wills and
succession; and Novisima Recopilacion, which related to all branches of law. 27
Specifically with regard to the Spanish Law on Wills, the Spanish Civil Code
provides that a will may be common or special.
The common will may be holographic, open or closed. (El testamento
puede ser común o especial. El común puede ser ológrafo, abierto o cerrado). The
military will, the maritime will and the will made in a foreign country shall be deemed
special wills. (Se consideran testamentos especiales el militar, el marítimo y el
hecho en país extranjero.)28 A will shall be called holographic when the testator
writes it by himself in the form and with the prerequisites set forth in Article 688. 29(Se
llama ológrafo el testamento cuando el testador lo escribe por sí mismo en la forma
y con los requisitos que se determinan en el artículo 688). 30
27 Early Development, Rediscovery, and Colonization of the Philippines, available at

https://psa.gov.ph/sites/default/files/2011PY_Early%20Development%2C%20Rediscovery%20and
%20Colonization%20of%20the%20Philippines_0.pdf, last accessed May 27, 2022
28 El Codigo Civil de Espana 1889, Articulo 677, Seccion 3, De la forma de los testamentos
29 The holographic will may only be made by persons who are of legal age. In order to be valid,
this will must be written out in full and signed by the testator, with expression of the year, month and
day on which it is made. If it should contain words which have been crossed out, amended or written
between the lines, the testator shall save such changes underneath his signature. Foreigners may
make a holographic will in their own language. (El testament ológrafo solo podrá otorgarse por
personas mayores de edad. Para que sea válido este testamento deberá estar escrito todo él y
firmado por el testador, con expresión del año, mes y día en que se otorgue.Si contuviese palabras
tachadas, enmendadas o entre renglones, las salvará el testador bajo su firma. Los extranjeros
podrán otorgar testamento ológrafo en su propio idioma)
30 Art. 678, Sec. 3, De la forma de los testamentos. El Codigo Civil de Espana
30
A will shall be open whenever the testator should declare his last will in the
presence of the persons who are to authorize the act, who are made aware of the
dispositions made therein. (Es abierto el testamento siempre que el testador
manifiesta su última voluntad en presencia de las personas que deben autorizar el
acto, quedando enteradas de lo que en él se dispone) 31 A will shall be closed when
the testator, without revealing his last will, declares that it is contained in the
document presented to the persons who are to authorise the act. (El testamento es
cerrado cuando el testador, sin revelar su última voluntad, declara que ésta se halla
contenida en el pliego que presenta a las personas que han de autorizar el acto). 32
The following persons may not act as witnesses in wills:
1. Minors, save as provided in article 701.33
2. Blind persons and wholly deaf or mute persons.
3. Persons who do not understand the language of the testator.
4. Persons who are of unsound mind.

33 Art. 701 In the event of an epidemic, the will may also be executed without intervention of a
Notary Public, before three witnesses older than sixteen. (En caso de epidemia puede igualmente
otorgarse el testamento sin intervención de Notario ante tres testigos mayores de dieciséis años)
31
5. The spouse or relatives within the fourth degree of consanguinity or the
second degree of affinity of the authorizing Notary Public, and persons who have an
employment relationship with the latter.
(No podrán ser testigos en los testamentos:
Primero. Los menores de edad, salvo lo dispuesto en el artículo 701.
Segundo. Sin contenido.
Tercero. Los que no entiendan el idioma del testador.
Cuarto. Los que no presenten el discernimiento necesario para desarrollar la
labor testifical.Quinto. El cónyuge o los parientes dentro del cuarto grado de
consanguinidad o segundo de afinidad del Notario autorizante y quienes tengan con
éste relación de trabajo).34
In an open testament, heirs and legatees named therein, their spouses, or the
relatives of the former within the fourth degree of consanguinity or the second
degree of affinity may also not be witnesses. This prohibition does not include
legatees or their spouses or relatives where the legacy is of a movable object or an
amount of scarce importance in relation to the estate. (En el testament abierto
tampoco podrán ser testigos los herederos y legatarios en él instituidos, sus
cónyuges, ni los parientes de aquéllos, dentro del cuarto grado de consanguinidad o

32
segundo de afinidad. No están comprendidos en esta prohibición los legatarios ni
sus cónyuges o parientes cuando el legado sea de algún objeto mueble o cantidad
de poca importancia con relación al caudal hereditario). 35 For a witness to be
declared ineligible, it is necessary that the cause of his incapacity should exist at the
time of making the will. (Para que un testigo sea declarado inhábil es necesario que
la causa de su incapacidad exista al tiempo de otorgarse el testament). 36 Where the
testator should express his will in a language not known to the Notary Public, the
presence of an interpreter chosen by the former shall be required to translate the
testamentary disposition to the official language used by the Notary Public in the
place of execution. The instrument shall be written in both languages, with indication
of which language was employed by the testator. The open will and the deed of the
closed will shall be written in the foreign language in which the testator has
expressed himself and in the official language used by the Notary Public, even if the
latter should know the former language. (Cuando el testador exprese su voluntad en
lengua que el Notario no conozca, se requerirá la presencia de un intérprete,
elegido por aquél, que traduzca la disposición testamentaria a la oficial en el lugar
del otorgamiento que emplee el Notario. El instrumento se escribirá en las dos
lenguas con indicación de cuál ha sido la empleada por el testador. El testamento

33
abierto y el acta del cerrado se escribirán en la lengua extranjera en que se exprese
el testador y en la oficial que emplee el Notario, aún cuando éste conozca
aquélla).37 The Notary Public must know the testator and, if he does not know him,
he shall identify his person by means of two witnesses who know him and who are
known to the same Notary Public, or by means of documents issued by the public
authorities for the purpose of identifying persons. The Notary Public must also
ensure that, in his opinion, the testator has the necessary legal capacity to make a
will. In the cases of article 700 and 701, the witnesses shall have the obligation of
knowing the testator, and shall attempt to ascertain his capacity. (El Notario deberá
conocer al testador y si no lo conociese se identificará su persona con dos testigos
que le conozcan y sean conocidos del mismo Notario, o mediante la utilización de
documentos expedidos por las autoridades públicas cuyo objeto sea identificar a las
personas. También deberá el Notario asegurarse de que, a su juicio, tiene el
testador la tendrán obligación de conocer al testador y procurarán asegurarse de su
capacidad.) If it should not be possible to identify the person of the testator as
provided in the preceding article, the Notary Public, or the witnesses, as the case
may be, shall declare such circumstance, with mention of the documents submitted
by the testator for such purpose and his personal characteristics. If the will should be
34
challenged on such grounds, the person upholding its validity shall have the burden
of proving the testator‘s identity. (Si no pudiere identificarse la persona del testador
en la forma prevenida en el artículo que precede, se declarará esta circunstancia
por el Notario, o por los testigos en su caso, reseñando los documentos que el
testador presente con dicho objeto y las señas personales del mismo. Si fuere
impugnado el testamento por tal motivo, corresponderá al que sostenga su validez
la prueba de la identidad del testado). 38
The open will must be made before a Notary Public qualified to act in the
place where it is made. Only the cases expressly determined in the same Section
shall be excepted from this rule. (El testamento abierto deberá ser otorgado ante
Notario hábil para actuar en el lugar del otorgamiento. Sólo se exceptuarán de esta
regla los casos expresamente determinados en esta misma Sección). 39 The testator
shall express, orally or in writing, his last will to the Notary Public. Upon the Notary‘s
drafting the will in accordance with such statements, and with expression of the
place, year, month, day and time of its execution, and after warning the testator of
his right to read it by himself, the Notary Public shall read it out loud for the testator
to declare whether it conforms to his intentions. If so, it shall be signed in the same
act by the testator who is able to do so and, as the case may be, by the witnesses
35
and other persons required to appear. If the testator declares that he does not know
how to or is unable to sign, one of the two witnesses shall do it for him at his
request. (El testador expresará oralmente o por escrito su última voluntad al Notario.
Redactado por éste el testamento con arreglo a ella y con expresión del lugar, año,
mes, día y hora de su otorgamiento y advertido el testador del derecho que tiene a
leerlo por sí, lo leerá el Notario en alta voz para que el testador manifieste si está
conforme con su voluntad. Si lo estuviere, será firmado en el acto por el testador
que pueda hacerlo y, en su caso, por los testigos y demás personas que deban
concurrir. Si el testador declara que no sabe o no puede firmar, lo hará por él y a su
ruego uno de los testigos).40
On the other hand, the closed will must be executed in writing. If the testator
should write it in his own hand, he shall put his signature at the end. If it should be
written by any mechanical means or by another person at the testator‘s request, the
latter shall sign in all pages thereof and at the end of the will. Where the testator
does not know how to or is unable to sign, another person shall do so at his request
at the end and in all pages thereof, expressing the cause of the impossibility. In any
event, prior to his signature, any words amended, crossed out or written between the
lines shall be validated. (El testamento cerrado habrá de ser escrito. Si lo escribiese
40 Art. 695, Sec. 5, Del Testamento Abierto
36
por su puño y letra el testador pondrá al final su firma. Si estuviese escrito por
cualquier medio mecánico o por otra persona a ruego del testador, éste pondrá su
firma en todas sus hojas y al pie del testamento. Cuando el testador no sepa o no
pueda firmar, lo hará a su ruego al pie y en todas las hojas otra persona,
expresando la causa de la imposibilidad. En todo caso, antes de la firma se salvarán
las palabras enmendadas, tachadas o escritas entre renglones).41
b. The American Occupation
While the Revolution was continuing in the Philippines, Cuba, a colony of
Spain, was fighting for her independence. Because of American intervention in
support of Cuba’s cause, Spain declared war against the United States on April 24,
1898. Admiral George Dewey, commander of the American Asiatic Squadron, was
instructed to proceed to the Philippines to destroy the Spanish fleet. The superiority
of American warships and arms led to the defeat of the Spanish armada on May 1,
1898. On December 10, 1898, Spain gave up the Philippines to the United States for
$20,000,000 as sanctioned by the Treaty of Paris. Filipinos resented the fact that
they had a new colonizer when they should already have regained independence.
This animosity led to the outbreak of the Filipino-American War.
41 Art. 706, Sec. 5, Del Testamento Cerrado
37
Lasting for three years (1899-1902), the war was eventually won by
Americans. Their sovereignty was recognized in the islands, although the people
never abandoned their long-held dream of independence. 42
After several attempts of Filipino leaders to secure an act granting
independence to the Philippines from the United States, one finally succeeded.
Manuel L. Quezon was able to obtain the approval of the Tydings- McDuffie
Independence Act, which provided for the establishment of a commonwealth
government for a ten-year period, and the adoption of a constitution. A constitutional
convention drafted the Constitution that was ratified on May 14, 1935. The election
of the Commonwealth officials followed, with Manuel L. Quezon as President and
Sergio Osmeña as Vice-President. On November 15, 1935, the new officials
assumed office and this began the ten-year period of self-government. 43
Immediately after implementing her sovereignty in the Philippines, America
opened the gates of the archipelago to progress. Under the new regime, agriculture
developed rapidly, commerce and trade soared to unprecedented levels,
transportation and communication were modernized, banking and currency were
improved, and manufacturing industries were given impetus.
42 Id at 41
43 Id.
38
The single greatest factor that caused the phenomenal change of Philippine
economy was free trade with the United States. Unlimited American exports were
admitted free of duty.
With the spread of patriotic ideals, the Filipinos learned to take pride in their
race and cast off their inferiority complex. The Filipinos quickly assimilated the
lesson that all men are created equal and are equal before the law. Awakened by
the liberating influence of democracy, the people broke loose from the shackles of
servility and became more assertive of their rights. Society and classes became
based on wealth rather than on education and ancestral lineage.
One significant influence of America was the emancipation of Filipino women
from social and political restrictions of Spanish days. They were given freedom to
associate with men and to enter coeducational schools and universities. They also
obtained their right of suffrage in 1937.
The American system of education, language, literature, arts, and sciences
were introduced and taught to the Filipinos. The Filipino heritage, enriched by the
Early Development, Rediscovery, and Colonization culture of Spain, received further
enrichment with the coming of the Americans. Just as Spain taught the Filipinos the
39
Catholic mode of living through religion, so America did undertake to teach them the
democratic way of life through a system of popular education. 44
During the American Occupation in the Philippines, the Philippine judiciary is
marked by the US colonial official who used legal systems to ensure US control over
the Island. This was done by initiating a judicial transition, which contained a series
of procedures guaranteeing US officials the power to overrule insular courts or
legislatures. This judicial transition refers to the long-term transformation of Filipino
law from the Spanish civil law system to an Anglo-American common law system
through implementing a new code of civil procedure, changing the official language
of legal proceedings to English, and importing US judges to the islands during the
first part of the twentieth century. This transition masked a failsafe, which ensured
that colonial administrators would retain power despite promises to cede control to
the local population. Elements of this failsafe included maintaining a US majority on
the Supreme Court of the Philippines, empowering the US Supreme Court to review
and overturn decisions of the Filipino Supreme Court, and barring Filipino courts
from ruling on matters of importance to the US government such as admiralty
cases.45
44 Id.
45 Timothy J Foley, The Judicial Failsafe: American Legal Colonialism in the Philippines,
American Journal of Legal History, 2022;, njac009, https://doi.org/10.1093/ajlh/njac009
40
However, the original plan conceived by the US to implement a totally new set
of laws did not completely materials. Notwithstanding the efforts of the US colonial
officials, the Spanish Civil Code remained in effect even during the American
colonization of the Philippines. This means that under the American regime, the laws
with regard to civil matters are still provided for under the Spanish Civil Code.
This notwithstanding, by 1940, at a time where American forces were still in
place in the Philippines, the Commonwealth government of President Manuel
Quezon had created a Commission to create a new Civil Code, while not completely
departing from the laws of Spain. However, the work of the Commission was
interrupted by the Japanese invasion of the Philippines, and its records were
destroyed during the Battle of Manila in 1945.
In 1947, President Manuel Roxas created a new Code Commission. The
Commission completed the final draft of the new Civil Code by December 1947, and
this was submitted to Congress, which enacted it into law through Republic Act No.
386. The Civil Code took effect in 1950.
This New Civil Code was completely drafted using the English language,
however, it did not entirely depart from the basic precepts of the laws of Spain. The
present Civil Code of the Philippines remains to be strongly influenced by the
Spanish Civil Code.
41
The Law on Succession is one of the five (5) divisions of the New Civil Code.
Despite the amendments made on this law, the influence of the Spanish Civil Code
is still evident, for example, the law retains such concepts indigenous to Spain such
as the rule on legitimes and reserva troncal.
The present code, however, has introduced several significant changes in the
existing law prior to its enactment. Among such changes are: 46 Greater freedom is
given to the testator in the choice of the form for his will and testament. While under
the prior legislation, only attested wills were recognized, the new civil code permits
also the execution of holographic wills, which are entirely written by the testator,
without witness or attestation. Greater facility in the probate of wills is provided by
the introduction of the system of probate during the lifetime of the testator. Under the
prior legislation, probate can be effected only after the death of the testator.
The present Code permits the execution of only two kinds of wills: 1) the
ordinary or attested will, and 2) the holographic or handwritten will. Both come with
strict formalities to be valid, such as, among others, the need for three attesting
witnesses. Article 80447 of the New Civil Code provides for the common
46 The Proposal to Amend the Existing Law on Succession in the Philippines to Admit
Alternative Forms in Wills, Rubi, P. available at https://ausltechlaw.wordpress.com/2012/09/27/rubi-
pamela-the-proposal-to-amend-the-existing-law-on-succession-in-the-philippines-to-admit-alternative-
forms-in-wills/, last accessed June 1, 2022
47 Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator.
42
requirements which apply to both attested and holographic will. It provides that the
will must be in writing and executed in the language known to the testator. Our law
does not recognize nuncupative wills, which is one that is not written but orally
declared by the testator in his last illness, in contemplation of death, and before a
sufficient number of competent witness.
For a notarial will to be valid, that which is provided by Art. 805 of the New
Civil Code must be complied with, to wit:
Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the
testator ‘s 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.
43
On the other hand, for a holographic will to be valid, the testator must follow
the procedure laid down under Art. 810 of the New Civil Code, to wit:
Art. 810. A person may execute a holographic will which 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.
The object of the solemnities surrounding the execution of the wills is to close
the door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity.
One of the most fundamental principles in the present law of succession is
that the will of the testator, express in the forms required by law and exercised within
the limits laid down by the law, must be recognized as the supreme law in the
succession.
With regard to matters of probate of will in the Philippines, the Rules of Court
provide that “No will shall pass, either real or personal property unless it is proved
and allowed in accordance with the Rules. 48 In other words, the presentation of the
will for probate is necessary. A will must be probated in court before it can be
enforced. Probate is a court proceeding to establish the validity of the will, and to
rule either for its allowance or disallowance. To probate a will means to prove to the
44
court that the document offered is really the last will and testament of the testator. It
is a court process that ensures that the wills follow the law in such things like
compulsory heirs, among others, in addition to the actual form of the will. It requires
filing the will in court as well as submitting evidence to prove the validity and due
execution of the will. Specifically, Rule 76 of the Rules of Court governs the
allowance or disallowance of wills. In a special proceeding for the probate of a will,
the issue by and large is restricted to the extrinsic validity of a will, i.e., whether the
testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law.
The testator himself or anyone who has an interest in the estate may petition
the court for the allowance of the will by filing a Petition with the Regional Trial Court
where the deceased was residing at the time of his death or if he was a resident of a
foreign country, in the place where he had properties. 49 If the testator has not filed
for the allowance of his will during his lifetime, the will may still be proved and
allowed by the court. This time, the executor, devisee, or legatee named in the will,
or any person interested in the estate may petition the court for the allowance of the
testator’s will.
49 1997 Rules of Court, Rule 73, Section 1
45
If a notarial will is contested, all the subscribing witnesses and the lawyer who
notarized the will must be produced and examined. The death, absence, or insanity
of any of the witnesses must be satisfactorily shown to the court.
If a holographic will is contested, the same shall be allowed if at least three
(3) witnesses who know the handwriting of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. In the absence of any
competent witness, the will may be examined by an expert.
Under Sec. 9, Rule 76 of the Rules of Court, a will shall be disallowed in any
of the following cases:
(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable
to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.
All told, it is evident that the law favors testacy over intestacy. 50 In cases that
there have been an already instituted intestate proceeding, and a will is found
thereafter, the law provides that the probate of the will is mandatory and therefore,
50 Seangio v. Reyes, G.R. Nos. 140371-72, November 27, 2006
46
testate proceedings take precedence over intestate proceedings. 51 If a will is then
probated, the intestate case should be consolidated with the estate proceedings and
the judge assigned to the testate proceeding should continue hearing the two
cases.52 The probate of the will is so important that the law punishes the custodian
or executor of the will if he is negligent in his duty in not presenting the will before
the probate court within twenty (20) days after he knows of the death of the
testator.53 The rationale behind this doctrine is that intestacy is only the ―presumed
will of the decedent” 54, and therefore no presumption is necessary if an actual will
which clearly determines the testator‘s wishes exists and such is admitted to
probate. In other words - Dicat testor et erit lex.” - what the testator says is the law,
and in the words of the Supreme Court, the supreme law. It is also submitted that
the substantial compliance doctrine is founded on the aforementioned legal maxim,
so much so that a will, although not complete with the formal requirements of law,
nevertheless will still be probated if it will effectively comply with most of the legal
requirements.
Meanwhile, worth noting is the rule of substantial compliance. This is
contemplated in the pertinent provision of the Civil Code, to wit:
51 Baluyot v.Panio, G.R. No. L-42088, May 7, 1976

52 Roberto v. Leonidas, G.R. No. L-55509, April 27, 1984
53 Sec. 4-5, Rule 75, 1997 Rules of Court
54 Suntay v. Suntay, G.R. No. 183053, June 16, 2010
47
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is not proved that the
will was in fact executed and attested in substantial compliance
with all the requirements of article 805 (Emphases and
underscoring supplied.) As long as the requirements are
substantially complied with, the notarial will shall be considered
valid.
The Philippine jurisdiction has always respected a decedent’s freedom to
dispose of his estate, whether under the Spanish Civil Code or under the present
Civil Code.55 Article 763 of the Spanish Code provides:
Art. 763. El que no tuviere herederos forzosos puede disponer

por testamento de todos sus bienes o de parte de ellos en
favor de cualquiera persona que tenga capacidad para
adquirirlos. El que tuviere herederos forzosos solo podra
disponer de sus bienes en la forma y con las limitaciones que
se establecen en la section quinta de este capitulo.
This provision states that a person without compulsory heirs may dispose of
his estate, either in part or in its entirety, in favor of anyone capacitated to succeed
him; if the testator has compulsory heirs, he can dispose of his property provided he
does not impair their legitimes. This provision was later translated and adopted as
Article 842 of our Civil Code.56
In the case of Rodriguez v. CA57, the Supreme Court held that:

55 Hacbang v. Alo, G.R. No. 191031, October 5, 2015
56 Hacbang v. Alo, G.R. No. 191031, October 5, 2015
57 Rodriguez v. CA, G.R. No. L-28734, March 28, 1969
48
Respect for the will of a testator as expressed in his last
testamentary disposition, constitutes the principal basis of the
rules which the law prescribes for the correct interpretation of
all of the clauses of the will; the words and provisions therein
written must be plainly construed in order to avoid a violation of
his intentions and real purpose. The will of the testator clearly
and explicitly stated must be respected and complied with as
an inviolable law among the parties in interest. Such is the
doctrine established by the Supreme Court of Spain, constantly
maintained in a great number of decisions, among which are
those of March 24, 1863, April 28, 1882, and December 16,
1903.
As early as 192658, the Supreme Court has been ruling that:
Moreover, so compelling is the principle that intestacy should

be avoided and the wishes of the testator allowed to prevail
that we could even vary the language of the will for the purpose
of giving it effect. Thus: “Where the testator's intention is
manifest from the context of the will and surrounding
circumstances, but is obscured by inapt and inaccurate modes
of expression, the language will be subordinated to the
intention, and in order to give effect to such intention, as far as
possible, the court may depart from the strict wording and read
a word or phrase in a sense different from that which is
ordinarily attributed to it, and for such purpose may mould or
change the language of the will, such as restricting its
application or supplying omitted words or phrases.”
The Supreme Court of Spain has adopted the same view. 59 Hence, in Villaflor
vs. Juico, the Supreme Court quoting the Supreme Court of Spain decision held that:
In consonance with this rule, this Supreme Court has laid the
doctrine in In re Estate of Calderon, 26 Phil., 233, that the
58 Solla v. Ascueta, G.R. No. 24955, September 4, 1926
59 Villaflor v. Juico, G.R. No. L-15737, February 28, 1962
49
intention and wishes of the testator, when clearly expressed in
his will, constitute the fixed law of interpretation, and all
questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testator's words, unless it
clearly appears that his intention was otherwise. The same rule
is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo
1918; 28 Mayo 1912; 30 Abril 1913; 16 Enero 1915; 23 Oct.
1925).
La voluntad del testador, clara, precisa y constantemente

expresada al ordenar su ultima voluntad, es ley unica,
imperativa y obligatoria que han de obedecer y cumplir
fielmente albaceas, legatarios y heredera, hoy sus sucesores,
sin que esa voluntad patente, que no ha menester de
interpretaciones, pues no ofrece la menor duda, pueda
sustituirse por ningun otro criterio de alguno de los
interesados, ni tampoco por el judicial. (Tribunal Supremo of
Spain, Sept. 20, March 1918)
3. Foreign Countries Allowing Nuncupative Wills
a. United States
In the 21st century, eighteen is the typical age of testamentary capacity. Full
liberty of disposition is not universal. In particular, many states normally grant
spouses the right to at least half the estate regardless of what the will says (or if no
will can be found). Some require that children cannot be disinherited without good
cause. In many case, children omitted in a will may still take their share.
In modern U.S. law, wills are not required to be registered prior to death in
most states, but are registered and put in the public record after the person making
50
the will dies and the estate is probated. However, it is often still a good idea to have
the signing and witnessing of a will notarized, to reduce the risk of disputes over the
will's validity after death. Wills can be used to nominate guardians for minor children,
but because children are not property, the will cannot have the final word on the
question. Guardianship is decided by courts, though the usual outcome is that
guardianship is awarded to the other surviving parent, or, if no parents survive, to
the guardian nominated in the last surviving parent's will.
In the United States of America, federal laws are generally applicable in the
same way across all state borders. However, under their constitutional laws, states
are allowed to create, implement, and enforce their own laws in addition to federal
laws. This is because every U.S. state is also a sovereign entity in its own right and
is granted the power to create laws and regulate them according to their needs. 60
Hence, each state has its own laws on Wills and Successions. As can be seen
hereafter, there are States which allow nuncupative wills while others absolutely
prohibit the same.
i. Indiana
60 Why Do States Have Different Laws?, Rivera, J. June 26, 2018, available at
http://www.legalmatch.com/law-library/article/why-do-states-have-differentlaws. last accessed, June
2, 2022
51
According to the Indiana Code 29-1-5-4, nuncupative wills are valid provided
that the following requisites are met:
Sec. 4. (a) A nuncupative will may be made only by a person in imminent peril
of death, whether from illness or otherwise, and shall be valid only if the testator died
as a result of the impending peril, and must be:
(1) Declared to be his will by the testator before two (2) disinterested
witnesses;
(2) Reduced to writing by or under the direction of one (1) of the witnesses
within thirty (30) days after such declaration; and
(3) Submitted for probate within six (6) months after the death of the testator.
(b) The nuncupative will may dispose of personal property only and to an
aggregate value not exceeding one thousand ($1,000) dollars, except that in the
case of persons in active military, air or naval service in time of war the aggregate
amount may be ten thousand ($10,000) dollars.
(c) A nuncupative will does not revoke an existing written will. Such written
will is changed only to the extent necessary to give effect to the nuncupative will.
ii. Louisiana
52
According to the Louisiana Civil Code 61, the following must be met for a
nuncupative will to be valid, to wit:
a. To have the capacity to make a donation inter vivos or mortis causa, a
person must also be able to comprehend generally the nature and consequences of
the disposition that he is making. Minor over 16 can dispose only mortis causa (in
prospect of death).
b. The will must be signed in the presence of a notary public and two
competent witnesses.
c. Nuncupative wills must be received by a notary public in presence of 3
witnesses residing in place of execution or 5 not residing in place; must be written by
notary as dictated and read to testator in presence of witnesses; must be signed by
testator or expressly mentioned why he cannot and signed by at least one witness;
written by testator or another from his dictation and presented in front of 5 witnesses
who reside in place of execution or 7 who do not (3 and 5 consecutively, if in the
country and no other witnesses can be had).62
However, on 1 July 1999, Louisiana changed its laws on wills. The Louisiana
Code no longer recognizes Nuncupative Statements either by Public or Private Act
61 Sec. 1570, et seq.

62 FindLaw, Louisiana Wills Laws, available at http://statelaws.findlaw.com/louisiana
law/louisiana-wills-laws.html, last accessed June 2, 2022
53
and Mystic Testaments. But any wills that were validly executed before July 1, 1999,
using one these forms will still be valid.63
iii. Massachusetts
Massachusetts’ wills laws are governed by Massachusetts General Laws
Chapters 190B and 191. Generally, the will must be in writing and signed by the
testator or by another person in the testator‘s conscious presence and at his or her
direction. Two or more competent individuals must witness the testator sign the will
or witness the testator‘s acknowledgment of the signature or will. If an interested
witness (someone who will benefit from the will) signs the will, the will is still valid
provided that there are two other non-interested witnesses who sign the will; or the
interested witness proves the portion of the will containing the gift was not inserted
and the testator did not sign the will as a result of fraud or undue influence. Soldiers
in actual service or mariner at sea may make nuncupative will of personal property. 64
iv. Missouri
63 My Louisiana Succession Attorney, Louisiana Last Will and Testament, available at

http://www.mylouisianasuccession.com/louisiana/last-will-and-testament, last accessed June 2, 2022
64 FindLaw, Massachusetts Wills Laws, available at FindLaw, Louisiana Wills Laws, available
at http://statelaws.findlaw.com/louisiana law/louisiana-wills-laws.html, last accessed June 2, 2022
54
Nuncupative wills are also valid in the state of Missouri. Section 474.340.1 of
the Missouri Revised Statutes (Probate Code-Intestate Succession and Wills)
provides the following:
Nuncupative wills.
474.340.1. A nuncupative will may be made only by a person in imminent
peril of death, whether from illness or otherwise, and shall be valid only if the testator
died as a result of the impending peril, and must be:
(1) Declared to be his will by the testator before two disinterested witnesses;
(2) Reduced to writing by or under the direction of one of the witnesses within
thirty days after such declaration; and
(3) Submitted for probate within six months after the death of the testator.
2. The nuncupative will may dispose of personal property only and to an
aggregate value not exceeding five hundred dollars.
3. A nuncupative will neither revokes nor changes an existing written will.
v. New York
As in many other states, New York's wills laws require the testator (the person
writing the will) to be at least 18 years old and of sound mind. New York also
recognizes oral (or "nuncupative") wills, but generally only if made by members of
55
armed forces while in actual military or naval service during a war or other armed
conflict. The same goes for New York holographic wills, which are handwritten. 65
According to the New York Statutes, § 3-2.2, the requisites of a valid
nuncupative will are as follows:
Nuncupative and holographic wills
(a) For the purposes of this section, and as used elsewhere in this chapter:
(1) A will is nuncupative when it is unwritten, and the making thereof by the
testator and its provisions are clearly established by at least two witnesses.
(2) A will is holographic when it is written entirely in the handwriting of the
testator, and is not executed and attested in accordance with the formalities
prescribed by 3-2.1.
b) A nuncupative or holographic will is valid only if made by:
(1) A member of the armed forces of the United States while in actual military
or naval service during a war, declared or undeclared, or other armed conflict in
which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in
actual military or naval service during such war or other armed conflict.
(3) A mariner while at sea.

65 FindLaw, New York Wills Laws, available at http://statelaws.findlaw.com/new-york-law/new-
york-wills-laws.html, last accessed June 2, 2022
56
(c) A will authorized by this section becomes invalid:
(1) If made by a member of the armed forces, upon the expiration of one year
following his discharge from the armed forces.
(2) If made by a person who serves with or accompanies an armed force
engaged in actual military or naval service, upon the expiration of one year from the
time he has ceased serving with or accompanying such armed force.
(3) If made by a mariner while at sea, upon the expiration of three years from
the time such will was made.
(d) If any person described in paragraph (c) lacks testamentary capacity at
the expiration of the time limited therein for the validity of his will, such will shall
continue to be valid until the expiration of one year from the time such person
regains testamentary capacity.
(e) Nuncupative and holographic wills, as herein authorized, are subject to the
provisions of this chapter to the extent that such provisions can be applied to such
wills consistently with their character, or to the extent that any such provision
expressly provides that it is applicable to such wills.
vi. North Carolina
57
North Carolina recognizes nuncupative wills if the testator is dying from his or
her - last sickness or in imminent peril‖ and in fact dies as a result of that sickness or
peril. North Carolina only permits nuncupative wills for the disposition of personal
property. Real estate can only be disposed of by a written or holographic will. 66
vii. Ohio
An oral will, made in the last sickness, shall be valid in respect to personal
property if reduced to writing and subscribed by two competent disinterested
witnesses within ten days after the speaking of the testamentary words. The
witnesses shall prove that the testator was of sound mind and memory, not under
restraint, and that the testator called upon some person present at the time the
testamentary words were spoken to bear testimony to the disposition as the
testator's will. No oral will shall be admitted to record unless it is offered for probate
within three months after the death of the testator. 67
viii. Oklahoma
66 The General Statutes of North Carolina, Article 1, § 31-3.2

67 Ohio Revised Code of 2017, Title XXI, Chapter 2107, Section 60
58
The requisites of a valid nuncupative will according to the Oklahoma Code 68
are the following;
§ 8446. Nuncupative wills. Requisites.
To make a nuncupative will valid, and to entitle it to be admitted to probate,
the following requisites must be observed:
1. The estate bequeathed must not exceed in value the sum of One
Thousand Dollars ($1,000.00).
2. It must be proved by two witnesses who were present at the making
thereof, one of whom was asked by the testator at the time to bear witness that such
was his will, or to that effect.
3. The decedent must at the time, have been in actual military service in the
field, or doing duty on shipboard at sea, and in either case in actual contemplation,
fear or peril of death, or the decedent must have been at the time in expectation of
immediate death from an injury received the same day.
§ 8451. Nuncupative will need not be in writing.
A nuncupative will is not required to be in writing, nor to be declared or
attested with any formalities.
68 Oklahoma Code of 2014, Title 84, § 84-86
59
ix. Washington
Any adult (eighteen years of age) of sound mind may make a will that
expresses her intention to give her property to persons or entities after her death.
Every will must be in writing and signed by the testator (the person making the will),
or signed by another person on behalf of the testator and in the testator‘s presence.
Every will must be signed by two or more competent witnesses who sign the will in
the presence of the testator and at the testator‘s direction. Provided these conditions
are met, a will executed in Washington is valid. (RCW 11.12.010, 11.12.020.) Any
person who has executed a will under these conditions, or conditions lawful in the
location where the will was executed, is said to be "testate." Those who have not
done so are said to be "intestate." To avoid complications when a will is probated,
after the death of the testator, the witnesses to a will should be persons who are not
interested, that is, persons who do not receive under the will and would not receive
were the will is determined to be invalid. A person possesses sufficient ―sound
mind‖ to execute a will if that person understands what he is doing, knows what
property he owns, and remembers who are the members of his family. 69 Such a
sound mind is called testamentary capacity. A testator‘s intent to make a will may be
69 In re Bottger’s Estate, 14 Wn.2d 676, 129 P.2d 518 (1942), available at

https://casetext.com/case/in-re-bottgers-estate, last accessed June 2, 2022
60
affected by the testator‘s mental incapacity, by fraud upon the testator, by the undue
influence of others, or by the testator‘s mistaken understanding regarding his ill. 70
A member of the United States armed forces or merchant marine may
dispose of his or her wages and personal property, provided the value of such is less
than $1,000.00, by an oral statement to two witnesses who are charged by the
testator that the statement represents his will and this statement is made at the time
of the member‘s last illness, and further provided that within six months after the
testator spoke, his words are written down, and the deceased‘s widow and heirs at
law are notified by citation of this nuncupative will. No real estate may be transferred
by nuncupative will. (RCW 11.12.025.)
In other words, oral wills are valid in Washington provided that the following
requisites are met, to wit;
1. Testamentary Capacity. To make an oral will in Washington one must be
at least 18 years old and of sound mind. Further, one can only make an oral will if he
is a member of United States Armed Forces or he was employed by the United
States Merchant Marine Service, or is otherwise a person competent to make a will
as regards personal property not exceeding $1000 in value.
70 When is a Will Valid?, Lancaster, Brad, available at http://lancasterlawoffice.com/when-will-

valid, last accessed June 2, 2022
61
2. Witness Requirements. A qualified testator can only make an oral will if it
is witnessed by two people who are present at the time. Also, the testator must be in
his or her last sickness, meaning and testator is suffering from an illness or injury
that will result in death.
3. Amount Limits. A person can only use an oral will to dispose of personal
property and only up to a limit of $1,000. No oral will can be used to dispose of real
estate.
4. Writing. Once an oral will is made, it must then be reduced to writing by
the witnesses within six months of the testator speaking the terms of the will.
Further, the deceased testator's spouse and heirs at law must be notified about the
will so they can contest it.71
b. Scotland
Up to 1868 wills of immovables were not allowed under Scots law. The usual
means of obtaining disposition of heritage after death was a trust disposition and
settlement by deed de praesenti, under which the truster disposed the property to
trustees according to the trusts of the settlement, reserving a life interest. Thus
something very similar to a testamentary disposition was secured by means

71 Washington Oral Wills, HG.org Legal Resources, Legal articles by lawyers, available at
https://www.hg.org/article.asp?id+25603, last accessed June 2, 2022
62
resembling those employed in England before the Wills Act of Henry VIII. The main
disadvantage of the trust disposition was that it was liable to be overthrown by the
heir, who could reduce ex capite lecti all voluntary deeds made to his prejudice
within sixty days of the death of his ancestor. In 1868 the Titles to Land
Consolidation Act made it competent to any owner of lands to settle the succession
to the same in the event of death by testamentary or mortis causa deeds or writings.
In 1871 reduction ex capite lecti was abolished. A will of immovables must be
executed with the formalities of a deed and registered to give title. The disability of a
woman as a witness was removed by the Titles to Land Consolidation Act. As to
wills of movables, there are several important points in which they differ from
corresponding wills in England, the influence of Roman law being more marked.
Males may make a will at fourteen, females at twelve. A nuncupative legacy is good
to the amount of £100 Scots (£8, 6s. 8d.), and a holograph testament is good
without witnesses, but it must be signed by the testator, differing in this from the old
English holograph. By the Conveyancing Act 1874 such a will is presumed to have
been executed on the date which it bears. Not all movables can be left, as in
England. The movable property of the deceased is subject to jus
relictae and legitime.72
72 McLaren, John, McLaren on Wills and Succession, Edinburgh, Green, 1934
63
c. France
The law is mainly contained in art. 967–1074 of the French Civil Code. Wills
in France may be of three kinds:73
1. holograph, which must be wholly written, dated and signed by the testator;
2. notarially executed, i.e. drawn up by two notaries and signed in presence
of two witnesses or by one notary before four witnesses; this form of will must be
dictated by the testator and drafted by the notary, must be read over to the testator
in the presence of the witnesses, and must be signed by testator and witnesses;
3. mystic, which are signed by the testator, then closed and sealed and
delivered by him to a notary before six witnesses; the notary then draws up an
account of the proceedings on the instrument which is signed by the testator, notary
and witnesses.
d. Germany
Most of the law will be found in the German Civil Code, ss. 2064–2273. A
holograph will, either single or joint, is allowed. Other wills must be notarially
executed, declared before a judge, or (if outside Germany) a consul. Two witnesses
73 Id at 40.
64
are required, unless the witness is a notary or a clerk of court (court registrar), any of
whom will suffice. The formalities may be relaxed in certain cases, such as imminent
death, a state of siege, a prevailing epidemic, etc. Freedom of testation is
constrained by the rules of forced heirship: descendants, ascendants, and the
spouse are all entitled to forced shares (aka legal right shares). Forced heirs may
only be disinherited for certain specified kinds of misconduct. Will contracts are
invalid; however, a pactum successorium (aka contract concerning succession)
made inter vivos is valid in certain cases and will operate on the death of the
deceased. The two main types of pacta successoria are the contractual disclaimer of
interest (Erbverzichtvertrag) and deed of variation (Erbauskaufvertrag). Revoking a
will works much the same as in England, except with respect to marriage. One
particular form of revocation in Germany occurs when a will is found to be
inconsistent with a pactum successorium; in such an event the will is wholly or pro
tanto revoked.74
Beneficiaries and their blood relations to the fourth degree may not be
witnesses. Nuncupative wills are not recognized. Soldiers' and sailors' wills are
subject to special rules as in most other countries. Full freedom of testation only
exists when the testator has no ascendants or descendants, otherwise the
74 Id.
65
disposable portion of his estate is constrained by the rules of forced heirship: if the
testator has one child he may only dispose of half his estate, if two only one-third, if
three or more only one-fourth; if he has no descendants but ascendants in both lines
he may dispose of half, if ascendants in one line only he may dispose of three-
fourths. The full age of testamentary capacity is 21 years, but minors over the age of
16 may dispose by will of half of the estate of which they could dispose had they
been of full age. There is no restriction against married women making wills. Will
substitutes such as will contracts or a pactum successorium (aka contract
concerning succession) are invalid (Art. 791 French Civil Code).
The Civil Code of southern continental Europe are in general accordance with
French law.
e. South Korea
There are five types of legally accepted wills in South Korea. 75
i. Holographic wills. Holographic wills must be entirely hand-written by the
testator, including the date of writing, address, and signature. The testator must put
their fingerprint or seal on the document.
75 Wills and Inheritance Law in South Korea, Lee Yun Je, Angloinfo South Korea, available at
https://www.angloinfo.com/how-to/south-korea/money/wills-inheritance, last accessed June 2, 2022
66
ii. Recording wills. A will can be made by audio recording. The testator
must record their testament, name, and the date. At least one witness, present
during the testament, must record the exactness of the will and their name.
iii. Authentic wills. An authentic will must involve two witnesses and the
main points must be spoken in the presence of a notary public. The testator dictates
the will, and the notary public writes it out. After the testator and witnesses accept
the exactness of the will, they sign it respectively. The will is kept by the notary
public. An authentic will is generally considered the most legally secure type of will.
iv. Secret wills. If the testator wants the content of the will to be kept secret,
a secret will can be made. After the testator writes a will with their name, it is sealed
in order to keep it secret. The testator declares the sealed document to be their will
in the presence of two witnesses and the testator and witnesses sign on the sealed
envelope with the date. The secret will must be submitted to either a notary public or
a clerk of a family court, in order to get an officially stamped date on the document,
within five days from the date written on the envelope.
v. Dictation wills. A dictation will is allowed only in emergency
circumstances. In order to make a dictation will, it must be impossible for the testator
to make an alternative type of will because of illness or imminent death. The testator
must orally declare his will to one of two witnesses present, and the person to whom
67
the oral declaration is made must write it down and read it. Then the testator and
each witness, after having acknowledged the writing to be due and correct, must
sign and seal the will. The will must be submitted by the witness to the family court
for inspection and approval within seven days of the end of these emergency
circumstances.
Each type has requirements which must be met in order to make the will
valid. All wills can be altered by means of an amendment attached to the will or by
making a new will. The newer will applies. If the type of will requires a witness, the
witness must satisfy the eligibility requirements set by the law. 76
f. The Code of Muslim Personal Laws of the Philippines 77
The New Civil Code of the Philippines does not recognize nuncupative wills. 78
However, the Code of Muslim Personal Laws allows members of the Muslim
Religion to make oral wills. Under the said code, a will (wasiya)79 is a declaration
whereby a person is permitted, with the formalities prescribed by law, to control the
76 Id.
77 A Decree To Ordain and Promulgate a Code Recognizing the System of Filipino Muslim
Laws, Codifying Muslim Personal Laws, and Providing for its Administration and for Other Purposes,
Presidential Decree No. 1083 (Code of Muslim Personal Laws)
79 Art. 101, Title II, Code of Muslim Personal Laws
68
disposition after his death of not more than one-third of his estate, if there are heirs,
or the whole of it, if there are no heirs or distant kindred.
The making of a will is strictly a personal act; it cannot be left in whole or in
part to the discretion of a third person or accomplished through the instrumentality of
an agent. A will may be declared orally or in writing in a manner that shows clearly
the intention of the testator to execute it in the presence of a least two competent,
credible and disinterested witnesses.80 No nuncupative will shall pass any property
of the decedent unless it is proved and allowed in accordance with a solemn oath or
affirmation of all the witnesses who attested to its declaration. 81
B. Related Study
In 2017, a study entitled, “Dicat Testor et Erit Lex: The Feasibility of
Electronic Nuncupative Wills” by Atty. Mar Al Kriston de Guzman Lipat, proposed for
the feasibility of recognizing the validity of electronic nuncupative wills in the
Philippines.
Accordingly, Lipat (2017) recommended that the Civil Code provisions
relating to Wills and Succession be amended to recognize the validity of electronic
nuncupative wills including the requirements for probate. His work provided for a
69
general proposal to accept nuncupative wills as a valid form of a will in the
Philippines.
Specifically, he recommended that a will may be made orally using a
smartphone, iPhone, iPad, tablets and the like whether using the front camera or a
rear camera, provided that animus testandi is clearly manifest, provided further that
the voice quality and image quality are clear, provided finally that three copies of the
same shall be saved in a USB, flash drive, hard drive, memory card, memory stick,
or other data saving devices. Lipat (2017) proposed that an electronic nuncupative
will need not be witnessed.
In addition, he recommended that in case of loss, destruction or in case the
USB, flash drive, hard drive, memory card, memory stick or other data saving
devices used in saving the copies of the electronic nuncupative will cannot be
produced in court, the offeror, upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may prove its contents by a copy in
some other data saving device or in a computer, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the order stated.
He likewise suggested that in case of doubt as to the authenticity of the will,
video forensic experts may be hired by the probate courts to assist in the
70
determination of authenticity of the videos. The party questioning the authenticity of
the electronic nuncupative will shall bear the expenses in the hiring of such experts.
Lipat (2017) also provided for the procedure regarding the custody and
safekeeping of the will. He proposed that the testator, during his lifetime, may
deposit with the Clerk of Court of the Regional Trial Court which has territorial
jurisdiction over his residence the saved copy of his electronic nuncupative will.
According to Lipat, if the electronic will is encrypted, he shall deposit with the Clerk
of Court the Code that may decrypt such video.
Finally, the proponent in the aforementioned study suggested that the Rules
on Electronic Evidence shall apply suppletorily in the determination of the
authenticity of the electronic will and to the Rules of Court on Probate. The Supreme
Court shall conduct seminars on electronic nuncupative wills so that members of the
bench and bar will be equipped with the technical knowhow on technological
advancement which includes electronic nuncupative wills.
C. Synthesis
The review of related literature and research are clearly material to this study
because they can lay the foundation and bases of the feasibility of adopting and
recognizing a video-recorded will in Philippine Jurisdiction. Likewise, the foregoing
71
research may assist in the formulation of safeguards and requirements for the
probate of the said will.
72
CHAPTER III
RESEARCH METHODOLOGY
This chapter illustrates the methodology employed by the researcher in order
to supply the answers to the research problems and to achieve the objective of the
study. Additionally, the manner of collecting data to arrive and formulate the
conclusions on the proposal is presented.
A. Descriptive Research Design
The researcher used descriptive research design with focus on the
practicability of adopting a video-recorded will in Philippine jurisdiction and the
propriety of adopting relevant foreign laws regarding the same in the Philippines. It
characterizes an analytical mode of inquiry that involves ample and accurate
understanding of the related materials necessary to obtain answers to the questions
during the study. In this approach, the researcher set aside the preconceived notions
about electronic nuncupative wills.
Clearly, the method is appropriate to this study since it provides the proper
process in collecting the relevant sources which may explain the different areas of
research. As the study deals on the feasibility of electronic nuncupative wills and the
611
manner in which they can be probated, the researcher made use of a qualitative
analysis of the information found in the relative books, articles, statutes, Supreme
Court decisions, and other foreign materials.
Descriptive research is the most widely-used research design as indicated by
numerous theses, dissertations and researches. The primary aim of which is to
describe existing beliefs, opinions or conditions of a social group, compare sub-
groups in terms of selected variables and to determine the relationship between or
among variables covered.
B. Sources of Data
The study utilizes primary and secondary resources as its main sources of
data relative to the subject matter of inquiry. The data gathered were taken from the
provisions of relative laws, doctrines and principles under the New Civil Code and
other relevant domestic laws like the E-Commerce Act and Rules on Electronic
Evidence.
For the secondary sources, foreign jurisprudence as well as related foreign
laws, news articles online, thesis or research papers, which all tackle traditional
forms of wills, and electronic and nuncupative wills are also used. On the other
hand, these resources, specifically the different jurisdictions cited, although having
75
only a persuasive effect, still helped in providing cross-check information,
commentaries and restatement of the law to help explain the primary sources of law
which is closely related to existing laws and case laws in the Philippines and which
is advantageous to the thorough understanding of the subject matter. Aside from
that, they assisted in the analysis of the domestic laws which are essential variables
in the process of framing the conclusion to the problem. The Internet was highly
utilized in order to obtain studies and literature that are not likely available in the
Philippines.
C. Treatment of Data and Data Analysis
The process used in this research is the examination and analysis of
gathered relevant materials. All data were scrutinized and collated in accomplishing
this study. This allows the researcher to gather information and explore different
areas of interest without having to go through the process of personally collecting
data in the field. There is no further manipulation on the research facts collected.
The gathered data are only studied and interpreted to come up with a formulation of
the proposal.
D. Limitation
76
This research was conducted by examining related resources and scholarly
materials and published articles that were conducted to come up with the intended
output of the study. The study did not apply the survey and questionnaire method of
collection of data since opinions, suggestions gathered from the public are not
reliable references to derive answers to the research problem. Only those expert
studies, commentaries, and interpretations of the Law on Wills and Succession were
made part of the study.
77
CHAPTER IV
PRESENTATION, ANALYSIS AND INTERPRETATION OF DATA
This chapter provides analysis and interpretation of the data collected from
various relevant instruments specifically on books, articles, related studies, relevant
domestic and foreign jurisprudence and cases, with the view on arriving at the
empirical solution to the problems stated in Chapter 1. The findings presented
exhibit the result of the analysis of the existing research facts.
A. Wills in the Philippines and How Are They Treated
1. Under the Civil Code of the Philippines
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, to take effect after
his death.82 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 the last will and testament. The person who is given
personal property through a will is called the “legatee,” while the person who is given
real property is called the devisee. The person named in the will who is entrusted to

611
implement its provisions is called the “executor.” If the executor is a female, she is
formally known as the “executrix.”
From the above codal definition and from related provisions of the New Civil
Code it is evident that a will should have the following characteristics, to wit:
1. It is a strictly personal act;
2. It is an individual and unilateral act;
3. It is a free and voluntary act;
4. It is a formal act and solemn act;
5. It is a disposition of property;
6. It is an act mortis causa; and
7. It is ambulatory and revocable during the testator’s lifetime.
The first and most peculiar characteristic of a will is that it is a strictly personal
act. Consequently, the making of a will cannot be delegated or left in whole or in part
to the discretion of a third person, or accomplished through the instrumentality of an
agent or attorney.83 In addition, the duration or efficacy of the designation of heirs,
79
devisees, or legatees, or the determination of the portions which they are to take,
when referred to by name, cannot be left to the discretion of a third person. 84 The
law further provides that the testator may not make a testamentary disposition in
such manner that another person has to determine whether or not it is to be
operative.85 It must be observed, however, that the mere act of drafting or writing of
the will does not fall within the purview of the prohibition. Thus, it has been held that
who does the mechanical work of writing the will is a matter of indifference.
Since the will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be strictly
followed. Thus, a will cannot be the subject of a compromise agreement which would
thereby defeat the very purpose of making a will.
Second, a will is a unilateral disposition of property. It means that no
acceptance by the transferees in needed while the testator is still alive; any
acceptance made prematurely is useless. As a consequence, testamentary
disposition produce juridical or legal effects only after the death of the testator. A will
acquires binding force only at the death of the testator; hence, it follows that no

85 Art 787, Civil Code of the Philippines
80
present rights are conferred at the time of its execution, and no title vests in the
beneficiary during the life of the testator.
Third, a will must be executed voluntarily and free from any vice of consent.
The testator must have made and executed the will freely, knowingly, and
voluntarily, otherwise, it shall not be admitted for probate and shall not be allowed. 86
Fourth, a will must be executed in accordance with the formalities prescribed
by law. The validity of a will as to its form depends upon the observance of the law at
the time it is made.87 Consequently, if a law different from the law in force at the time
of the execution of the will goes into effect before or after the death of the testator,
such a law shall not affect the validity of the will, provided that such will was duly
executed in accordance with the formalities prescribed by the law in force at the time
it was made. The rule stated in this article is but an expression of the view, which is
upheld by the weight of authority, that the formal validity of a will is to be judged not
by the law in force at the time of the testator’s death, or at the time the supposed will
is presented in court for probate, or when the petition is decided by the court, but at
the time the instrument was executed. One reason in support of the rule is that
although the will operates only after the death of the testator, in reality, his wishes

81
regarding the disposition of his estate among his heirs, devisees and legatees are
given solemn expression at the time the will is executed and thus becomes a
completed act.88
Fifth, a will disposes of the testator’s estate, whether totally or partially, in
accordance with his wishes. This is expressly enunciated in Art. 783 of the New Civil
Code.89 Note that if the will does not dispose of the testator’s property, such as when
a person is merely named executor, or when a natural child is recognized, while the
instrument may in one sense still be called a will, still such will not be probated, for
under our law, it would seem that a probate is needed only if property is to be
conveyed by testamentary succession 90. Furthermore, it has been held that for the
purpose of recognizing a natural child by virtue of a will, the will need not be
probated91 though it must, of course, still be a valid will.
Sixth, a will is effective mortis causa, i.e. it produces effects only after the
death of the testator; hence, the will is termed ambulatory. 92
88 Enriquez v. Abadia, G.R. No. L-7188, August 9, 1954

89 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, to take effect after his death (emphasis
supplied)
91 Guevara v. Guevara, G.R. No. L-7564, December 29, 1943
82
Lastly, and in relation to the sixth characteristic of a will, the same is
ambulatory and revocable during the testator’s lifetime. It means that a will may be
changed or revoked, at any time prior to the testator’s death; and until admitted to
probate, it has no effect whatever and no right can be claimed thereunder, the law
being quite explicit: “No will shall pass either real or personal, unless it is proved and
allowed in accordance with Rules of Court.93
In the Philippines, there are only two kinds of wills allowed. First, the notarial
or attested which is governed by Arts. 805-808 of the New Civil Code. Every will,
other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator’s 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
93 Art. 838, par. 1, Civil Code of the Philippines
83
page thereof, or caused some other person to write his name, under his express
direction, 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. 94 Every
will must be acknowledged before a notary public by the testator and the witnesses.
The 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.95 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. 96 If the testator is blind, the
will shall be read to him twice, once by one of the subscribing witness and again, by
the notary public before whom the will is acknowledged. 97
Second, the holographic will, which is governed by Arts. 810-314 of the New
Civil Code. A person may execute a holographic will which 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. 98 In the
probate of a holographic will, it shall be necessary that at least one witness who
98 Art. 810, New Civil Code
84
knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. if the will is contested, at least
three of such witnesses shall be required./ In the absence of any competent witness
referred to in the preceding paragraph, and if the court deem it necessary, except
testimony may be resorted to.99 In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in order to make them
valid as testamentary dispositions.100
2. Under Case Laws and Philippine Jurisprudence
Decades ago, Justice Moreland, in his dissenting opinion in Santos v.
Manarang,101 wrote:
A will is the testator speaking after death. Its provisions have

substantially the same force and effect in the probate court as
if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That
was the special purpose of the law in the creation of the

101 Santos v. Manarang, G.R. No. L-8235, March 19, 1914
85
instrument known as the last will and testament. Men wished to
speak after they were dead and the law, by the creation of that
instrument, permitted them to do so x x x. All doubts must be
resolved in favor of the testator having meant just what he
said.102
Hence, it follows that any capacitated person can dictate how he wants his
assets to be distributed after his death, provided that the will is compliant with the
requirements laid down under the Civil Code.
In the aforecited case, it is evident that the time-honored principle of “Dicat
testor et erit lex” (what the testator says is the law) is well-respected by the courts
and in our jurisdiction. As proof, the Philippines’ current law on succession
recognizes the fundamental principle that the intent or the will of the testator is the
supreme law in succession, citing the case of Seangio v. Reyes, G.R. Nos. 140371-
72, November 27, 2006. The law favors testacy over intestacy. 103 In cases that there
have been an already instituted intestate proceeding, and a will is found thereafter,
the law provides that the probate of the will is mandatory and therefore, testate
proceedings takes precedence over intestate proceedings. 104 If a will is then
probated, the intestate case should be consolidated with the testate proceedings
and the judge assigned to the testate proceeding should continue hearing the two
102 Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006
103 Seangio v. Reyes, G.R. Nos. 140371-72, November 27, 2006
104 Baluyot v. Panio, G.R. No. L-42088, May 7, 1976
86
cases.105 The rationale behind this doctrine is that intestacy is only the “presumed
will of the decedent,” 106 and therefore, no presumption is necessary if an actual will
which clearly determines the testator’s wishes exists and such is admitted to
probate. In other words, what the testator says is indeed the law, and in the words of
the Supreme Court, the supreme law.
Philippine case laws have always ruled in favor of a decedent’s freedom to
dispose of his estate. In the early case of Natividad v. Gabino107, the Supreme Court
held that:
A person is entirely free to make his will in such manner as

may best please him, provided the testamentary provisions
conform to law and meet its requirements. He may impose
conditions, either with respect to the institution of heirs or to the
designation of legatees and, when the conditions imposed
upon the former or the latter do not fall within the provisions of
those articles of the Civil Code touching heirs and legatees,
they shall be governed by the rules therein prescribed for
conditional obligations. (Civ. Code, arts. 790 and 791.)
And in the case of Rodriguez v. CA108, the High Court ruled that:
Respect for the will of a testator as expressed in his last

testamentary disposition, constitutes the principal basis of the
rules which the law prescribes for the correct interpretation of
all of the clauses of the will; the words and provisions therein
105 Roberts v. Leonidas, G.R. No. L-55509, April 27, 1984
106 Suntay v. Suntay, G.R. No. 183053, June 16, 2010
107 Natividad v. Gabino, G.R. No. 11386, March 31, 1917
108 Rodriguez v. CA, G.R. No. L-28734, March 28, 1969
87
written must be plainly construed in order to avoid a violation of
his intentions and real purpose. The will of the testator clearly
and explicitly stated must be respected and complied with as
an inviolable law among the parties in interest. Such is the
doctrine established by the Supreme Court of Spain, constantly
maintained in a great number of decisions, among which are
those of March 24, 1863, April 28, 1882, and December 16,
1903.
As early as 1926,109 the Supreme Court has been ruling that:
Moreover, so compelling is the principle that intestacy should

be avoided and the wishes of the testator allowed to prevail
that we could even vary the language of the will for the purpose
of giving it effect. Thus: “Where the testator’s intention is
manifest from the context of the will and surrounding
circumstances, but is obscured by inapt and inaccurate modes
of expression, the language will be subordinated to the
intention, and in order to give effect to such intention, as far as
possible, the court may depart from the strict wording and read
a word or phrase in a sense different from that which is
ordinarily attributed to it, and for such purpose may mold or
change the language of the will, such as restricting its
application or supplying omitted words or phrases.”
It is also worth mentioning that the Supreme Court of Spain, relying on the
Spanish Civil Code, from which our laws on succession were patterned, adopted the
same view.110 Hence, in Villaflor v. Juico, the High Court, quoting its decision, held
that:
In consonance with this rule, this Supreme Court has laid the
doctrine in In re Estate of Calderon, 26 Phil., 233, that the
110 Villaflor v. Juico, G.R. No. L-15737, September 4, 1926
88
intention and wishes of the testator, when clearly expressed in
his will, constitute the fixed law of interpretation, and all
questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testator's words, unless it
clearly appears that his intention was otherwise. The same rule
is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo
1918; 28 Mayo 1912; 30 Abril 1913; 16 Enero 1915; 23 Oct.
1925).
La voluntad del testador, clara, precisa y constantemente

expresada al ordenar su ultima voluntad, es ley unica,
imperativa y obligatoria que han de obedecer y cumplir
fielmente albaceas, legatarios y heredera, hoy sus sucesores,
sin que esa voluntad patente, que no ha menester de
interpretaciones, pues no ofrece la menor duda, pueda
sustituirse por ningun otro criterio de alguno de los
interesados, ni tampoco por el judicial. (Tribunal Supremo of
Spain, Sept. 20, March 1918)
Based on the foregoing, it is submitted that whether a document qualifies as a
valid will is a function of two variables: 1) the formalities of a will (i.e. the statutory
requirements for a valid will), and 2) the testator’s freedom of disposition vis-à-vis his
intent. A testator has a nearly unrestricted right to dispose of his or her property as
he or she pleases. To ensure the authenticity and the due execution of the will,
however, the testator must follow a set of formalities in creating and executing a will,
which traditionally, these are writing, witnesses requirement, signature and
attestation. Hence, even if a will is the testator speaking after death, and even if the
89
law listens and yields obedience, if in the preparation thereof or in the disposition
made therein, there is a failure to follow a legal norm, the will will be avoided.
Thus, in Enriquez v. Abadia,111 the Honorable Court declared the following:
Of course, there is the view that the intention of the testator

should be the ruling and controlling factor and that all adequate
remedies and interpretations should be resorted to in order to
carry out said intention, and that when statutes passed after
the execution of the will and after the death of the testator
lessen the formalities required by law for the execution of wills,
said subsequent statutes should be applied so as to validate
wills defectively executed according to the law in force at the
time of execution. However, we should not forget that from the
day of the death of the testator, if he leaves a will, the title of
the legatees and devisees under it becomes a vested right,
protected under the due process clause of the constitution
against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate such
a will. By parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal requirements
at the time of its execution then upon his death he should be
regarded and declared as having died intestate, and his heirs
will then inherit by intestate succession, and no subsequent
law with more liberal requirements or which dispenses with
such requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of their
vested rights in the estate by intestate succession. The general
rule is that the Legislature cannot validate void wills (57 Am.
Jur., Wills, Sec. 231, pp. 192-193).
B. Video-recorded Will: Its Legality, Validity, and How it Operates in
Select Foreign Jurisdictions

111 Enriquez v. Abadia, G.R. No. L-7188, August 9, 1954
90
At the outset, a video-recorded will is categorized as a nuncupative or oral
wills. A nuncupative will is a will not written, but is declared orally by the testator. It is
often referred to as a deathbed will, as they typically involve the testator speaking
his bequests to witnesses because he or she has no option to make a written or
typed will.112
The following discussions will specifically focus on the legality and validity of a
video-recorded will in select foreign states and countries, as well as how this type of
will operates in said jurisdiction. The discussions contain some States previously
mentioned in Chapter 2, however, this chapter provides for a more in-depth analysis
of a video-recorded will, as it does, until the probate proceedings.
1. Select American States
i. Indiana
The state of Indiana expressly recognizes nuncupative wills. This is shown by
one of the provisions in the Indiana Code which specifically provide: All wills except
nuncupative wills shall be executed in writing. 113 Impliedly, a will may be executed
orally in Indiana; hence, making video-recorded wills valid in said State. Moreover,
112 Holographic and Video Wills: Are they Legit?, Ferrante N., & Dill, J., February 5, 2019,
available at https://fdhlegal.com/holographic-and-video-wills-are-they-legit/, last accessed June 5,
2022
113 Indiana Code of 1975, Title 29, Chapter 5, Section 2(a)
91
Chapter 5, Title 29 of the said Code lays the rules for nuncupative wills. Accordingly,
Sec. 4(a), Chap. 5, Title 29 applies to a nuncupative will which may be made only by
a person in imminent peril of death, whether from illness or otherwise, and shall be
valid only if the testator died as a result of the impending peril, and must be:
(1) Declared to be his will by the testator before two (2) disinterested
witnesses;
(2) Reduced to writing by or under the direction of one (1) of the witnesses
within thirty (30) days after such declaration; and
(3) Submitted for probate within six (6) months after the death of the testator.
Sec. 4(b) states that nuncupative will may dispose of personal property only
and to an aggregate value not exceeding one thousand ($1,000) dollars, except that
in the case of persons in active military, air or naval service in time of war the
aggregate amount may be ten thousand ($10,000) dollars.
A nuncupative will does not revoke an existing written will. Such written will is
changed only to the extent necessary to give effect to the nuncupative will.
(Formerly: Acts 1953, c.112, s.504).
From the foregoing, it appears that the State of Indiana accepts a video-
recorded will as a valid form of a will; albeit, its laws do not dictate the specific
guidelines with regard to the manner of executing or drafting said type of will. What
92
its laws supply are merely the special circumstances as to when a testator in Indiana
can opt to have a video-recorded will.
In addition, Chapter 21, Title 29 of the same code finds relevance to the issue
of admissibility of a video-recorded will. Under Sec.5, the Code says that subject to
the Indiana Rules of Evidence and the Indiana Rules of Trial Procedure, a video
recording of an electronic will's execution or a video recording of a testator either
before or after the execution of an electronic will may be admissible as evidence of
the following:
(1) The proper execution of an electronic will in compliance with section 4 of
this chapter.
(2) The intentions of the testator.
(3) The mental state or capacity of the testator.
(4) The absence of undue influence or duress with respect to the testator.
(5) Verification of the testator's identity.
(6) Evidence that a complete converted copy of an electronic will should be
admitted to probate.
(7) Whether a will whose execution failed to fully comply with section 4 of this
chapter should be admitted to probate as a valid traditional paper will.
93
(8) Any other matter the court considers relevant to the probate of an
electronic will. (As added by P.L.40-2018, Sec.2).
The above provisions mean that a video-recorded will may also be used as a
supplement of a prior electronic will executed by the testator. The same also
provides for the factors that the probate court will consider when ruling for the
admissibility of a video-recorded will in Indiana.
ii. Mississippi
Mississippi is one of the few states in the USA where oral or nuncupative wills
are valid. It recognizes a video-recorded will as a nuncupative will in certain specific
circumstances.114 The laws regarding wills, its execution and validity are set forth in
the Mississippi Code Annotated, Title 91 Trusts and Estates, specifically Chapter 5
on Wills and Testaments. Generally, the Code provides that a will must be in writing,
signed by the testator and by two witnesses. 115 Video-recorded wills as a form of
nuncupative wills are allowed in this state under Sec. 15, Chap. 5, Title 91.
114 Mississippi Last Will and Testament, Kaminsky, Michelle, May 2, 2022, available at
https://www.legalzoom.com/articles/mississippi-last-will-and-testament, last accessed June 6, 2022
115 Mississippi Code of 2019, Title 91, Chapter 5, Section 1
94
Accordingly, A nuncupative will shall not be established unless it be made in the time
of the last sickness of the deceased at his or her habitation or where he or she hath
resided for ten days next preceding the time of his or her death, except when such
person is taken sick from home and die before his or her return to such habitation,
nor where the value bequeathed exceeds One Hundred Dollars ($100.00) unless it
be proved by two witnesses that the testator or testatrix called on some person
present to take notice or bear testimony that such is his or her will, or words to that
effect.
On the matter of probating a video-recorded will in Mississippi, the Code
provides that the probate court will not accept any nuncupative will until 14 days
after the testator’s death, nor until the widow (if any) and other next of kin, if they
reside in Mississippi, have been called upon to contest if they so desire. 116
Furthermore, it states that after six months have elapsed from the time of speaking
the alleged testamentary words, testimony shall not be received to probate a
nuncupative will unless the words, or the substance thereof, shall have been
reduced to writing within six days after speaking the same. 117
116 How to Make an Online Will in Mississippi, Annie Mueller, June 7, 2021, available at
https://www.seniorsmatter.com/how-to-make-an-online-will-in-mississippi/2575330/, last accessed
June 6, 2022
117 Sec. 19, Chap. 5, Title 91, Mississippi Code
95
In addition to the above, any active duty soldier or mariner at sea may
distribute any property in a nuncupative will. 118
iii. New York
New York law allows for nuncupative or oral wills in limited circumstances.
Specifically, the Consolidated Laws of New York provide for the following: 119
Sec. 3-2.2. Nuncupative and holographic wills:
(a) For the purposes of his section, and as used elsewhere in

this chapter:
(1) A will is nuncupative when it is unwritten, and the making

thereof by the testator and its provisions are clearly established
by at least two witnesses
xxx
(b) A nuncupative or holographic will is valid only if made by:
(1) A member of the armed forces of the United States while in

actual military or naval service during a war, declared or
undeclared, or other armed conflict in which members of the
armed forces are engaged.
(2) A person who serves with or accompanies an armed force

engaged in actual military or naval service during such war or
other armed conflict.
118 Id at 115.
119 New York Consolidated Laws Estates, Powers & Trusts Article 3: Substantive Law of Wills
Part 2, Sec. 3, Art. 3, Part 2, Chap. 17-B, New York Laws
96
(3) A mariner while at sea
(c) A will authorized by this section becomes invalid:
(1) If made by a member of the armed forces, upon the

expiration of one year following his discharge from the armed
forces.
(2) If made by a person who serves with or accompanies an

armed force engaged in actual military or naval service, upon
the expiration of one year from the time he has ceased serving
with or accompanying such armed force.
(3) If made by a mariner while at sea, upon the expiration of

three years from the time such will was made.
(d) If any person described in paragraph (c) lacks testamentary

capacity at the expiration of the time limited therein for the
validity of his will, such will shall continue to be valid until the
expiration of one year from the time such person regains
testamentary capacity.
(e) Nuncupative and holographic wills, as herein authorized,

are subject to the provisions of this chapter to the extent that
such provisions can be applied to such wills consistently with
their character, or to the extent that any such provision
expressly provides that it is applicable to such wills.
With regard to matters of probate, New York laws provide that a will only has
to be submitted to probate if the decedent’s remaining assets are worth $30,000 or
more. Such assets do not include any property or funds that transferred via pay on
death accounts, in trust for (ITF) accounts, or joint ownership, as these automatically
97
bypass the probate process. If the remaining assets are worth less than that amount,
the decedent’s family may opt for small estate administration instead of full probate.
The Surrogate’s Court for the county in New York where the decedent passed
away is the body tasked for probate proceedings if a certain will qualifies. In such
case, the will is submitted to the Court. Once the will is submitted, the Surrogate’s
Court will decided as to whether or not the will is valid (that is, whether or not the
decedent properly executed the will) and accurately reflects the decedent’s wishes
regarding his or her property.
Such Court however, does not provide for the specific probate process in
case of a video-recorded, or nuncupative will. What it lays down instead are the
steps for probating a traditional form of will, to wit: First, the decedent’s original will,
along with a probate petition, are filed with the court. The court will then issue notice
to anyone who has an interest in the will (i.e., could otherwise inherit under New
York intestate laws or under a previous will), and those people can object to the
validity of the will by filing a will contest. The court may appoint guardian ad litem (for
the proceeding) for anyone who is a minor or under an incapacity.
Once the court establishes that jurisdiction is valid in the New York State
County where the will was submitted and that the will itself is valid, the court will
grant the probate (via a court order or decree) and will subsequently issue letters
98
testamentary to the executor or executors whom the decedent named in his or her
will.
The executor has the authority to take charge of and administer the
decedent’s estate. Specifically, the executor must inventory and identify all of the
decedent’s property, have it appraised, pay debts and taxes on the property, and
distribute the property in accordance with the decedent’s will.
By virtue of the silence of the law, the same procedure applies for the probate
of a video-recorded will.120
iv. Kansas
Handwritten wills are not valid in Kansas, but oral or nuncupative wills are
acceptable, provided they are spoken during the testator’s final sickness. A oral or a
video-recorded will in Kansas can only give away personal property and only if it is
put into writing and subscribed to by two competent, disinterested witnesses within
30 days after speaking the testamentary words.121
In Kansas, the laws regarding the form, execution, witnessing, and
consequently, the validity of a will are set forth in Kansas Probate Code, specifically
120 Speeding You Through the New York State Probate Process, Goldfarb, D., available at
https://www.seniorlaw.com/speeding-through-ny-state-probate-process/, last accessed June 6, 2022
121 Kansas Inheritance Laws: What You Should Know, Fisher, S., available at
https://smartasset.com/financial-advisor/kansas-inheritance-laws, last accessed June 6, 2022
99
in Secs. 59-601, Article 6 on Wills, Chapter 59. Specifically, it provides that an oral
will made in the last sickness shall be valid in respect to personal property, if
reduced to writing and subscribed by two competent, disinterested witnesses within
thirty days after the speaking of the testamentary words, when the testator called
upon some person present at the time the testamentary words were spoken to bear
testimony to said disposition as his or her will. In relation to this, Sec. 616 states that
“no will shall be effectual to pass real or personal property unless it shall have been
duly admitted to probate.” Furthermore, the same Code provides for the limitation on
probate of oral will. No oral will of a testator who died while a resident of Kansas
shall be admitted to probate unless an application is made therefor within six months
after the death of the testator except as provided by K.S.A. 59-2229 and 59-2230,
and amendments thereto.122
2. India
As provided under the general provisions of the Indian Succession Act of
1925, a will is a legal declaration of the intention of a person who is desirous of
transferring his wealth to the subsequent generations. It takes effect after the death
of the maker of the will. A will is a unilateral document which can be revoked or
122 Sec. 619, Art. 6, Chap. 59, Kansas Probate Code
100
altered by the person who made the will at any time he is competent to transfer his
property under the relevant succession law governing that individual. 123 Said Act
governs the legal declaration made by a Hindu, Buddhist, Sikh, or Jain. Whereas,
Mohammedan can transfer their wealth in accordance with Muslim Law and are not
governed by the Indian Succession Act of 1925. 124
Under Section 63(c) of the Indian Succession Act, 1925, 125 a will is required to
be attested by two or more witnesses in the presence of the testator, each of whom
have seen the testator sign or affix his mark to the will or have received personal
acknowledgement from the testator that he himself has signed the Will.
Subsequently, at the time of obtaining probate, the attesting witnesses, or one of
them is required to depose to this fact. This is because as per Section 68 of the
Indian Evidence Act, 1872,126 if a document is required by law to be attested, it shall
123 Digital Wills in India: Legal or Illegal, Dalmia, V.P., & Jain, S., January 3, 2020, available at
https://www.mondaq.com/india/wills-intestacy-estate-planning/879416/digital-wills-in-india-legal-or-
illegal, last accessed June 6, 2022
124 Id.
125 The will shall be attested by two or more witnesses, each of whom has seen the testator sign
or affix his mark to the will or has seen some other person sign the will, in the presence and by the
direction of the testator, or has received from the testator a personal acknowledgment of his signature
or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary that more than one witness be present at the
same time, and no particular form of attestation shall be necessary.
126 If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall be necessary to call an attesting witness in proof of the execution of any
document, not being a Will, which has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have
101
not be used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive, and subject to
the process of the court and capable of giving evidence.
Therefore, on a conjoint reading of section 63 of the Indian Succession Act,
1925, and section 68 of the Indian Evidence Act, 1872, at least one of the attesting
witnesses will need to depose for the purpose of proving due execution of a will. In
the event that no such attesting witness is alive or can be found, then as per Section
69 of the Indian Evidence Act, 1872, 127 the will has to be proved by proving the
signature of the testator as well as that of at least one attesting witnesses.
Thus, as The Indian Succession Act, 1925 requires that the testator (the
person making the will) executes his will in the presence of two witnesses competent
to contract and such attesting witnesses must attest (i.e. sign) the will as attesting
witnesses, in the testator's presence and in the presence of each other, after they
have seen the testator executing the will. This requirement will have to be completed
on physical paper and not online.
been executed is specifically denied.

127 Proof where no attesting witness found. If no such attesting witness can be found, or if
the document purports to have been executed in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his handwriting, and that the signature of the person
executing the documents is in the handwriting of that person.
102
With regard to video-recorded wills, the same are accepted are accepted by
the Indian courts. Video recording of will is merely creation of an additional evidence
to prove that while making the will, the testator was in a sound and disposing mind,
and acted without any coercion, influence, duress or fraud. As such, there cannot be
a will made through video. The mandates of the Indian Succession Act for making a
Will have to be followed.128
However, in October 2009, while deciding a 1985 case seeking the grant of a
will, the New Delhi High Court had ruled that a video recording of a will is valid and
that it is possible to make a video recording of the entire process of execution of a
will.
The case of Sayar Kumari v. State and Ors. 129 was a petition under Sec. 222
of the Indian Succession Act seeking grant of probate of a will dated January 5,
1985 executed by Smt. Bhanwari Devi *(the testatrix), who died on March 10, 1985.
As culled from the facts of the case, Bhanwari Devi executed two wills, one in
August 2, 1983, and the other in August 6, 1983. The contents of the prior will were
more or less similar to that of the last will in that in both wills, Sagar Mal Bengani,
128 Digital Wills in India: Legal or Illegal, Dalmia, V.P., & Jain, S., January 3, 2020, available at
https://www.mondaq.com/india/wills-intestacy-estate-planning/879416/digital-wills-in-india-legal-or-
illegal, last accessed June 6, 2022
129 Sayar Kumari v. State & Ors., TEST CAS No. 29 of 1985, October 9, 2009, available at
https://indiankanoon.org/doc/23325398/, last accessed June 6, 2022
103
who is the testatrix’s only son, has not been given any share of the estate of the late
Bhanwari Devi. Specifically, the latter stated in his will that she “had given plenty to
Sagar Mal of my free will and he also took forcibly from me…I do not wish to give
him anything.” Her last will was recorded in a video film. It was duly attested by the
witnesses then present. One of the witnesses Dr. Dalal, who being a physician by
profession was competent to certify and in fact did certify that Bhanwari Devi was of
a sound health and mind at the time of the execution of a will.
The issue that was raised was the validity of the video-recorded will. In ruling
in the affirmative, the Court ruled that the video-recorded will was pleasantly
surprised to find that it had been duly video videographed, making the task of the
court easier. “The making of the video of the execution of the last will in this case
has made the task of this court easier in arriving at its conclusion as to its
genuineness,” Justice Muralidhar noted in his verdict.
He went on to suggest that the Delhi government should make a video
recording of the entire process of execution of a will at the time of registration in
order to make the court’s task easier and more transparent. Under the provisions of
the IT Act, there should be no difficulty in courts acting upon and accepting as
evidence video or digital recordings of the execution of wills, the Court said. “With
the availability of inexpensive gadgets like webcams, portable desktop computers
104
and connectivity through Internet, it should be possible to make a video-recording of
the entire process of execution of a will at the time of registration (by focusing on the
executor of the will and the attesting witnesses,” the Court said.
In the case under consideration, it directed a probate to be issued in favor of
Sayar Kumari, the testatrix’s great granddaughter.
3. Australia
i. Queensland
In Australia generally, for a document to operate as a valid will of a deceased,
it must:130
1) be in writing;
2) be signed at the end by the testator or by some other person in the
presence, and at the direction, of the testator;
3) appear from the will that the testator intended to give effect to the will by
signing it;
4) be signed by the testator or the signature must be acknowledged by the
testator in the presence of two or more witnesses present at the same time; and
5) be then signed by witnesses who sign their names as witnesses to the will
in the presence of the testator but not necessarily in the presence of each other.
130 The Wills Act of Australia 1936, SA 11
105
Despite that, courts have held that in certain circumstances, informal
documents which do not comply with the aforementioned requirements can operate
as a will of a deceased and they can include the following documents:
1) notes on a mobile phone131
2) Microsoft word documents132
3) Video recordings133
4) audio recordings134
Specifically in Queensland, the Radford v. White case made noise when the
Supreme Court ruled in favor of the validity of the subject will.
The case had its genesis when on November 21, 2016, a 39-year-old man
(Jay) bought a new motorcycle. His de facto partner, Radford wanted him to make a
Will before he picked up the motorcycle. Jay then recorded a video in which he said
what he wanted to happen with his assets should he pass away. In essence, he
131 In Re: Estate of the Deceased Karter Yu, Re:Yu [2013], November 6, 2013, available at
https://www.queenslandjudgments.com.au/caselaw/qsc/2013/322, last accessed June 6, 2022
132 Yazbek v. Yazbek, New South Wales Supreme Court Case No. 594 [2012], June 1, 2012,
available at https://app.justis.com/case/alan-yazbek-v-ghosn-yazbek-and-another/overview/
c5CJm1yZm5Wca, last accessed June 6, 2022
133 Radford v. White, Supreme Court of Queensland, Case No. 306 [2018], December 17, 2018,
available at https://www.queenslandjudgments.com.au/caselaw/qsc/2018/306, last accessed June 6,
2022
134 In Re: Estate of the Deceased Grant Patrick Carrigan, QSC 2018, September 6, 2018,
available at https://www.queenslandjudgments.com.au/caselaw/qsc/2018/206, last accessed June 6,
2022
106
directed that the majority of his assets go to Radford. Jay also said in the video
recording that nothing would go to his “soon to be ex-wife”, White.
Unfortunately, Jay had a road accident later that day on his newly bought
motorcycle. Jay sustained serious injuries including a severe head injury as a result.
Although he was subsequently discharged from hospital following surgery, he sadly
passed away not long after that due to other complications.
Radford made an application to the court seeking an order that the video
recording is a valid will. Jay’s ex-wife, White, opposed Radford’s application.
The question for the court was whether the video recording should be
declared as a valid will of Jay.
In the instant case, the Court declared that the video recording did form Jay’s
will pursuant to Sec 18(2) of the Succession Act 1981 (Qld) 135. In reaching this
conclusion, Judge Jackson held that:
1) the video recording was a “document”;
2) the document purported to state the testamentary intentions of Jay; and
3) Jay demonstrated that it was his then intentions that the document without
more operation as his last will.
135 The document or the part forms a will, an alteration of a will, or a full or partial revocation of a
will, of the deceased person if the court is satisfied that the person intended the document or part to
form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s
will.
107
ii. New South Wales
The New South Wales Supreme Court in 2015 has, for the first time, granted
probate of a will where the codicil to it was in the form of a video in the case of In Re:
Estate of the Deceased Wai Fun Chan.
The Court had never before admitted a video will to probate, nor considered
the relationship between Secs. 8136 and 10137 of the Succession Act or the New
136 When may the Court dispense with the requirements for execution, alteration or revocation of
wills?
(1) This section applies to a document, or part of a document, that —
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms—
(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her
will, or
(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to
form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person
intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part,
have regard to—
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of
statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision
under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State.
137 Can an interested witness benefit from a disposition under a will?
xxx
xxx
(3) A beneficial disposition is not void under subsection (2) if -
xxx
xxx
(c) the Court is satisfied that the testator knew and approved of the disposition and it was given or
made freely and voluntarily by the testator.
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South Wales Act (NSW Act). Sec. 8 sets out the circumstances under which the
formal requirements for execution, alteration, or revocations of wills can be
dispensed. The Wills Act’s analogous provision is found in Sec. 32 138 of the Wills Act
of 1970 (WA Act). Sec. 10 of the NSW Act sets out the circumstances under which
an interested witness can benefit from a disposition under a will.
In the Case of In Re: Estate of the Deceased Wai Fun Chan 139, the NSW
Supreme Court accepted a video-recorded will as a valid will.
In this particular case, a deceased Chinese widow left a formal written and
signed will on March 6, 2012 by engaging a solicitor to prepare said will. Two days
after executing her formal will, the Deceased wanted to amend it by granting special
138 Court may dispense with formal requirements:

(1) In this section and section 33, document means any record of information including –
xxx
xxx
(c) anything from which sounds, images, or writings can be reproduced with or without the aid of
anything else;
xxx
(2) A document purporting to embody the testamentary intentions of a deceased person, even
though it has not been executed in the manner required by this Act, constitutes —
(a) a will of the person; or
(b) an alteration to a will of the person; or
(c) the revocation of a will of the person; or
(d) the revival of a will or part of a will of the person, if the Supreme Court is satisfied that the person
intended the document to constitute the person’s will, an alteration to the person’s will, the revocation
of the person’s will or the revival of a will or part of a will of the person, as the case may be.
xxx
xxx
139 In Re: Estate of the Deceased Wai Fun Chan LWIN [2015], August 7, 2015, available at
https://pinpoint.cch.com.au/document/legauUio3138536sl1072664722/re-estate-of-wai-fun-chan, last
accessed June 6, 2022
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legacies to the first and second plaintiffs in acknowledgement of the additional
support they provided to the deceased.
Due to time and circumstances, the deceased was unable to return to her
solicitor’s office, and so sought to amend her formal will by a video codicil. Assisted
by the second plaintiff and the second plaintiff’s spouse, the deceased made an oral
statement recorded on video.
The plaintiffs, as the executors, sought a grant of probate of the formal will,
together with the video as a codicil. They accompanied their application with a
transcription of the video in original Chinese, and an English translation certified by a
registered translator.
That one of the witnesses to the video codicil was named as a beneficiary
and executor, whilst noted and considered, was not identified as an issue which
operated against the application to admit the informal codicil.
The question brought to the Court was whether said video is valid.
The Court held that the video should be admitted to probate as an informal
will under Sec.8 of the NSW Succession Act, as it satisfied all the requirements in
said section of the law. The tribunal noted that in the modern administration of its
probate jurisdiction, a premium is places on “substance over form” in ascertaining
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the testamentary intentions of a deceased person, and in seeing that his or her
beneficiaries get what is due to them.
In essence, the Court held that the video-recorded will was voluntarily made
and that the deceased:
1) clearly made the video voluntarily and “manifestly” knew and approved of
the dispositions she was making; and
2) made well-considered, calm and clear statements of intent, which were
reinforced by extrinsic evidence of the circumstances and lack of objection from any
other beneficiaries.
More specifically, it held that at the outset, a video-recorded will does not
meet the requirements for a formal will as set out in Sec. 6 of the NSW legislation,
nor would it under Sec. 8 of the Wills Act 1970 (WA). Both sections require a formal
will to be in writing, and so do not permit a video recording. However, a video falls
within the NSW and WA legislative definitions of a “document”, and so may be
admitted as an informal will.
In this case, Sec. 8 of the NSW Act enabled the Court to dispense with the
execution and alteration requirements and class a “document” not executed in
accordance with the NSW Act as part of the Will as it was satisfied the video was
intended to alter or form part of the Will.
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Section 32(2) of the Wills Act 1970 (WA), analogous to Sec. 8 of the NSW
Act, also permits a document “purporting to embody the testamentary intentions of a
deceased person” to constitute a Will or alteration to a will, even where it has not
been “executed in the manner required by this Act”.
Section 10 of the NSW Act provides that a disposition witnessed by an
interested party is generally void. Such a disposition will not be void if all persons
who would benefit from its avoidance consent in writing to allow the disposition, or if
the testator knew and approved of the disposition and made it freely and voluntarily.
The Court placed great weight on the deceased’s manifest approval of her
dispositions in the video, and ensured her intentions were upheld by not finding the
video void, despite being witnessed by an interested party. The now repealed Sec.
13 of the Wills Act 1970 (WA) was WA’s equivalent provision. Section 13 was
repealed due to concerns that it prevented intended beneficiaries from inheriting in
circumstances where, by innocent mistake or oversight, they witnessed a will, and
that would not give effect to the testator’s obvious intention.
What can be inferred based on the foregoing data is the fact that while a
written will still remain as the standard form of wills, nevertheless, the strict
formalities regarding its execution have been relaxed by the courts in order to give
life to the testator’s last wishes. Moreover, the aforementioned data proves so much
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about extraordinary circumstances where a testator, on his or her deathbed, may
validly resort to making an oral will with the confidence that the same will be
admitted for probate and consequently, be enforced. Also, the fact of availability of
technology even during the final hours before the death of a human being and the
relative ease through which the testator was able to make their own wills using their
smartphone or any other video-capturing device. The fact that they did not resort to
traditional means of making a will is worthy of attention to both the courts and the
legislation. It is apparent that these devices are available even during the final
moments of a person’s life. This is very important especially when one is already
terminally ill or in articulo mortis. Even though death is certain to happen, when it
happens is definitely another question which cannot be easily answered. This
uncertainty is somehow alleviated if oral wills, in the form of a video-recorded will will
be allowed in Philippine jurisdiction.
C. The Feasibility of Adopting Video-recorded Wills in the Philippines
The primary purpose for the formal requirements of wills is to regulate the
making of the will which involves the transfer of real rights effective upon the death
of the transferor. As in donations which require certain formalities for its validity, wills
must also comply with certain requirements which are, in essence, restrictions to
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prevent fraud. Inasmuch as the testator shall be already deceased by the time the
will shall be contested, save for ante-mortem probate, there is a need to insure that
his intent to distribute properties to certain persons is preserved, respected, and
carried out.140
The rationale of the Code Commission is an apparent reiteration of the
doctrine enunciated in the early case of Abangan vs. Abangan141, to wit:
The object of solemnities surrounding the execution of wills is

to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth
and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But on the other hand also, one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator‘s
will, must be disregarded.142
However, times have changed. The world continues to move forward with one
technological advancement after another. Handwritten letters, documents on hard
copy have been largely replaced by email, soft or internet copy of documents, text
messages, chats, among others. Contracts can be digitally signed.
140 Siegfried B. Mison (2010) Wills and Succession Better Explained, (Manila: Rex Book Store)
p. 68
141 Abangan v. Abangan, G.R. No. L-13431, November 12, 1919
142 Desiderio P. Jurado (2009), Comments and Jurisprudence on Succession, (Manila: Rex
Book Store), p.57
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Indeed, technology has changed the way we live our lives. Almost all of our
daily transactions in life – from shopping, loans and banking, business and personal
meetings, travel, education, and even check-ups and healthcare are made possible
and more convenient by technology.
Since it was in the 1940s, specifically in 1949 when the Honorable Code
Commission drafted and adopted the Civil Code, it is but logical to infer that the
drafters were not able to anticipate the feasibility of nuncupative, like a video-
recorded will, as the advent of technology only came in the early 1990s.
However, it bears stressing that in 1802, the Novisima Recopilacion de Leyes
de las Indias was formed by the rapporteur of the Chancellery of Granada, Don Juan
de la Reguera Valdelomar. It was published and became in force in 1805. It has
been the general legislation of Spain and its colonies. This early Spanish decree
provided mainly for the “Regalian Doctrine” introduced by the Spaniards into our
country through the laws of the Indies and the Royal Cedulas. It was a compilation of
twelve books, with Book X specifically dealing on civil law. Later on, it was repealed
by the Spanish Codigo Civil of 1889.143
143 UniversoJus.com, Definicion de Novisima Recopilacion, Agosto del Ano, 2015, available at
http://universojus.com/definicion/novisima-recopilacion, last accessed June 7, 2022
115
The Novisima Recopilacion was effective in the Philippines during a limited
period based on the pronouncement of the Supreme Court in the early case of
Matias vs. Alvarez.144 Accordingly,
The formalities prescribed by law for the execution of last wills

and testaments in these Islands in the year 1873 are to be
found in the provisions of the Novisima Recopilacion
touching such matters. (emphasis supplied)
The Court, in the same case, further held that:
The formality in the execution of wills knowns as la unidad del

acto which was prescribed in Law 3, Title 1, Partida 6, was
dispensed with under the provisions of the Novisima
Recopilacion.
It is therefore good to note that Philippine jurisdiction has allowed nuncupative
wills during the limited period when the Novisima Recopilacion was in place, to wit:
Should anyone make his nuncupative testament or last will

before a notary public, he should do so in the presence of at
least three witnesses who must be residents of the locality
wherein the will is made; and should be residents of the locality
wherein the will is made; and should the will be made without
the attendance of a notary public, the presence of at least five
witnesses, who, as stated above, shall be residents of the
locality, must be secured if they can be found therein; and
should neither the presence of a notary public nor that of five
witnesses be obtained in said locality there must be in
attendance at least three witnesses, residents thereof. 145
144 Matias v. Alvarez, G.R. No. 4077, March 17, 1908

145 Ley I, Titulo XVIII, Tomo X, Novisima Recopilacion, cited in Matias v. Alvarez, id..
116
The Matias case stressed that the validity of and efficiency of a nuncupative
testament is essentially found in the open and public statement of the will of the
testator, whether announced orally or by the reading of a paper, script, annotation,
or memorandum, in order that those present at its execution may understand and
remember its contents in the cases prescribed by law. The Court explained the
same in this wise:
If the expression of the will of the testator fully and legally

appears in any of the manners prescribed by law, the will is
valid.
The validity and efficiency of a nuncupative testament is
essentially found in the open and public statement of the will of
the testator, whether announced orally or by the reading of a
paper, script, annotation, or memorandum, in order that those
present at its execution may understand and remember its
contents in the cases prescribed by law.
It would be unreasonable to hold that "where the open and

manifest will of the testator" has been set out in an otherwise
valid document, such will would be declared invalid because of
the lack of a certificate of the clerk, as to an unimportant detail,
which was conclusively established by the testimony of
competent witnesses.
The case of Timbol v. Manalo146 likewise made reference to a nuncupative will
in this wise, to wit:
The will in question, as will be noted, is a nuncupative or open

will and seems to have been executed in accordance with the
provisions of articles 694, 695, and 699 of the Civil Code—that
146 Timbol v. Manalo, G.R. No. 2696, May 5, 1906
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is, in the presence of a notary public duly authorized by law
such as Adolfo Garcia Feijoo, who was then a notary public of
that province, and in the presence of three competent
witnesses, residents of the same place, who saw the testatrix,
witnessed the execution of the will, and understood everything
she said to the notary public in regard to her last will. The will
further contains the place, year, month, day, and hour of its
execution and it is recited therein that after being drawn up it
was read to the testatrix in the presence of the witnesses, by
one of whom it was interpreted to her; that one of the
witnesses signed for the testatrix because she was unable to
sign her name; that the will was executed at one time, without
interruption; that the notary was acquainted with the testatrix;
that she had legal capacity to execute the same, she being in
the full enjoyment of her mental faculties, and that all the other
solemnities required by law in the execution of wills were
complied with.
Other Supreme Court decisions illustrating that nuncupative wills were indeed
accepted in this jurisdiction are Araujo v. Celis147, Castro v. Martinez148 and Solla v.
Ascueta149, although in the last two cases, the issue is not so much about the validity
of nuncupative wills.
At this point, it would be safe to submit that in view of the foregoing, our
legislature should have felt the need to adopt a video-recorded will because at one
point in our history of legal system, courts have adopted nuncupative wills. Our
lawmakers should take advantage of the abundance of knowledge and new
147 Araujo v. Celis, G.R. No. 2308, August 3, 1910

148 Castro v. Martinez, G.R. No. 3880, March 9, 1908
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technology available at every man’s fingertips and use the same to introduce a new
form of will in this jurisdiction, with a view of allowing a testator greater freedom to
dispose of his estate, while preventing fraud and fabrication of the will.
1. Procedure for Recording the Testator’s Video-recorded Will
Lipat (2017) wrote an interesting analogy with regard to the competence of
video-recorded wills. Quoting hereunder, he said:
In basketball, people often argue as to who is the best player

who has ever played the game. In support of their argument,
they always show video clips of their favorite players to bolster
their argument that their bet is indeed the best. Hence, if
people wants to see how Wilt Chamberlain dominated in the
1960‘s or how Michael Jordan sinks shots one after the other
or how Kobe Bryant makes fadeaways and to provide proof of
Lebron James‘ uncalled travelling infractions and incessant
flopping, people go to YouTube to look for such clips.
It‘s rare that people question the authenticity of these videos or

claim that Magic Johnson‘s passes or Shaquille O‘Neal‘s dunks
are merely edited. Or if there is an important game and one
was not able to watch the same because of an important
commitment, he will just have to watch the replay of the said
game.
In the same vein, if courts want to determine if the testator

indeed is of legal age, or if there is preterition, the videotaped
will can undoubtedly be offered as evidence. In determining as
to whether or not the testator is of sound mind, the court should
still be guided by the principle enunciated in Art. 800 of the
Civil Code that every person is presumed to be of sound mind,
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in the absence of proof to the contrary. The burden is on the
oppositor to prove otherwise. Affirmati non neganti incumbit
probatio. Ei incumbit probatio qui dicit non qui. The videotaped
will can definitely help the court determine if the testator is of
sound mind, though, by itself is not sufficient to conclusively
prove sanity. It still has to make a rational determination as to
the sanity of the person appearing in the video.
Therefore, the Law on Wills and Succession can indeed accommodate the
advances of technology without sacrificing the goals that underlie the statute –
prevention of fraud.
With this in view, it is submitted that the following procedures may be
observed in recording a video-recorded will.
1). The video-recording must be done by the testator by using any of the
following devices:
1.1. iPhone or Smartphone (either using the front or rear camera,
whichever gives a clearer and sharper resolution of the video);
1.2. DSLR video camera;
1.3. Mirrorless video camera;
1.4. Point-and-shoot video camera;
1.5. Sports and action video camera;
1.6. Digital camcorders;
1.7. Built-in cameras in laptops or tablets; and
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1.8. Any device capable of capturing and recording audio and video
footage and which falls under the same classification with those of the
previously mentioned devices;
For all the items above, except 1.1 and 1.7, the video-recording device should
generate both a time and date generator. In the case of item 1.1 and 1.7, the details
of the video-recording provided by the mobile phone or the laptop’s default system,
which contains the date and time which the video taken, shall be sufficient.
2). The testator should divide the contents of the video-recorded will into three
parts:
2.1. Introduction. The testator, if not on the deathbed, neither at
the point of death, not terminally ill, and if able, shall state at the
beginning of the video his or her personal circumstances like date and
time of recording, full name, age, current residence, location at the
time of recording the video, and shall expressly state that the video-
recording is his last will; otherwise, it shall be sufficient that the testator
states only the date and time of recording, his full name, and declares
that the video-recording is his last will.
For example, Today is June 7, 2022, 8:00am, and I Juan dela Cruz,
40 years old, currently residing at Marawoy, Lipa City, Batangas, with
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present location at my house here in Marawoy, is making this video-
recording to serve as my last will; or
Today is June 7, 2022, 8:00am, and I, Juan dela Cruz, do make this
video-recording as my last will.
2.2. Body. The testator shall expressly declare and should recite
clearly the proper objects of his bounty and shall dispose of the same
in a manner that he or she wishes;
2.3. Conclusion. The testator shall expressly declare that he or she
executed the will freely, voluntarily, with full knowledge and without any
undue influence; and in the presence of at least two witnesses of legal
age and of sound discretion who attested the authenticity and due
execution of the video-recorded will;
Said statement, i.e. “I, Juan dela Cruz, executed this will freely and
without any undue influence” shall have the effect of as if physically
signing a written will.
In addition, the statement that “I made this video recording in the
presence of witnesses who affirmed to its truthfulness” shall function
as an attestation clause found in a written will.
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Note that the above sample statements are not to be imposed strictly and that
the same may be shortened, in order to give the testator greater convenience in
recording the will; provided that the context of the statement shall not in any way, be
changed nor be affected.
3) The entire video recording should be recorded clearly and sharply and
should entirely focus the testator, preferably capturing the upper half of the testator’s
body if possible, otherwise, a close up view of him shall be sufficient; the recording
should not pan in any other direction, apart from that of the testator. In the event that
the recording device, (for example, a DSLR video camera) is capable of capturing
the entire room or location of the testator, both the testator and the witnesses shall
appear in the video recording, the witnesses placing themselves at the back of the
testator;
4) The audio of the video-recording shall be sufficiently clear and intelligible
so as to be readily comprehended and so as to readily identify the testator and his or
her declarations;
5) The video-recorded will shall be saved in any digital storage device like
the default storage location of the iPhone or smartphone, SD/memory card, flash
drive, external hard drive, and any other digital storage devices belonging to the
same classification as those previously mentioned and a duplicate copy of the will,
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(the duplicate to be given to the witnesses and to be presented by the latter within
30 days from knowledge of the death of the testator) shall be saved in any of the
storage devices mentioned above;
6) Self-proving will. Within ten (10) days from the day the testator has
recorded and executed his will, the witnesses shall separately accomplish an
affidavit declaring that they are making a truthful statement with regard to the will will
recorded and executed by the testator himself in a state of mental capacity, and that
the same was done freely, voluntarily, and without any undue influence;
7) Safe-keeping of the video-recorded will; the option to have a
qualified custodian. The testator himself, during his lifetime, shall personally
keep and preserve the original copy of the video-recorded will in any place or
location that the testator deems safe or he may deposit it with the Clerk of Court of
the Regional Trial Court which has territorial jurisdiction over his residence the
original copy of his video-recorded will, depending upon his discretion; except in
cases where the will was executed at the point of death, or when the testator is
terminally ill, or on his deathbed, or in any other condition that will incapacitate him
to preserve the will, a qualified custodian may be appointed by the Court; provided
that said custodian meets the following criteria: i) a natural or juridical person; in the
case of a natural person, he or she must be at least 18 years old, of sound mind and
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discretion, is residing in the same locality where the testator currently resides (if still
living) or where the testator has died, must not be a minor, not a person of unsound
mind, not a felon, charged with any of the crimes involving moral turpitude (either a
detention prisoner or one charged with finality of conviction), must not be an heir, a
relative either by affinity or consanguinity of the testator, a beneficiary, a legatee or
devisee, and must not be any person who possesses an interest in the testator’s
estate; in the case of a juridical entity, it can be any bank, trust companies, any
corporation duly registered under the laws of the Philippines, any professional
service organizations like a law firm, or any other entity belonging to the same
classification as those previously mentioned; and ii) the qualified custodian, in the
case of a natural person, within thirty (30) days from the knowledge of death of the
testator must submit to the Court the said will and must simultaneously execute an
affidavit stating that he is in custody of the will and that the same was maintained at
all time and must affirm the fact that the will was not altered in any way; in case of a
juridical entity, a personnel authorized by the Board, shall executive the affidavit;
provided further that should the qualified custodian chooses to withdraw his or her
services, or has become incapacitated to serve as a qualified custodian, the Court
must designate a successor who possesses the same qualifications laid down above
and shall give custody of the video-recorded will along with an affidavit stating the
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transfer or chain of custody of the will (if multiple custodians have been involved);
provided furthermore that the will, the custody of which has not been maintained or
has not always been under the control of the qualified custodian, must be treated as
a lost or destroyed will, and any person who discovered the video-recorded will shall
execute an affidavit, and according to his best knowledge shall state a) when and
how the will was discovered by him; b) all persons who had access to the will (if
any); c) the method in which the video-recorded will was stored and preserved by
him and what safeguards were in place to prevent alterations to the will; d) whether
the will has been altered from the time of his discovery; and e) that the video-
recorded will in his custody is a true, correct, and complete tangible manifestation of
the will executed by the testator; provided finally, that the qualified custodian shall be
liable for damages in case of loss, destruction, alterations, or any other acts
belonging to the same classification; if proven to be negligent.
8) Witnesses requirement: Any natural person who is at least 18 years of
age, of sound mind and discretion, who is not a felon, charged with any of the crimes
involving moral turpitude (either a detention prisoner or one charged with finality of
conviction), must not be an heir, a relative either by affinity or consanguinity of the
testator, a beneficiary, a legatee or devisee, and must not be any person who
possesses an interest in the testator’s estate.
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2. Probate of the Video-recorded Will
In the United States, civil law commentators initially conceived of the role
video-records should play in the probate process during the early 1980s.
When a video-recorded will has been introduced in the probate process,
courts generally require some, but not all, of the following elements to be proven: a
voluntarily made video recording, proper functioning of the equipment, competency
of the equipment operator (if the will is recorded by a third person), accuracy of the
recording, proper preservation of the recording, absence of video-recording
alteration, and accurate identification of the participants of the execution of the will.
As to the purpose served by video-recorded wills and its admissibility, courts often
look to the video as evidence of "objective" factors, such as proper execution and
authenticity of the testament, as well as more "subjective" factors, including the
existence of testamentary capacity and the absence of undue influence. Regarding
the objective factors, a video-recorded will can document the presence of the
witnesses required for proper execution. The video can also serve as proof that the
testator signed the document himself in the presence of the witnesses' and can
insure against subsequent alterations of the document's contents by individually
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recording each stage of the execution. This forestalling of physical alteration also
exists in cases where the testator reads the entire will aloud.
The controversial nature of the admissibility of video-recorded wills arises with
respect to the subjective factors. Video-recorded wills have been touted for its ability
to reveal both the existence of testamentary capacity and the absence of undue
influence in will executions. Commentators argue that a video-recorded will
ceremony would allow the testator to appear "personally" before the court and state
his or her intentions directly.
Under our present Laws on Wills and Succession, there are only three
possible questions which can be determined by the probate court. These are the
following:
1) Question of Identity. Whether or not the instrument presented for probate
indeed the will of the decedent;
2) Question of Due Execution. Whether or not the will has been executed
according to the formalities prescribed by law; and
3) Question of Capacity. Whether or not, the testator possesses
testamentary capacity at the time of the execution of the will.
First, as to an inquiry by the Court of the identity of the instrument, whether
the same is indeed the last will and testament of the decedent can easily be
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answered by watching the entire video-recorded will. Not only can the identity of the
will be determined but also the identity of the testator himself. By watching the video-
recorded will, the testator is literally “a man speaking after his death” before the
courts. The procedure pertaining to the required statement to be made by the
testator at the beginning of the video, fortifies the claim that the video-recorded will
answers the first question of the probate court.
Second, the question of due execution may no longer even be a question as
there is no need to comply with the requirements under Art. 805 and Art. 809 of the
Civil Code, save for the witnesses requirement. Furthermore, the video-recorded
will, providing as it does mere guidelines and not really strict formalities, in the
recording and the execution of the will directly answers whether those guidelines
were indeed followed. For instance, by watching the video-recorded will, the Court
can easily gauge whether the audio is comprehensible, or whether the video itself is
clear and sharp. With regard to the witnesses requirement, in relation to their
attestation that the instrument was executed according to the formalities or
“guidelines,” the same is addressed through an affidavit to be executed by the
witnesses within ten (10) days from the day the testator recorded and executed his
will.
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Lastly, as to whether or not the testator has testamentary capacity when he
records his video-recorded will can easily be deduced by the manner the testator is
speaking. It can readily be seen if the testator knows the nature of the estate to be
disposed of, the proper objects of his bounty, and the character of the testamentary
act.
It also bears stressing that the witnesses present at the time of the execution
of the video-recorded wills should be first called by the Court during the hearing or
investigation on the authenticity of the will. If the will was executed at the point of
death, or when the testator is terminally ill, or on his deathbed, or in any other
condition that incapacitates the testator, both the qualified custodian and witnesses
shall be presented to court.
Based on the immediately preceding discussions, it may be gleaned that,
since video-records are simultaneous recordings of audio and visual events, a
probate court may draw heavily from certain laws governing the admissibility of
audio tape recordings, photographs, and motion pictures when formulating the
standards for the admissibility of video-recorded wills in probate proceedings, as far
as due execution and authenticity are concerned. Although these standards may not
enumerate a complete list, there are at least some basic considerations which the
researcher thinks as required for a video-recorded will to gain admission. These
130
guides may be helpful to the probate court in order to determine the due execution
and authenticity of a video-recorded will. These include, but not limited to the
following:
i). Device Capable of Taking Testimony
The first step to gain the admission of a video-recorded will is to show the
court that the video recorder was in proper working order at the time the recording
was made so that both audio and visual events were properly recorded. This may be
shown by testimony of the witnesses present at the recording.
ii). Authenticity and Correctness
The key element to the admission of a video-recorded will is to show that the
recording truly and correctly depicts the events and persons shown. The video
portion should be clearly in focus and the audio portion should be loud and clear
enough so that it is understandable and not misleading.
iii). No Changes, Additions, or Deletions
131
For the successful introduction of a video-recorded will for probate, it must be
shown to the court that no changes, additions, or deletions were made. Testimony of
those present during the recording may establish this element. If no such person is
available, expert testimony may be relied on to show that after physical inspection
and various sophisticated electronic tests that no evidence of alteration existed. The
use of a time-date generator (a device which continuously records both the time by
seconds and the date on the videorecord itself) will reduce or eliminate claims that
the video was spliced, erased, or otherwise altered.
iv). Manner of Preservation
It is advisable to keep at least an informal, however a detailed record of the
chain of custody of the video-recorded will. It would seem likely that a court will take
a favorable approach in such case since the burden of proof in civil actions is
considerably less than that in the criminal setting. Nonetheless, a good chain of
custody record would be advisable and would also help to show the previously
discussed element of lack of changes, additions, or deletions.
v). Positive Identification of the Testator
132
It will be quite easy to demonstrate this element to the probate court since
identification of the testator is made by the testator himself, deduced from both
visual and audio information.
vi). Statement Voluntarily Made
Probably the most significant consideration for a probate court to determine
the due execution and authenticity of a video-recorded will is the proof that the same
was voluntarily made by the testator, without any undue inducement. The fact that a
testator video-recorded himself, the execution of the subject will would imply a
voluntary act on his part. It must be shown to the court, through the witnesses’
testimony, the entire room or setting at the time of the execution of a will which
should dispel claims of involuntary statements.
In essence, in cases of probate of wills, the court primarily looks for the
authenticity and due execution of the will. The Court determines if such will was
executed voluntarily by the testator. A properly recorded video will will show that it
was executed voluntarily by the testator himself and that he was not forced to
perform such act, and ultimately, that there is no any vices of consent which would
invalidate the act.
133
3. Amendment of the Civil Code Provisions on Wills
To reiterate, the following provisions of the New Civil Code pertain specifically
with regard to the forms of wills allowed under Philippine jurisdiction, and the
solemnities and formalities surrounding its execution. To wit:
Art. 783. 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 this estate, to take effect after his death.
xxx
Article 804. Every will must be in writing and executed in a
language or dialect known to the testator.
Article 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the
testator's 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.
134
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
Article 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.(n)
xxx
xxx
xxx
Article 810. A person may execute a holographic will which

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.
(678, 688a)
Article 811. In the probate of a holographic will, it shall be

necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)
Article 812. In holographic wills, the dispositions of the testator

written below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a

holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
135
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Article 814. In case of any insertion, cancellation, erasure or

alteration in a holographic will, the testator must authenticate
the same by his full signature.
Based on the foregoing provisions, the researcher submits that first, Art. 804
be amended to include a video-recorded will since said Article limits the acceptable
forms of will to a written will. Consequently, if the same will not be amended, a
video-recorded will not find its place in our jurisdiction. Therefore, an amendment of
Art. 804 is in order to be able to recognize a video-recorded will as valid and legal in
the Philippines. The amendment shall state that an oral will may be executed.
Furthermore, the oral will shall refer specifically to a video-recorded will.
The researcher also submits that the Rules on Electronic Evidence finds
relevance in giving formal recognition to video-recorded wills as a nuncupative will in
Philippine jurisdiction.
Rules on Electronic Evidence
Audio, Photographic, Video and Ephemeral Evidence may now be admissible
in evidence provided the requisites under Sec. 1, Rule 11 is complied with, to wit:
Rule 11
136
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE
Section 1. Audio, video and similar evidence. – Audio,

photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the
recording or by some other person competent to testify on the
accuracy thereof.
Section 2. Ephemeral electronic communications. –

Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or has
personal knowledge thereof. In the absence or unavailability of
such witnesses, other competent evidence may be admitted. A
recording of the telephone conversation or ephemeral
electronic communication shall be covered by the immediately
preceding section.
The Rules on Electronic Evidence, applies only to civil actions, quasi-judicial
proceedings, and administrative proceedings according to the Supreme Court in the
case of Ang vs. Court of Appeals.150 Said the Court:
“Rustan claims that the obscene picture sent to Irish through a

text message constitutes an electronic document. Thus, it
should be authenticated by means of an electronic signature,
as provided under Section 1, Rule 5 of the Rules on Electronic
Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this
objection to the admissibility of the obscene picture, Exhibit A,
for the first time before this Court. The objection is too late
since he should have objected to the admission of the picture
on such ground at the time it was offered in evidence. He
should be deemed to have already waived such ground for
objection. Besides, the rules he cites do not apply to the
150 Ang v. Court of Appeals, G.R. No. 182835, April 20, 2010
137
present criminal action. The Rules on Electronic Evidence
applies only to civil actions, quasi-judicial proceedings, and
administrative proceedings.”
However, in the case of People vs. Enojas151, it is quite apparent that the Rule
on Electronic Evidence applies to criminal cases too. A relevant portion of the
Court‘s decision is hereby quoted as follows:
As to the admissibility of the text messages, the RTC admitted

them in conformity with the Court‘s earlier Resolution applying
the Rules on Electronic Evidence to criminal actions. Text
messages are to be proved by the testimony of a person who
was a party to the same or has personal knowledge of them.
Here, PO3 Cambi, posing as the accused Enojas, exchanged
text messages with the other accused in order to identify and
entrap them. As the recipient of those messages sent from and
to the mobile phone in his possession, PO3 Cambi had
personal knowledge of such messages and was competent to
testify on them.
In assessing the evidentiary weight of electronic evidence, certain factors may
be considered, like:
(a) The reliability of the manner or method in which it was generated, stored
or communicated, including but not limited to input and output procedures, controls,
tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
151 People v. Enojas, G.R. No. 204894, March 10, 2014
138
(c) The integrity of the information and communication system in which it is
recorded or stored, including but not limited to the hardware and computer programs
or software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry with the
communication and information system;
(e) The nature and quality of the information which went into the
communication and information system upon which the electronic data message or
electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message. 152
152 Willard Riano (2019) Evidence (The Bar Lecture Series) (Manila, Rex Bookstore Inc.) p.72
139
CHAPTER V
SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
This chapter presents the highlights of the findings, the conclusions made,
and the recommendations. Based on the foregoing data presented, the possibility of
videorecorded wills in the Philippines is not at all hard to conceive and admit as
there was indeed a point in time when in fact, nuncupative wills is accepted in this
jurisdiction coupled with the fact that technology is at the fingertips of every Filipinos.
A. Summary of Findings
Based on the gathered data, the following findings are obtained:
1. A video-recorded will remains to be a personal act – one dependent upon
the wishes of the testator whose choice extends as far as choosing such means to
execute his will, without undue influence, danger or threat of outside parties. It will
far more reveal the capacity of the testator at the time of making the will since it
captures every detail of the will execution and will show more truthfully the testator’s
intent in making the will, effective upon his death.
611
2. A video-recorded will accurately shows the testator’s behavior, emotions
accompanying dispositions upon death, the person’s expressions and reactions
which may prove extremely helpful in interpreting the will and ascertaining the intent
of the testator. A video-recorded will provides more safeguards for fraud, loss or
destruction. For instance, a video-recorded will may be encrypted, that is, the video
itself and the data contained therein may be masked. Protection deals with
protecting the file via passwords, codecs, container formats, and so on, so that
others don‘t have access to the data inside. Safeguard may also come in the form of
digital watermarking, i.e. act of hiding a message related to a digital signal (for
example: an image, song, video) within the signal itself. It is a concept closely
related to steganography, in that they both hide a message inside a digital signal.
However, what separates them is their goal. Watermarking tries to hide a message
related to the actual content of the digital signal, while in steganography the digital
signal has no relation to the message, and it is merely used as a cover to hide its
existence. Metadata for video is particularly helpful because video, unlike a
document, does not include keywords as text. It is the keywords that computers and
search engines use to search for content in videos.
141
3. At one point in time, oral or nuncupative wills are recognized in this
jurisdiction as evidenced by relevant Supreme Court Decisions.
4. Introducing a video-recorded will in this jurisdiction is in faithful keeping
with the intent of the Code Commission of the New Civil Code.
5. The Court should take advantage of the present technology which can
make viable a system designed for giving formal recognition of video-recorded wills.
of rules that can safeguard video-recorded wills
B. Conclusions
In light of all the foregoing, the researcher arrived at the following
conclusions:
1. A video-recorded will conforms to the essential elements and
characteristics of a valid will under the Philippine law on succession, allowing the
testator the freedom and liberality as to how such person will dispose of his
properties upon death.
2. A video-recorded will addresses the gaps and inefficiencies of traditional
wills and can help solve disputes regarding the formalities of wills.
142
3. A video-recorded will can close the door on fraud and substitution of wills.
4. A video-recorded will may guaranty the identity and due execution of the
will and the testamentary capacity of the testator; and consequently, may probated,
similar with traditional wills, as one being capable of admissibility and enforceability.
5. The availability of smartphones, and other portable or handheld video-
capturing devices makes it possible for testators to make their own wills privately.
C. Recommendations
With the foregoing discussions, the following are highly recommended, to wit:
1. The Civil Code Chapter on Wills and Succession be amended to recognize
the validity of video-recorded wills.
2. That a video-recorded will be seen as feasible to take the place of the
traditional wills by way of providing an alternative form of will to testators.
More specifically, it is recommended that:
3. A video-recorded may now be made using iPhone or martphone (either
using the front or rear camera, whichever gives a clearer and sharper resolution of
the video); DSLR video camera; mirrorless video camera; point-and-shoot video
camera; sports and action video camera; digital camcorders; built-in cameras in
laptops or tablets; or any device capable of capturing and recording audio and video
143
footage and which falls under the same classification with those of the previously
mentioned devices; provided that animus testandi is clearly manifest; provided
further that both the video and audio are clear; provided finally that two copies of the
same shall be saved in a flash drive, SD/memory card, external hard drive or any
other data saving devices. A video-recorded will further needs to be witnessed by at
least two witnesses, who are at least 18 years old and of sound mind and discretion,
and not a felon charged with any crimes involving moral turpitude, either a detention
prisoner or one charged with finality of conviction. Said witnesses shall execute an
affidavit attesting to the fact that the video-recorded will is the true and faithful will of
the testator
4. It is also recommended that in case the will was executed at a time when
the testator is terminally ill, on his deathbed, or in articulo mortis, that a qualified
custodian be appointed by the Court; otherwise, the testator himself, during his
lifetime, shall keep and preserve the original copy of the will or may deposit with the
Clerk of Court of the Regional Trial Court which has territorial jurisdiction over his
residence the original copy of his video-recorded will; depending upon his discretion.
5. The Rules on Electronic Evidence shall apply suppletorily in the
determination of the authenticity of the electronic will and to the Rules of Court on
probate.
144
6. That further studies be made regarding video-recorded wills, and other
oral or nuncupative wills, to keep up with the changes brought about by the digital
age and its impact on legal transactions, specifically with regard to wills and estate
planning.
7. That the Supreme Court shall provide for the guidelines as to how a video-
recorded will may be made and executed, for the guidance of the members of the
bench and the bar.
145
PROPOSED AMENDMENT
Republic of the Philippines
HOUSE OF RERESENTATIVES
Quezon City, Metro Manila
_______________ CONGRESS
_______________ Session
HOUSE BILL NO. ______
Introduced by _________________________
Be it enacted by the Senate and the House of Representatives of the
Philippines in Congress assembled:
146
Section 1. Article 804, Book III, Title IV, Chapter 2 of Republic Act No. 386,
as amended, otherwise known as the Civil Code of the Philippines is hereby
amended to read as follows:
Article 804. Every will, other than an oral will, must be in writing and
executed in a language or dialect known to the testator.
A will may be made orally. For purposes of this article, an oral will shall refer
specifically to a video-recorded will.
Section 2. Repealing Clause. All laws, presidential decrees, executive
orders, and their implementing rules, inconsistent with the provision of this act, are
hereby repealed, amended, or modified accordingly.
Section 3. Effectivity. This act shall take effect fifteen (15) days following its
complete publication in the Official Gazette or in at least two (2) newspaper of
general circulation.
Approved,
Speaker of the House President of the Senate
President of the Philippines
147
BIBLIOGRAPHY
Primary Sources
Domestic Laws
An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act
No. 386 (1950), New Civil Code of the Philippines as Amended
Article 428, Book Two Title II Chapter 1 Civil Code of the Philippines as amended
Article 777, Book Three Title IV Chapter 1 Civil Code of the Philippines as amended
Article 783, Book Three Title IV Chapter 2 Civil Code of the Philippines as amended
Article 784 Book Three Title IV Chapter 2 Civil Code of the Philippines as amended
611
Code of Muslim Personal Laws
Article 101 Code of Muslim Persona Laws
Article 102 Code of Muslim Personal Laws
Article 103 Code of Muslim Personal Laws
Revised Rules of Court
Section 1, Rule 73, Revised Rules of Court
149
Foreign Laws
French Civil Code
Article 791 French Civil Code
Indiana Code
Section 2(a), Chapter 5, Title 29, Indiana Code
Kansas Probate Code
Section 619, Article 6, Chapter 59, Kansas Probate Code
Louisiana Code
Section 1570, Louisiana Code
Mississippi Code
Section 1, Chapter 5, Title 91, Mississippi Code
Section 19, Chapter 5, Title 91, Mississippi Code
North Carolina Statute
Section 31-3.2, Article 1, North Carolina Statute
150
Ohio Revised Code
Section 60, Title XXI, Chapter 2017
Spanish Civil Code (El Codigo Civil de Espana)
Article 677, Civil Code of Spain
Article 701 Civil Code of Spain
Article 763 Civil Code of Spain
Secondary Sources
Philippine Jurisprudence
Abangan v. Abangan, G.R. No. L-13431, November 12, 1919
Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006
Ang v. Court of Appeals, G.R. No. 182835, April 20, 2010
Araujo v. Celis, G.R. No. 2308, August 3, 1910
Baluyot v.Panio, G.R. No. L-42088, May 7, 1976
Caneda v. Court of Appeals, G.R. No. 103554, May 28, 1993
Castro v. Martinez, G.R. No. 3880, March 9, 1908
Enriquez v. Abadia, G.R. No. L-7188, August 9, 1954
Guevara v. Guevara, G.R. No. L-7564, December 29, 1943
151
Hacbang v. Alo, G.R. No. 191031, October 5, 2015
Matias v. Alvarez, G.R. No. 4077, March 17, 1908
Natividad v. Gabino, G.R. No. 11386, March 31, 1917
People v. Enojas, G.R. No. 204894, March 10, 2014
Rabadilla v. Court of Appeals, G.R. No. 113725, June 29, 2000
Reyes v. Court of Appeals, G.R. No. 12099, October 30, 1997
Roberto v. Leonidas, G.R. No. L-55509, April 27, 1984
Roberts v. Leonidas, G.R. No. L-55509, April 27, 1984
Rodriguez v. CA, G.R. No. L-28734, March 28, 1969
Santos v. Manarang, G.R. No. L-8235, March 19, 1914
Seangio v. Reyes, G.R. Nos. 140371-72, November 27, 2006
Solla v. Ascueta, G.R. No. 24955, September 4, 1926
Suntay v. Suntay, G.R. No. 183053, June 16, 2010
Timbol v. Manalo, G.R. No. 2696, May 5, 1906
Villaflor v. Juico, G.R. No. L-15737, February 28, 1962
Foreign Jurisprudence
In Re: Bottger’s Estate, 14 Wn.2d 676, 129 P.2d 518, 1942
152
In Re: Estate of the Deceased Grant Patrick Carrigan, QSC 2018, September 6,
2018
In Re: Estate of the Deceased Karter Yu, Re:Yu [2013], November 6, 2013
Radford v. White, QSC [2018], December 17, 2018
Sayar Kumari v. State & Ors. TEST CAS No. 29 of 1985, October 9, 2009
Yazbek v. Yazbek, NSWSC [2012], June 1, 2012
Books
Jurado, D.P. (2019) Comments and Jurisprudence on Succession, 2019 edition,
Manila: Rex Book Store, p. 57
Mison, S.B. (2010), Wills and Succession Better Explained, Manila: Rex Book
Store, p. 1.
Page, et. Al. (1960), Page on the Law on Wills, Cincinnati: LexisNexis Matthew
Bender, p.4
Riano, W. (2016), Evidence (The Bar lectures Series), Manila: Rex Bookstore
Inc., p. 72.
153
Thesis and Study
Lipat, M. (2017), Dicat Testor Et Erit Lex: The Feasibility of Electronic Nuncupative
Wills (unpublished)
Thatcher, O. (1901), The Roman World, Volume III, The Library of Original Sources
(Milwaukee: University Research Extension Co.
Journals and Publications
Sneddon, K. (2014), Speaking for the Dead: Voice in Last Wills and Testaments, St.
John’s Law Review
Online Source
Digital Wills in India: Legal or Illegal, Dalmia, V. & Jain, Somya, January 3, 2020,
availableathttps://www.mondaq.com/india/willsintestacyestateplanning/87946/
digital-wills-in-india-legal-or-illegal, last accessed June 6, 2022
Do You Know the History of Last Will and Testament, Hicks P., June 14, 2012,
available at https://trustandwill.com/learn/history-of-last-will-and-testament,
last accessed September 27, 2021
Early Development, Rediscovery, and Colonization of the Philippines, available at

https://psa.gov.ph/sites/default/files/2011PYEarly20Development2C20Redisc-
overy20and20Colonization20of20the20Philippines0.pdf, last accessed May
27, 2022
FindLaw, Louisiana Wills Laws, available at http://statelaws.findlaw.com/louisiana-

law/louisiana-wills-laws.html, last accessed June 2, 2022
154
FindLaw, Massachusetts Wills Laws, available at FindLaw, Louisiana Wills Laws,
available at http://statelaws.findlaw.com/louisianalaw/louisianawillslaws.html,
last accessed June 2, 2022
FindLaw, New York Wills Laws, available at http://statelaws.findlaw.com/new-york-

law/new-york-wills-laws.html, last accessed June 2, 2022
History of Wills, Richard Boaden, March 22, 2016, available at

https://www.eqt.com.au//media/equitytrustees/files/legalprofession/sirninianeh
enlecturepapers/abriefhistoryofinheriatancethroughtheages.pdf, last accessed
May 22, 2022
Holographic Wills and Video Wills: Are they Legit?, Ferrante & Dill, LLC., available at
https://fdhlegal.com/holographicandvideowillsaretheylegit/, last accessed
June 5, 2022
Holper, Wilms, & Hanna, PLLC., History of Wills – Part 1: Ancient Wills, available at
https://hoplerwilms.com/blog/2016/04/24/history-of-wills-part-1-ancient-wills/,
September 27, 2021
How to Make an Online Will in Mississippi, Annie Mueller, June 7, 2021, available at
https://www.seniorsmatter.com/howtomakeanonlinewillinmississippi/2575330/
Kansas Inheritance Laws: What You Should Know, Fisher, Sarah, available at
https://smartasset.com/financialadvisor/kansasinheritancelaws, last accessed
June 6, 2022
Merriam Webster, (web version) An Encyclopedia Britannica Company, available at

https://www.merriamwebster.com, last accessed September 25, 2021
Mississippi Last Will and Testament, Kaminsky, Michelle, available at

https://www.legalzoom.com/articles/mississippilastwillandtestament, last
155
My Louisiana Succession Attorney, Louisiana Last Will and Testament, available at
http://www.mylouisianasuccession.com/louisiana/last-will-and-testament, last
Speeding You Through the New York State Probate Process, available at
https://www.seniorlaw.com/speeding-through-ny-state-probate-process/, last
The Proposal to Amend the Existing Law on Succession in the Philippines to Admit
Alternative Forms in Wills, Rubi, P. available at
https://ausltechlaw.wordpress.com/2012/09/27/rubipamelatheproposaltoamen
dtheexistinglawonsuccessioninthephilippinestoadmitalternativeformsinwills/,
UniversoJus.com, Definicion de Novisima Recopilacion, available at

http://universojus.com/definicion/novisima-recopilacion, last accessed June 7,
2022
Washington Oral Wills, HG.org Legal Resources, Legal articles by lawyers, available
at https://www.hg.org/article.asp?id+25603, last accessed June 2, 2022
What’s the Role of Technology in the Legal Sector?, Singh, P., May 27, 2022,
available at https://appinventiv.com/blog/technology-in-legal-sector/, last
When is a Will Valid?, Lancaster, Brad, (Lancaster Law Office), May 12, 2012
available at http://lancasterlawoffice.com/whenwillvalid, last accessed June 2,
2022
Why Do States Have Different Laws?, Rivera, J. June 26, 2018, available at
http://www.legalmatch.com/law-library/article/whydostateshavedifferentlaws,
last accessed, June 2, 2022
Wills and Inheritance Law in South Korea, Lee Yun Je, Angloinfo South Korea,
available at https://www.angloinfo.com/how-to/south-korea/money/wills-
inheritance, last accessed June 2, 2022
156
Witnessing Wills with Video Technology, Safewiil Blog, Lubofsky, A., available at
https://safewill.com/blog/posts/witnessing-wills-video-technology, last acce-
ssed May 17, 2022
157
Appendix
Republic of the Philippines

SUPREME COURT
Manila
A.M. No. 01-7-01-SC July 17, 2001
RULES ON ELECTRONIC EVIDENCE
Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the
Rules of Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules
on Electronic Evidence for this Court's consideration and approval, the Court Resolved to
APPROVED the same.
The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These
Rules shall take effect on the first day of August 2001 following their publication before the
20th of July in two newspapers of general circulation in the Philippines
17th July 2001.
RULES ON ELECTRONIC EVIDENCE
Rule 1
COVERAGE
Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an
electronic document or electronic data message, as defined in Rule 2 hereof, is offered or
used in evidence.
Section 2. Cases covered. – These Rules shall apply to all civil actions and proceedings, as
well as quasi-judicial and administrative cases.
Section 3. Application of other rules on evidence. – In all matters not specifically covered by
these Rules, the Rules of Court and pertinent provisions of statutes containing rules on
evidence shall apply.
611
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of these Rules, the following terms are
defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating a

secure key pair, consisting of a private key for creating a digital signature, and a
public key for verifying the digital signature.
(b) "Business records" include records of any business, institution, association,

profession, occupation, and calling of every kind, whether or not conducted for profit,
or for legitimate or illegitimate purposes.
(c) "Certificate" means an electronic document issued to support a digital signature

which purports to confirm the identity or other significant characteristics of the person
who holds a particular key pair.
(d) "Computer" refers to any single or interconnected device or apparatus, which, by

electronic, electro-mechanical or magnetic impulse, or by other means with the same
function, can receive, record, transmit, store, process, correlate, analyze, project,
retrieve and/or produce information, data, text, graphics, figures, voice, video,
symbols or other modes of expression or perform any one or more of these functions.
(e) "Digital signature" refers to an electronic signature consisting of a transformation

of an electronic document or an electronic data message using an asymmetric or
public cryptosystem such that a person having the initial untransformed electronic
document and the signer's public key can accurately determine:
i. whether the transformation was created using the private key that
corresponds to the signer's public key; and
ii. whether the initial electronic document had been altered after the
transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic data message

bearing a digital signature verified by the public key listed in a certificate.
(g) "Electronic data message" refers to information generated, sent, received or

stored by electronic, optical or similar means.
158
(h) "Electronic document" refers to information or the representation of information,
data, figures, symbols or other modes of written expression, described or however
represented, by which a right is established or an obligation extinguished, or by
which a fact may be proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally signed
documents and any print-out or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic document. For purposes of
these Rules, the term "electronic document" may be used interchangeably with
"electronic data message".
(i) "Electronic key" refers to a secret code which secures and defends sensitive
information that crosses over public channels into a form decipherable only with a
matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in
electronic form, representing the identity of a person and attached to or logically
associated with the electronic data message or electronic document or any
methodology or procedure employed or adopted by a person and executed or
adopted by such person with the intention of authenticating, signing or approving an
electronic data message or electronic document. For purposes of these Rules, an
electronic signature includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone conversations, text

messages, chatroom sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is not recorded or retained.
(l) "Information and communication system" refers to a system for generating,

sending, receiving, storing or otherwise processing electronic data messages or
electronic documents and includes the computer system or other similar devices by or
in which data are recorded or stored and any procedure related to the recording or
storage of electronic data messages or electronic documents.
(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its
mathematically related public key such that the latter can verify the digital signature
that the former creates.
(n) "Private key" refers to the key of a key pair used to create a digital signature.
(o) "Public key" refers to the key of a key pair used to verify a digital signature.
159
Section 2. Construction. – These Rules shall be liberally construed to assist the parties in
obtaining a just, expeditious, and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the international origin of
Republic Act No. 8792, otherwise known as the Electronic Commerce Act.
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional equivalent of paper-based documents. –

Whenever a rule of evidence refers to the term writing, document, record, instrument,
memorandum or any other form of writing, such term shall be deemed to include an
electronic document as defined in these Rules.
Section 2. Admissibility. – An electronic document is admissible in evidence if it complies

with the rules on admissibility prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.
Section 3. Privileged communication. – The confidential character of a privileged

communication is not lost solely on the ground that it is in the form of an electronic
document.
Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document. – An electronic document shall be regarded

as the equivalent of an original document under the Best Evidence Rule if it is a printout or
output readable by sight or other means, shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is in two or more

copies executed at or about the same time with identical contents, or is a counterpart
produced by the same impression as the original, or from the same matrix, or by mechanical
or electronic re-recording, or by chemical reproduction, or by other equivalent techniques
which accurately reproduces the original, such copies or duplicates shall be regarded as the
equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same
extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
160
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of
the original.
Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS
Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic

document in any legal proceeding has the burden of proving its authenticity in the manner
provided in this Rule.
Section 2. Manner of authentication. – Before any private electronic document offered as

authentic is received in evidence, its authenticity must be proved by any of the following
means:
(a) by evidence that it had been digitally signed by the person purported to have
signed the same;
(b) by evidence that other appropriate security procedures or devices as may be

authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the
judge.
Section 3. Proof of electronically notarized document. – A document electronically notarized

in accordance with the rules promulgated by the Supreme Court shall be considered as a
public document and proved as a notarial document under the Rules of Court.
Rule 6
ELECTRONIC SIGNATURES
Section 1. Electronic signature. – An electronic signature or a digital signature authenticated

in the manner prescribed hereunder is admissible in evidence as the functional equivalent of
the signature of a person on a written document.
Section 2. Authentication of electronic signatures. – An electronic signature may be

authenticated in any of the following manner:
161
(a) By evidence that a method or process was utilized to establish a digital signature
and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the genuineness of
the electronic signature.
Section 3. Disputable presumptions relating to electronic signatures. – Upon the

authentication of an electronic signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it correlates;
(b) The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or to
indicate such person's consent to the transaction embodied therein; and
(c) The methods or processes utilized to affix or verify the electronic signature
operated without error or fault.
Section 4. Disputable presumptions relating to digital signatures. – Upon the authentication

of a digital signature, it shall be presumed, in addition to those mentioned in the immediately
preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not been altered from the
time it was signed; and,
(e) A certificate had been issued by the certification authority indicated therein.
Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Section 1. Factors for assessing evidentiary weight. – In assessing the evidentiary weight of
an electronic document, the following factors may be considered:
162
(a) The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls,
tests and checks for accuracy and reliability of the electronic data message or document,
in the light of all the circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which it is recorded
or stored, including but not limited to the hardware and computer programs or
software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry with the
communication and information system;
(e) The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document
was based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity of
the electronic document or electronic data message.
Section 2. Integrity of an information and communication system. – In any dispute involving

the integrity of the information and communication system in which an electronic document
or electronic data message is recorded or stored, the court may consider, among others, the
following factors:
(a) Whether the information and communication system or other similar device was
operated in a manner that did not affect the integrity of the electronic document, and
there are no other reasonable grounds to doubt the integrity of the information and
communication system;
(b) Whether the electronic document was recorded or stored by a party to the
proceedings with interest adverse to that of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and
ordinary course of business by a person who is not a party to the proceedings and
who did not act under the control of the party using it.
Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
163
Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data
compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical
or other similar means at or near the time of or from transmission or supply of information by
a person with knowledge thereof, and kept in the regular course or conduct of a business
activity, and such was the regular practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of which are shown by the testimony
of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence.
Section 2. Overcoming the presumption. – The presumption provided for in Section 1 of this
Rule may be overcome by evidence of the untrustworthiness of the source of information or
the method or circumstances of the preparation, transmission or storage thereof.
Rule 9
METHOD OF PROOF
Section 1. Affidavit evidence. – All matters relating to the admissibility and evidentiary
weight of an electronic document may be established by an affidavit stating facts of direct
personal knowledge of the affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify on the matters contained therein.
Section 2. Cross-examination of deponent. – The affiant shall be made to affirm the

contents of the affidavit in open court and may be cross-examined as a matter of right by the
adverse party.
Rule 10
EXAMINATION OF WITNESSES
Section 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of
these Rules, the court may authorize the presentation of testimonial evidence by electronic
means. Before so authorizing, the court shall determine the necessity for such presentation
and prescribe terms and conditions as may be necessary under the circumstances,
including the protection of the rights of the parties and witnesses concerned.
Section 2. Transcript of electronic testimony. – When examination of a witness is done

electronically, the entire proceedings, including the questions and answers, shall be
transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who
shall certify as correct the transcript done by him. The transcript should reflect the fact that
the proceedings, either in whole or in part, had been electronically recorded.
164
Section 3. Storage of electronic evidence. – The electronic evidence and recording thereof
as well as the stenographic notes shall form part of the record of the case. Such transcript
and recording shall be deemed prima facie evidence of such proceedings.
Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE
Section 1. Audio, video and similar evidence. – Audio, photographic and video evidence of
events, acts or transactions shall be admissible provided it shall be shown, presented or
displayed to the court and shall be identified, explained or authenticated by the person who
made the recording or by some other person competent to testify on the accuracy thereof.
Section 2. Ephemeral electronic communications. – Ephemeral electronic communications

shall be proven by the testimony of a person who was a party to the same or has personal
knowledge thereof. In the absence or unavailability of such witnesses, other competent
evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be

covered by the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then

the provisions of Rule 5 shall apply.
Rule 12
EFFECTIVITY
Section 1. Applicability to pending cases. – These Rules shall apply to cases pending after
their effectivity.
Section 2. Effectivity. – These Rules shall take effect on the first day of August 2001
following their publication before the 20th of July 2001 in two newspapers of general
circulation in the Philippines.
(Sgd.) HILARIO G. DAVIDE JR. Chief Justice

(Sgd.) JOSUE N. BELLOSILLO (Sgd.) REYNATO S. PUNO Associate
Associate Justice Justice
(Sgd.) SANTIAGO M. KAPUNAN (Sgd.) ARTEMIO V. PANGANIBAN
Associate Justice Associate Justice
(Sgd.) BERNARDO P. PARDO (Sgd.) MINERVA P. GONZAGA-
Associate Justice REYES Associate Justice
(Sgd.) SABINO R. DE LEON, JR. (Sgd.) JOSE C. VITUG Associate
165
Associate Justice Justice
(Sgd.) VICENTE V. MENDOZA (out of town on official business)
Associate Justice (Sgd.) LEONARDO A QUISUMBING
Associate Justice
(Sgd.) ARTURO B. BUENA (Sgd.) CONSUELO YNARES-
Associate Justice SANTIAGO Associate Justice
(on leave) (Sgd.) ANGELINA SANDOVAL GUTIERREZ Associate Justice
166
CURRICULUM VITAE
Name of Researcher: Ellen L. Gonzalvo
Personal Details:
Address: Blk. 23, Lot 22, Transville Homes, Banay-Banay, Lipa

City, Batangas
Phone: +63 949 607 1958
Email: gonzalvoellen@gmail.com
Education:
Post Graduate: Doctor of Jurisprudence

University of Batangas Lipa Campus
2018 – present
Tertiary: B.S. Business Administration major in Marketing

Management
Lyceum of the Philippines University – Batangas
2010 – 2015
Secondary: Alitagtag National High School
Elementary: Alitagtag Central Elementary School
Work Experience:
Secretary University of Batangas Lipa Campus
611
Office for Publications, Research, Linkages & Liaison
2019 – present
Research and A.C. Ong Consulting Inc.

Business 2017 - 2018
Development
Officer
Event Executive Juan Carlo the Caterer, Inc.

Supervising 2015 - 2016
Officer
168

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THE PRACTICABILITY OF ADOPTING A VIDEO-RECORDED WILL IN THE

PHILIPPINE LEGAL SYSTEM

A Thesis Presented to University of Batangas

In Partial Fulfillment of the Requirements for the

Degree of Juris Doctor

This thesis entitled “THE PRACTICABILITY OF ADOPTING A VIDEO-

_Atty. Edna Del Rosario__ _Atty. Maria Concepcion H. Beloso_

Approved by the Committee on Oral Examination with a grade of _______

__Atty. Hernando S. Perez Jr. __

_Atty. Minerva R. Dimaano_ Atty. Sonny Jose M. Ricablanca_

Accepted and approved in partial fulfillment of the requirements of the degree

Atty. Hernando S. Perez Jr.

Title : THE PRACTICABILITY OF ADOPTING A VIDEO-RECORDED

WILL IN THE PHILIPPINE LEGAL SYSTEM

Author : Ellen Gonzalvo

Degree : Juris Doctor

Adviser : Atty. Maria Concepcion H. Beloso

behind, outstanding obligations, and rights still to be exercised in as much as the

person is permitted, with the formalities prescribed by law, to control to a certain

by the creation of that instrument, permitted them to do so.

of the said will.

testator versus complying with the strict formalities.

Hence, the goal of this research is to propose an alternative form of will,

rigid formalities of a notarial or holographic will. The researcher recognizes the

The following questions will be addressed for scrutiny by this research:

1. How are wills treated in the Philippines under the following?

a. New Civil Code

State of Indiana, USA, and other select foreign jurisdictions?

3. How can video-recorded wills be adopted in the Philippines?

a. How does a testator video record his last will?

c. How should the provisions of the New Civil Code be amended so

Philippine legal system?

1. A video-recorded will remains to be a personal act – one dependent upon

intent in making the will, effective upon his death.

2. A video-recorded will accurately shows the testator’s behavior, emotions

accompanying dispositions upon death, the person’s expressions and reactions

existence. Metadata for video is particularly helpful because video, unlike a

search engines use to search for content in videos.

3. At one point in time, oral or nuncupative wills are recognized in this

jurisdiction as evidenced by relevant Supreme Court Decisions.

4. Introducing a video-recorded will in this jurisdiction is in faithful keeping

of rules that can safeguard video-recorded wills.

In light of all the foregoing, the researcher arrived at the following

1. A video-recorded will conforms to the essential elements and

properties upon death.

2. A video-recorded will addresses the gaps and inefficiencies of traditional

5. The availability of smartphones, and other portable or handheld video-

the validity of video-recorded wills.

2. That a video-recorded will be seen as feasible to take the place of the

traditional wills by way of providing an alternative form of will to testators.

More specifically, it is recommended that:

3. A video-recorded may now be made using iPhone or Smartphone (either

mentioned devices; provided that animus testandi is clearly manifest; provided

other data saving devices. A video-recorded will further needs to be witnessed by at

5. The Rules on Electronic Evidence shall apply suppletorily in the

6. That further studies be made regarding video-recorded wills, and other

bench and the bar.

accomplishing this study:

Atty. Hernando S. Perez Jr.