Types of Wills
Ordinary Wills When distinguishing between types of wills, we categorize them into ordinary and special forms. The first group includes: Holographic Will: This type is entirely handwritten, dated, and signed by the testator, resembling a private document. It can be kept by the testator or entrusted to a highly trusted individual. A holographic will is void if it lacks the handwritten nature or the signature of the testator. It is only voidable in the absence of other formal elements. Public Will: This will is drawn up by a notary who, in the presence of two witnesses, records the testator’s declarations. The notary faithfully transcribes the content, reads it aloud in the presence of the witnesses, and notes the place, date, and time of signing. The testator, witnesses, and notary all sign the document. As a public document, it serves as full proof of its content unless contested for falsity. It is null if it lacks the required written and notarized form, or if the signatures of the notary or the testator are missing. Minor formal defects render it voidable within five years from the date of publication. Secret Will: This is drafted by the testator or a third party, potentially using mechanical means, and signed only by the testator. It is delivered to a notary in the presence of witnesses following specific formalities. The testator hands over the sealed will, which contains their final wishes. The notary then attaches a receipt, which includes the date and signatures of the testator, witnesses, and notary. The notary also drafts and provides the testator with a return certificate, allowing the testator to retrieve the will at any time. A secret will is null if it lacks the written form of the receipt or the signatures of the notary and the testator. Other formal defects make it voidable, with a five-year limit to challenge the execution of its provisions. All these forms and types of wills hold equal validity, as no specific type is inherently superior. The key aspect is the expression of the testator's intent, with the latest will always taking precedence over earlier ones, regardless of form. What is the Purpose of Publishing a Will? It’s essential to distinguish between the different types of wills, as publishing a will is not a requirement for its validity or effectiveness but serves to inform the beneficiaries of its contents. A public will, being a public document, is immediately enforceable. In contrast, a holographic or secret will must be published to be executed. For instance, a secret will can be published by the notary immediately upon the testator's death. A holographic will, however, must be presented to a notary by the person entrusted by the testator to safeguard it. If the will was kept by the testator and its existence was never disclosed to family or friends, it may never come to light. Technically, the notary publishes the will by drafting a public deed in the presence of two witnesses. This document describes the state of the will, reproduces its content, and notes its opening and any seals. The deed is signed by the person presenting the will, the witnesses, and the notary. It is then sent to the court in the jurisdiction where the succession is opened, and the heirs are notified of the will’s existence. A holographic will may still be executed without formal publication if the heirs voluntarily act on its terms, but in case of disputes, court action cannot be taken without proper publication. Special Wills In addition to the ordinary wills mentioned above, there are special wills used under extraordinary circumstances, where drafting an ordinary will is not feasible. These simplified formalities apply in exceptional situations such as contagious diseases, natural disasters, accidents, sea voyages, air travel, or in military service. Special wills become ineffective three months after the exceptional circumstances end, as outlined in the Civil Code. When is a Will Invalid? To summarize, a will (or specific provisions within it) may be invalid in the following cases: Nullity of the Entire Document: This occurs due to a lack of legally required forms, joint or mutual wills (drafted by multiple testators for the benefit of others), physical coercion, inability of the notary or guardian to receive the will, or the presence of certain elements (e.g., an unlawful motive or condition) that exclusively influenced the testator. Nullity may also arise from an indeterminate beneficiary. Voidability of the Entire Document: This applies in cases of errors in disposing of assets, coercion or fraud, minor formal defects not amounting to nullity, or the testator's incapacity to make a will.