Effect of E-Commerce on the Formality of Wills

By Atty. Jason R. Barlis

I. Formality of Wills
The Civil Code provides for certain formalities for wills, the most basic of which are found in the following provisions:

“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. (n)”

“Art. 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)”

“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. (678, 688a)”

Quite notably, all wills, whether notarial or holographic, must be written and signed. However, the terms “written” and “signed” have acquired expanded meanings mainly by reason of the enactment of the E-Commerce Act (ECA), Republic Act No. 8792. The basic poser therefore is: Is it possible to comply with the formalities of wills as found in the Civil Code, albeit electronically? This is the focus of this paper.

II. Basic Principles under the E-Commerce Act
The ECA has changed the concept of documents and signatures from their traditional form into things which are electronic.

To better appreciate the issue at hand, let us take some basic principles under the ECA which would be of help in our analysis.

Sections 6 and 12 of the ECA provides for the non-discrimination rule, which simply states that there should be no disparity of treatment between electronic documents and paper documents. By itself, the ECA does not make an electronic document legally effective, valid and enforceable. It does not provide a rule on automatic admissibility; i.e., just because a document is in electronic form will not make it automatically admissible. What the ECA seeks to attain is the EQUALITY OF TREATMENT between paper-based documents and electronic documents.

The law provides:

“Sec. 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.”

“SEC. 12. Admissibility and Evidential Weight of Electronic Data Message and Electronic Documents. - In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence -

a. On the sole ground that it is in electronic form; or

b. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or 7 hereof shall be the best evidence of the agreement and transaction contained therein.”

Together with the above-cited non-discrimination rule is the functional equivalent rule which states that an electronic document is the functional equivalent of a paper-based document, and an electronic signature is the functional equivalent of a traditional signature. Thus, if the law requires a document to be in writing, the same would be complied with if the document was written electronically. The provisions of law read:

“Sec. 7. Legal Recognition of Electronic Documents. Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and -

(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference x x x

For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.”

“Sec. 8. Legal Recognition of Electronic Signatures. - An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if that signature is proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed xxx”

Considering all these, would it be legally possible to have a will electronically written? Or should wills remain in the traditional written form?

To properly address these questions, let us take in detail the elements of the forms of wills.

III. Elements of Notarial Wills
Under Article 805 of the Civil Code, the following are the requirements for validity of the form of wills:

(a) In writing;

(b) Subscription at the end by the testator himself or by the testator's name written by some other person in his presence, and by his express direction (usually done by affixing a signature);

(c) Attestation by three or more credible witnesses in the presence of the testator and of one another, containing the essential elements of an attestation as provided by law (again manifested by the signatures of the attesting witnesses);

(d) Marginal signing by the testator and the instrumental witnesses;

(e) Paging; and

(f) Acknowledgment before a notary public by the testator and the witnesses.

By reason of the non-discrimination and functional equivalent rules discussed above, it is without doubt that requirements (a) and (e) above may be complied with electronically.

With respect to requirements (b), (c) and (d), the only problem that is evident is: How may the requirement of affixing a signature be complied with?

The law provides the answer: use DIGITAL SIGNATURES!

IV. The Concept of Digital Signatures
What is a digital signature? Section 1 (e), Rule 2 of the Rules on Electronic Evidence provides:

"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.”

Before we continue further, let us take a look at the following terms as defined under the Rules on Electronic Evidence:

"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.

"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.

"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.

"Private key" refers to the key of a key pair used to create a digital signature.

"Public key" refers to the key of a key pair used to verify a digital signature.

A little discussion of these terms would be of help.

Asymmetric or Public Cryptosystem and the Concept of Keys
At the outset, it must be made clear that this paper does not aim to discuss the whole gamut of public-key cryptography. Thus, the discussions will be limited to the basic things which are needed in the appreciation of the issue at hand.

Cryptography is the science of using mathematics to encrypt and decrypt data. It could also be defined as any system of writing in secret characters, or the art and process of writing in cipher.

A data or message which is written and which can be read and understood in its original form (without need of any process or conversion) is known as “plaintext.” If the plaintext is converted into something which appears to be “garbled” in order to hide its true meaning, the “garbled” data or message is known as “cipher text” or plainly, “encrypted text.” The process of converting the data from its understandable appearance to something which is non-understandable is “encryption”; while the process of converting the data from its non-understandable form back to the original message is known as “decryption”.

To encrypt a plaintext, there are different types of cryptography that may be done, and the strength of such cryptography is determined by the complication of the process applied. For instance, the top-secret message that one would send is “HELLO” and the sender wants this extremely sensitive message to be encrypted. The sender could do it in such a way by advancing the letters in the word “HELLO” by three (3) characters in the alphabet, and so the message that he would write would be “KHOOR.”

Once the recipient receives the message “KHOOR,” he would be able to decrypt the message by just reversing the process. So he would just go back by 3 characters to decipher the real message “HELLO.” In this very simple encryption process, the “key” that the sender used to encrypt, which is the same “key” that the recipient used to decrypt, is the key of “3”. This process is known as “symmetric cryptosystem” — symmetric because the “key” that was used in encrypting the message is also the same “key” that was used in decrypting the message. The decryption is done by simply reversing the process of encryption. For obvious reasons, this is a weak form of encryption.

In an asymmetric or public cryptosystem, the process used to decrypt a data/message is not the exact reverse of the process used to encrypt a data/message. In other words, the “key” used to encrypt the message is not the same “key” used to decrypt the message. To do this, a pair of keys is used—a “public key” and a “private key.” The “public key” is used to encrypt data; while the private key is used to decrypt data. As the name suggests, the “public key” may be, and in fact it should be, shared to others. The public key may be published to the whole world so that others who might want to send encrypted messages to a person would use that person’s public key. On the other hand, and as it name implies, a “private key” should really be kept very private because only the holder of the corresponding private key may decrypt the message locked or encrypted by the public key.

The public and private keys are mathematically related, although presently, there is still no man who is known to be capable of deducing a private key from public key. Thus, even if a person shares his public key to everyone, he does not fear that his private key would be known simply by manipulating the public key.

At this point, the questions that would enter our minds would probably be: How are such key pairs (public and private keys) generated? And how may the public make use of the asymmetric or public cryptosystem?

Considering the present state of technology, there are commercially available computer programs (software) which afford the use of an asymmetric or public cryptosystem. Using those software, data may be encrypted and decrypted no longer by symmetric means, but by a public cryptosystem. Those software can create pairs of public and private keys.

For instance, if the message “HELLO” would be encrypted using a software applying an asymmetric cryptosystem, the encrypted message “HELLO” using the writer’s public key would not have any meaning if it were to be read as such. Thus, there is a need to decrypt the same. To decrypt such message, the holder of the corresponding private key (of the public key used to encrypt such message) is the only one who would be able to read the original message “HELLO.” Again, the software will be used for this process. It will ensure that the message would be secured because as said earlier, the holder of the private key must keep such key very private.

With this basic knowledge of public cryptosystem, let us now focus on digital signatures.

It must be noted that just like a traditional signature, the function of a digital signature is also to ensure that the document to which such digital signature is placed was really made by the person to whom such digital signature belongs. Thus, under Section 9 of the ECA, it is provided that:

“Sec. 9. Presumption Relating to Electronic Signatures. - In any proceedings involving an electronic signature, it shall be presumed that -

(a) The electronic signature is the signature of the person to whom it correlates; and

(b) The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically signed electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances.”

Under the Rules on Electronic Evidence, a digital signature is created using the signer’s private key and can be verified using that signer’s public key. The private key, which is supposed to be known only to its holder, is used for signing because just like a traditional signature, only the person who uses such traditional signature should be able to affix the same. On the other hand, the public key of a person, which is published or known by the whole world, is used to verify whose digital signature was used in a document. This would be similar to the function of a traditional signature because any person who is familiar with the traditional signature of a person would be able to verify that the document was indeed signed by the person who affixed the same.

For illustration, “Hello. This is my message.” may be digitally signed using the writer’s private key.

A digital signature is NOT a scanned signature of a person. Neither is it in any way similar in appearance to a traditional signature. Instead, a digital signature is merely a combination of alphanumeric characters and symbols generated by the computer itself.

Considering that a digital signature is merely a combination of alphanumeric characters and symbols, how would we know the person who placed the digital signature?

The software itself provides the process to verify who the signer of the message is. Using the public key of a person, the computer will be able to verify who was the signer of the message. The computer will show the details of such verification. Significantly, the computer will show who is the signer of the message is and whether the signature is good or bad.

On the other hand, let us assume that the original message “Hello. This is my message.” in the electronic document was changed to “Hello. This is not my message.” What would happen to the document?

The computer will inform the viewer that the signature of the signer is a BAD SIGNATURE. Further, it will warn him to be alert because the “signature did not verify” and the “message has been altered.”

V. The Effects of these Discussions on the Formalities of Wills
Let us now relate the foregoing discussion with the formalities of wills under the Civil Code.

To illustrate these concepts, let’s assume that a testator electronically writes a will by typing his will using his word processor. In the presence of three attesting witnesses and a notary public, the testator (using his “private key”) affixed his digital signature on the said will. The attesting witnesses, in turn, affixed their respective digital signatures in the presence of the testator and of one another, including the notary public (also using their respective “private keys”). Let’s assume further that the Supreme Court has already promulgated the rules on notarization of electronic documents. Would there be compliance with the requirements of Article 805 of the Civil Code?

Admittedly, the question is tough to answer. There could be varying opinions which could all be equally weighty. Personally, the writer submits that there is compliance with the requirements of the Civil Code concerning formalities of notarial wills. Applying the non-discrimination and functional equivalent rules, the writer submits that the electronic will, together with the digital signatures affixed thereon, complied with the requirements of the law for the validity of a will.

The requirements of subscription and attestation are clearly complied with although the will is in electronic form. While the digital signatures may not have been marginally made, there is still substantial compliance with the requirements of law requiring that the signatures of the testator and his attesting witnesses be placed on each page of the will. (Abangan v. Abangan, 41 Phil 476)

The only remaining problem, therefore, is the requirement of acknowledgment by the notary public. Admittedly, at present, there is still no rule promulgated by the Supreme Court anent electronic notarization of documents. Although under Section 3 of Rule 5 of the Rules on Electronic Evidence, it states that --

“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.”

still, at present, there is no such rule promulgated by the Supreme Court. This therefore poses a serious question as to whether or not the formality of wills could be digitally complied with at present. Thus, in our earlier discussion, we worked on the assumption that the Supreme Court has already promulgated the rules on notarization of electronic documents for such electronic will to be valid.

One problem that may arise would be how to ensure that the testator and the attesting witnesses really affixed their digital signatures in the presence of one another, considering that with the present technology, the affixing of the digital signatures on one document may be done even if the parties are in different places.

However, it is submitted that this problem is not really unique for electronically written wills. Even if the will were paper-based, there will still be the tendency that the paper-based notarial will will be brought to different places and be physically signed in those places. The law therefore relies on the faith of the notary public notarizing the document to ensure that the same was signed in the presence of one another. Further, during the probate proceedings, questions relating to compliance with the requirements of Article 805 of the Civil Code should be propounded to determine whether the testator and the attesting witnesses really signed in the presence of one another. It is submitted that the same principles would apply in cases of electronically written wills.

VI. What about Holographic Wills?
Is it legally possible for a holographic will to be electronically written? For instance, if a testator electronically writes a will, wherein he placed the date and his digital signature, would that be considered as compliance with the requirements of Article 810 of the Civil Code?

Unlike notarial wills, holographic wills are required to be entirely written, dated and signed by the hand of the testator. Although personally the writer submits that the authenticity of the will may still be determined although it is electronic in nature, it would appear that holographic wills may not be electronically made, largely by reason of Article 810 of the Civil Code requiring that the will be entirely written, dated and signed by the hand of the testator.

A word-processed document is definitely not written by the hand of the testator. A digitally signed document is also definitely not signed by the hand of the testator. Consequently, there is no way by which a person could digitally comply with the requirements of a holographic will.

An interesting question might be raised: If the testator used writing tablets and special pens which, by the use of computer programs, could read and print the handwriting of the testator, would there be compliance with the requirements of law concerning holographic wills? Stated differently, may the will be now considered as entirely written, dated and signed by the hand of the testator?

Again, the question is not so easy to resolve. But personally, the writer submits that while “holographic will” may be electronically stored, there would still be a problem with respect to the validity of the signature appearing therein. Under the ECA and its implementing rules, including the Rules on Electronic Evidence, the only recognized form of electronic signature are digital signatures. Since the signature in the “holographic will” is one which does not conform with the ECA, it is submitted that there will be no compliance with the formalities of law as regards holographic wills.

Lastly, if the testator used writing tablets and special pens to electronically write a will, and then affixed his digital signature to conform with the ECA, would there be compliance with the requirements of a valid holographic will? It is submitted that there would be no compliance, since the digital signature was not written by the hand of the testator.

VII. Conclusion
With the enactment of the ECA, and if the Supreme Court would promulgate the rules on electronic notarization of documents, there is a possibility that an electronic notarial will would be considered as valid. On the other hand, because of the requirement that holographic wills should be entirely written, dated and signed by the hand of the testator, there is still a very serious doubt as to whether an electronic holographic will may be considered as valid.