The Rule on ‘Formalities of Wills’ executed Abroad

The Concept of ‘Capacity to Contract’ for Foreigners

March 24, 2026

The Concept of ‘International Comity’ and Mutual Recognition

March 24, 2026

I. Introduction

This memorandum exhaustively examines the Philippine rules governing the formal validity of wills executed by Filipino citizens or aliens outside the Philippines. The central legal issue is determining what law applies to the formalities—the external, ritual acts such as the number of witnesses, notarization, and the testator’s signature—of a will executed abroad. The analysis is anchored on the principle of lex loci celebrationis (the law of the place of celebration) as codified in the Civil Code of the Philippines, but subject to critical exceptions and conditions for wills to be effective within the Philippines. This memo will dissect the applicable statutory provisions, doctrinal interpretations, and procedural requirements for the probate of such wills.

II. Statement of Applicable Law

The primary law is the Civil Code of the Philippines, specifically:

Article 815: “The formalities established by the preceding articles for the execution of wills in the Philippines must be observed even by citizens of the Philippines in foreign countries, subject to the following exceptions: (1) If the foreign country has its own laws governing the form of wills, the will may be executed in accordance with such laws; (2) If the will is executed in a foreign country which is a signatory to the Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (Hague Convention, 1961), the will may be considered valid as to form if it complies with the provisions of said Convention; and (3) If the will is holographic, it may be valid as to form if it complies with the provisions of Article 810.”

Article 17, Paragraph 1 & 3: “Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed.”

Article 816: “The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.”

Article 819: “Wills, prohibited by the preceding articles, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.”

The Rules of Court, particularly the rules on settlement of estate of deceased persons (Rule 73 to 90), govern the probate proceedings where the will’s formal validity is ultimately adjudicated.

III. The General Rule: Lex Loci Celebrationis

Article 17(3) establishes the general conflict-of-laws rule: the formalities of a will are governed by the law of the place where it is executed (lex loci celebrationis). This means a will executed in, for example, Japan, is formally valid if it complies with Japanese law on will formalities, regardless of the testator’s nationality. This rule promotes international comity and practical certainty.

IV. Specific Rules for Filipino Citizens Executing Wills Abroad (Article 815)

Article 815 creates a special, more permissive regime for Filipino citizens. While it reminds them that the formalities under Articles 804-814 (for ordinary attested and holographic wills) are always an option, it provides three alternative paths to formal validity:

Compliance with Local Foreign Law: The will may be executed in accordance with the formalities prescribed by the law of the foreign country where it is executed.

Compliance with the 1961 Hague Convention: If the foreign country is a contracting state to the Hague Convention of October 5, 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, the will is formally valid if it complies with any of the connecting factors listed in Article 1 of the Convention (e.g., the law of the testator’s nationality, domicile, habitual residence, or the lex loci actus).

Holographic Wills under Article 810: A holographic will executed abroad by a Filipino is valid as to form if it is entirely written, dated, and signed by the testator’s own hand, per Article 810. No foreign law needs to be consulted for its formal validity.

V. Rules for Aliens Executing Wills Abroad (Article 816)

For aliens (non-citizens) executing wills outside the Philippines, Article 816 provides an even more flexible rule. Their wills are formally valid for Philippine purposes if executed in accordance with any one of the following laws:

The law of the place where the alien resides;

The law of the alien’s own country (national law); or

The formalities prescribed by the Philippine Civil Code.

This favor testamenti (favoring the validity of the will) approach aims to give maximum effect to the testator’s last wishes.

VI. The Prohibitive Rule: Exception for Filipinos (Article 819)

Article 819 is a critical limitation. It states that wills “prohibited by the preceding articles” executed by Filipinos abroad are invalid in the Philippines, even if valid under foreign law. “Prohibited” refers to wills that do not qualify under any of the alternative paths in Article 815. For instance, if a Filipino in Country X (a non-Hague state) executes a will that fails under both Philippine formalities and Country X’s formalities, it is “prohibited” and invalid in the Philippines, despite being potentially valid in Country X. This reinforces the principle that for Filipinos, the options are exhaustive.

VII. Comparative Summary: Formalities for Wills Executed Abroad

The following table summarizes the applicable rules based on the testator’s status and location of execution.

Testator’s Status & Will Type	Primary Governing Law(s) for Formalities	Key Statutory Basis	Probate Consideration in the Philippines
Filipino Citizen (in a foreign country)	1. Philippine formalities (Arts. 804-809, 810); OR 2. Formal law of the foreign place of execution; OR 3. Hague Convention rules (if applicable).	Article 815	Will must be probated in Philippine courts. It must be shown to comply with at least one of the three alternatives under Art. 815.
Alien/Non-Citizen (in a foreign country)	1. Law of place of execution; OR 2. Law of alien’s domicile/residence; OR 3. National law of the alien; OR 4. Philippine formalities.	Article 816	If the alien has property in the Philippines, the will may be probated there. Proponent must show compliance with any one of the listed laws.
Any Person (before Philippine Diplomatic/Consular Official abroad)	Philippine formalities exclusively.	Article 17(3), last sentence	Treated as if executed in the Philippines. The diplomatic or consular officer acts as a notary public/public official under Philippine law.
Holographic Will by a Filipino (in a foreign country)	Philippine formalities for holographic wills (Article 810) exclusively. Compliance with foreign law is not required for validity.	Article 815(3)	Must be proven to be entirely handwritten, dated, and signed by the testator. The allowance of such a will still requires probate.

VIII. Procedural Requirements: Probate in the Philippines

Regardless of the law governing its formalities, a will executed abroad must undergo probate proceedings in the proper Philippine Regional Trial Court (as a testate proceeding) to have legal effect over properties in the Philippines. The proponent bears the burden of proving:

The death of the testator;

The jurisdiction of the court;

The due execution and formal validity of the will in accordance with the applicable law as shown above;

That the will is the last will and testament of the deceased.

The will itself and a authenticated copy of the foreign law governing its formalities (if relied upon) must be submitted as evidence. Under the Rules of Court, a copy of a foreign law may be evidenced by an official publication or a duly attested copy. The court will not take judicial notice of foreign law; it must be pleaded and proved as a fact.

IX. Doctrinal Interpretations and Jurisprudence

The Supreme Court has consistently upheld the favor testamenti principle. In Gibbs v. Government of the Philippine Islands (1918), the Court applied the law of the place of execution (Illinois, USA) to validate a will. In Perez v. Perez (1972), the Court emphasized that for Filipinos abroad, the formalities are alternative, not cumulative. The will need only comply with one system. The Court in Bellis v. Bellis (1967) reinforced that formalities are governed by lex loci celebrationis, while the intrinsic validity (e.g., capacity, legitimes) is governed by the national law of the decedent. The prohibitive nature of Article 819 was strictly applied in In re: Will of Riosa, invalidating a will that did not meet Philippine or local foreign formalities.

X. Conclusion

The Philippine rule on formalities of wills executed abroad is layered and designed to uphold testamentary intent while respecting international legal diversity. For Filipino citizens, Article 815 provides clear, alternative paths to formal validity, but Article 819 sets a firm outer boundary. For aliens, Article 816 offers the widest possible latitude. The overarching principle of lex loci celebrationis in Article 17 is thus modulated by specific provisions that account for nationality and policy. Ultimately, any will, regardless of where executed or by whom, must be authenticated through a Philippine probate proceeding where its compliance with the correct governing law on formalities will be judicially determined. Practitioners must carefully ascertain the testator’s citizenship, the place of execution, and the relevant foreign law to ensure the will’s formal validity for purposes of Philippine succession.

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