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Gerard M.


It can be concluded that electronic wills such as written electronic wills still
cannot be recognized or incorporated in our laws as valid in its own right. This
can be seen by the fact that the safeguards needed to secure the authenticity of
the will are still insufficient. The characteristics of the hand written will not only
as to being tamper proof but also as to its durability and accessibility after several
years of its writing is still much better than what the technology can offer when it
comes to the electronically written will. This conclusion, however, does not mean
that an electronically written will cannot be recognized a valid in its own right in
the future. There is still the probability that this can be incorporated into our laws
on succession when technological advancements can meet the requirements of
the law as to proof of its authenticity, durability and accessibility.
A videotaped will, on the other hand, can be recommended to be
incorporated as an amendment to the law on succession. This can be taken in a
form that is considered as valid in its own right or as an equivalent to a
nuncupative will or one declared orally by the testator, in his last illness, and in
contemplation of death before a sufficient number of witness.

Since the

technology nowadays can identify through the assistance of experts the

authenticity of a videotaped will, the act proving its genuineness in the probate
can be effectively made.

Gerard M. Castillo

placed to preserve its integrity. The probate of an electronic will should therefore
require a process of authentication similar to that of a written will.8
Instead of utilizing a notary public and attesting witnesses, the integrity of
an electronic will is proposed to be ensured by requiring the testimony of a
disinterested person in the field of audio and video technology.9 A videotape
evidence must be authenticated (or verified), a requirement that can be satisfied
by testimony from a foundational witness sufficient to support a finding that the
matter in question is what its proponent claims.10
A videotaped will is said to be more advantageous since it has the ability
to capture the demeanor and real facial expression of the testator. This could
indicate whether or not the testator, while making his will, is of sound mind. A
videotaped will can also serve a better purpose when a testator who is in the
point of death expresses his last wishes with respect to disposition of his estate
through video recording, an act which he cannot do by means of a written will
under such circumstances.
Lastly, it is submitted that this is far more reliable than the plain
handwriting of the testator in a holographic will.11

Sanchez, Notes on Business Education, 2006, vol. 9, issue no. 2, p. 3

Sanchez, Notes on Business Education, supra

Gerard M. Castillo

this electronic signature alone does not guarranty the will as tamper proof. There
must be additional legislation prescribing a level of new formalities or conditions
precedent to recognition that would be much more burdensome than the present
formalities surrounding the making of paper wills.6 Furthermore, technological
changes is fast-paced resulting to technological obsolescence. There is still no
assurance that an electronic document made by the testator several years before
he dies will still be readable at the time of his death.
A videotaped will, on the other hand, is one wherein testamentary
provisions are being read or spoken by the testator while being filmed or
This type of will can show that the testator could think and express an
orderly desire as to the disposition of the property. All of these are seen to be
executed without undue influence, coercion or duress.

A carefully prepared

videotaped will that records the entire will execution procedure, visually and
audibly, may prove indispensable should the will be contested.7
A video-taped will may be readily acceptable as a supplement to a
holographic or notarial will for probate purposes. Nonetheless, it is submitted
that the electronic will maybe taken one step further as a valid will on its own or
in conjunction with a noncupative or oral will provided sufficient safeguards are



Gerard M. Castillo

The Concept and Issues of Electronic Will

An electronic will can be definded as a will that is created, recorded,
transmitted or stored in digital form or in any other intangible form by electronic,
magnetic or optical means.3
A written electronic will is a one that exists solely in electronic form in an
electronic record. Examples include but are not limited to documents stored in
the hard drive of a computer, online file storage, or in any other electronic device.
With respect to this kind of electronic will, a very important question which
needs to be addressed is the proof of its authenticity. Its integrity needs to be

A documents integrity is ensured if it is possible to verify that no

alteration has ever occurred to the information in the document.4 There is a need
for an effective unique electronic signature which would serve as an electronic
proof of the documents authenticity.
The issue which arises from this is the process of authentication wherein it
must be proven that the testator adopted the electronic record as a will and that
the electronic record was not altered after adoption.5
Is there an available technology wherein it can assure as to the
genuineness of the will? Although, there are now what we call electronic or
digital signatures which a testator can use as his signature in an electronic will,

Alberta Law Reform Institute, The Creation of Wills, 2009, p. 43

Alberta Law Reform Institute, supra

Gerard M. Castillo

and exchanges and storage of information through the utilization of electronic,

optical and similar medium, mode instrumentality and technology to recognize
the authenticity and reliability of electronic data messages or electronic
documents related to such activities and to promote the universal use of
electronic transactions in the government and by the general public.1
The Securities and Exchange Commision also responded to meet the
demands of the corporate world through the issuance of SEC Memorandum
Circular No. 15, series of 2001 which embodies the guidelines for the conduct of
teleconferencing and videoconferencing of Board of Directors, providing for
safeguards to ensure the integrity of the meeting, the proper recording of the
minutes thereof and the safekeeping of the electronic recording mechanism as
part of the records of the corporation.2
The Supreme Court also responded by issuing A.M. No. 01-7-01-SC or
the Rules in Electronic Evidence.
These show that even our laws need to cope with the innovations brought
about by the technological developments.


Section 3, Republic Act No. 8792

Villanueva, Philippine Corporate Law, 2008 ed., p. 365

Gerard M. Castillo

our legal system had responded to the challenges that these developments
After a period of more than half of a century and a period of radical
change in terms of the techological advancements, is there a need for the Civil
Code to align with these developments? Are amendments to the Civil Codes
provisions on the formalities of a will needed? Is there a need to incorporate the
idea of electronic wills to the law on succession?

The ICT Age and the Legal Systems Response

In the advent of the 21st century, different technological innovations were
developed and introduced. A wide range of electronic gadgets and applications
became accessible not only to the business world but also to the ordinary
person. Transactions are now being made with the use of innovative technology.
From an ordinary buy and sell transaction through the more complex banking
system, communications and even automated elections, technology played a
vital role. In all of these, the Philippine legal system responded through the
enactment of laws as well as rules and regulations to complement such laws.
The legislature enacted Republic Act No. 8792 or what is commonly
known as the Electronic Commerce Act of 2000 in response to the demands of
the advancements in electronic commerce. This act aims to facilitate domestic
and international dealings, transactions, arrangements agreements, contracts

Gerard M. Castillo

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. Article 783, New Civil Code of the Philippines.
The New Civil Code provisions regarding the law on succession serve as
the governing law on matters pertaining to a persons testamentary act. It is this
law which prescribes the manner on how a person can dispose his estate after
his death. It allows a person to make a testamentary act in either of the two
modes namely, the notarial will and the holographic will.
It is also this Code which precribes the strict formalities which should
govern the making of a will.

Aside from the requirements of testamentary

capacity and intent, the law requires that every will must be in writing and
executed in a language or dialect known to the testator. It further prescribes the
need for at least three attesting witnesses for a notarial will and the need for a
holographic will to be entirely hand-witten, dated and signed by the testator.
It has been six decades since the New Civil Code was enacted and since
then no amendment to its provisions regarding the formalities of a will has been
made. From that period more technological breakthroughs happened. The way
of life at the time of the enactment of the Code had extensively changed to what
it is nowadays. In this Information and Communications Technology (ICT) age,