Probating a Holographic Will Written on an iPad

July 24, 2012

Submitted to: Atty. Sebastian

By: Rafael Lorenzo G. Conejos

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Tablet of Contents:

I. Introduction -----------------------------------------------------------------------------------------------------------------3

II. Background of the Study

A. Law Favors Testacy --------------------------------------------------------------------------------------------4

B. Holographic Wills -----------------------------------------------------------------------------------------------5

C. E-Commerce Act -------------------------------------------------------------------------------------------------6

III. Statement of the Problem ----------------------------------------------------------------------------------------------8

IV. Legal Arguments

A. iPad retains distinguishing marks and other characteristics ----------------------------------------8

B. Law does not require expert witness ---------------------------------------------------------------------20

C. Handwriting can be determined through a photostatic or Xerox copy --------------------------21

D. Liberal Construction of the E-commerce Act ------------------------------------------------------------21

E. Electronic Wills promote Testacy ---------------------------------------------------------------------------22

V. Conclusion--------------------------------------------------------------------------------------------------------------------24

VI. Sample Holographic Will A----------------------------------------------------------------------------------------------26

VII. Sample Holographic Will B----------------------------------------------------------------------------------------------27

VIII. Bibliography ---------------------------------------------------------------------------------------------------------------28

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I. Introduction:

An electronic holographic will written on an Apple iPad with the aid of a stylus and executed without any witnesses can be probated because it complies with the formal requirements specified in the civil code and the rules on electronic evidence. This paper takes into consideration that the recent commercial success of tablet computers and their touch screen interactive surface will create a novel legal issue should a testator choose to make use of such in order to constitute his last will and testament. The main issue at hand is whether or not the spoken of present technology can depict the handwriting of a testator with such accuracy that it would “…close the door on bad faith and fraud… and to guarantee [it’s] truth and authenticity.”1

This paper harmonizes the doctrine found in Gan vs. Yap through five legal arguments based on the rules on evidence, the E-Commerce Act and Rules on Electronic Evidence, the formal requirements of the Civil Code on holographic wills, and methods used by handwriting experts.

Paper and pen are the predominant tools of the writer of a holographic will. They are so because that is what has been customary, what has been available, and most importantly, what has been legally permissible. Today, paper, even in schools is being replaced by tablet computers. 2 Computers, of any kind, can store vast amounts of data, which can be stored either on a hard drive or online. And yet “if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will.” 3 A handwritten will on an iPad could easily be stored online or offline or even distributed to others across the globe and then later printed and presented to court. It would in fact be to the testator’s better interest to make such a will so as to further guarantee its preservation. Should the law punish the modern testator by disallowing his last will and testament simply because he chose to make use of the very technology that we are dependent on for our practical needs today?

1 (Lee vs. Tambago 544 Scra 393)2 (Business Insider, 2012)3 (Rodelas v AranzA 119 scra 16)

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II. Background of the Study:

A. Law Favors Testacy:

It is a fundamental rule of succession that “the probate of the will is mandatory and therefore, takes precedence over intestate proceedings.” Such being the case, should there have been an already instituted intestate proceeding, and a will is found, the law provides that “the probate of the will is mandatory.”4 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 cases.”5

The law even goes so far as to punish the custodian or executor of the will if he is negligent in his duty in not presenting the will within 20 days.6 The duty is based on the fact that “public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by Will may be rendered nugatory.”7

The purpose behind this doctrine is that intestate proceedings are simply “the presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote charitable and humanitarian activities…”(Italics mine)8 No presumption is necessary if an actual will which clearly determines the testator’s wishes exists and such is admitted to probate.

Courts, if necessary, will use the doctrine of substantial compliance when they find that a notarial will, although not complete with the formal requirements of the law, nevertheless should be probated because it has complied with most of the requirements and effectively “…closes the door on bad faith and fraud…”(Italics mine)9

4 (Vitug v. Court of Appeals 183 Scra 755)5 (Roberts v. Leonidas, 129 SCRA 33)6 (Sec 4-5., Rule 75; Rules of Court)7 (Ralla v. Judge Untalan 172 SCRA 858)8 (Balane, 2006)9 (Lee vs. Tambago 544 Scra 393)

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B. Holographic Wills

1. Probating a Holographic Will

When a holographic will is submitted to probate the law requires that (1) it is entirely written, dated, and signed by the hand of the testator;10 (2) that a copy of the will is available;11 (3) at least one witness who knows the handwriting and signature of the testator explicitly declares that the will and the signature are in the handwriting of the testator;12 (4) that if the will is contested, at least three of such witnesses shall be required.13

It is important to note that the law does not qualify that the witnesses to be presented must be experts in determining handwriting nor does it qualify that the will must be written with a pen on paper. The only qualifications that the witnesses must have are that they are able to identify the handwriting of the testator on the surface of something used by him to create the will. The court however may call upon expert testimony should they deem it necessary “…in the absence of any competent witness referred to…”14 The methods of authentication which handwriting experts or forensic document examiners use are based on those accepted by Philippine Jurisprudence and renowned specialists Roy Huber and A.M. Headrick.

2. Advantages and Disadvantages of a Holographic Will

Some of the advantages of the will are that: “…It is simple and easy to make…, it guaranties the absolutely secrecy of the testamentary dispositions because it can be made without anyone else knowing it.”15 And some of the disadvantages are that: “it can be easily falsified by expert forgers, because no witness or public official intervenes in its execution [and] for the same reason, it can be easily concealed.”16

C. E- Commerce Act and Rules on Electronic Evidence

10 (Article 810; Civil Code of the Philippines)11 (Rodelas v AranzA 119 scra 16)12 (Article 811; Civil Code of the Philippines)13 (Article 811; Civil Code of the Philippines)14 (Article 811; Civil Code of the Philippines)15 (Tolentino, 1992)16 (Tolentino, 1992)

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1. Purpose

The Act “…is intended to give electronic documents the same legal effect as paper documents.”17 It does not impose an obligation on others to transact by using only electronic documents but simply provides that parties may choose to transact with either paper documents or electronic documents without the fear of it being held inadmissible in court or one having more weight than the other. Nevertheless, it is worthy to note that “the liberal construction of the rules is mandated by the fact that the Rules are new and technical in nature…It is therefore essential that the Rules should not be strictly construed as to unnecessarily exclude evidence. Doubts should be resolved in favor of admissibility.”(italics mine)18

This concept is broken down into three fundamental rules.

2. Fundamental Rules:

a. Non Discrimination Rule

It is provided in the Act that “Information shall not be denied validity or enforceability solely on the ground that it is in the form of electronic data message…”19 Thus “…there should be no disparity of treatment between data messages and paper documents as evidence.”20 A document created on an iPad thus cannot be held to be inadmissible simply because it is electronic in form.

b. Functional Equivalent Rule

An electronic document is the functional equivalent of paper-based documents, while an electronic signature is the functional equivalent of a traditional signature.”21 Or in other words, a written document and an electronic document are placed on equal standing with one another. That being said, electronic documents become as admissible as those covered under the best evidence rule.

c. Not an Automatic Admissibility Rule

Although the intent of the legislature is to create a means for the law to adapt to modern day technology, it does not however grant that every electronic document is immediately admissible simply because they are what they are. To be admissible in evidence, “…the electronic document must still meet the requirements for admissibility prescribed by the Rules on Evidence. For this reason, the Electronic Commerce Act states [in Section 12] that ‘nothing in the application of the Rules on evidence shall deny the admissibility of an… electronic document,’ instead of stating that an electronic…document shall be admissible in evidence.”22

3. Authenticating Electronic Documents

17 (Amador, 2010)18 (Amador, 2010)19 (Section 6; E-Commerce Act )20 (Amador, 2010)21 (Amador, 2010)22 (Amador, 2010)

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It is quite clear from the last rule that the existence of an electronic document does not excuse a party from complying with the present procedure of evidence when it comes to authentication. Section 16 of the Act provides that “…the person seeking to introduce an electronic document or electronic data message in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that…[it] is what the person claims to be.”23 Section two provides the manner of authentication.

SEC. 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.(italics mine)24

Amador cites a number of hypothetical examples but admits that absent a ruling by the Supreme Court to clarify the rules, it is more than acceptable to have an affidavit presented in order to prove the admissibility of the electronic document or signature. The law provides that “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…”25 The affiant may nevertheless be cross-examined by the other party.26 The emphasis made in paragraph c of section 2 of this law is in keeping with Amador’s view that “in case other technologies are subsequently developed, the Rules are broad enough to accommodate their authentication.

III. Statement of the Problem

23 (Amador, 2010)24 (Section 2, Rule 5; Rules on Electronic Evidence)25 (Section 1, Rule 9; Rules on Electronic Evidence)26 (Section 2, Rule 9; Rules on Electronic Evidence)

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Can the handwriting on a purported Holographic Will, written on an iPad with a stylus, be recognized by ordinary witnesses to lead them to conclude that it was indeed written by the hand of the testator? And if so, can the same will pass the tests of forensic documentary examiners, should the court deem it necessary to call upon them?

IV. Legal Arguments

A. iPad retains Distinguishing Marks and other characteristics:

When a holographic will is found on an iPad, the primary concern of the probate court is to determine if the testator dated, signed, and wrote the entirety of the will by hand. This can be proven by (1) witnesses who are accustomed to the hand writing of the testator and can readily identify it on the holographic will; and (2) a handwriting expert who systematically identifies particular characteristics of the hand writing found on the holographic will and attempts to correlate it to the handwriting of the testator through the use of samples of comparison.

This study will show that the handwriting made on an iPad is capable of leaving distinguishing marks which would enable a handwriting expert to determine if it was the handwriting of the testator or not. Two print outs of two holographic wills, written by two different persons, on an iPad have attached at the end of this study for examination.

Expert Witness Not Required:

Although regular witnesses who are more than accustomed to the writing of the testator may identify his hand writing based on their own personal knowledge of it, it is nevertheless probable that an expert witness may be called to testify before the court. It must be noted however that “the value of the opinion of [a] handwriting expert depends not upon his mere statement that the writing or signature is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between the genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer.”(italics mine)27

Again, although “…the opinion of handwriting experts are not necessarily binding upon the courts, [it is nevertheless] the experts function being to place before the court data upon which the court can form its own opinion.”(italics mine)28 It can thus be gleamed from jurisprudence that the authenticity of the handwriting is determined primarily by the judge, and that the objective of the handwriting expert is to specifically present to the court his findings with respect to master patterns, 29 distinguishing marks or any other characteristic which would shed light on the author of the handwritten piece.

Handwriting Identification in general:

27 (People vs. Domasian 219 SCRA 245)28 (1021)29 (Silverio vs. Castro 19 SCRA 520)

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There are two accepted principles of handwriting identification: (1) habituation; and (2) individuality or heterogeneity of writing. The former recognizes that “writing habits are neither instinctive nor hereditary but are complex processes that are developed gradually…[in other words] it is a neuromuscular behavior that develops as an acquired perceptual-motor skill…Thus in handwriting comparisons, letters, combination of letters, words, or phrases must be considered according to the degree to which they constitute a collective habit.”30 The latter recognizes that “handwriting identification is predicated on the belief that the handwriting is unique to the individual, and every document examiner must subscribe to this.”31 Regardless, the real question for handwriting examiners “is whether or not, in writing discrimination, the judgment of the examiner and his instrumentation is capable of such precision as to make the necessary distinction.”32

Silverio cites Harrison, expounding that the rule on handwriting identification “is simple—whatever feature two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation.”33 Meaning, just because the sample being used as comparison does not carry the same feature, does not immediately mean that it is not the same writer. Rather, “…it is not the form alone nor anyone feature but rather a combination of all the qualities that identify.”34 The “qualities” refer to elements of writing which an expert witness may study in order to determine the authorship of a document.

21 Proposed Universal Elements of Writing:

30 (Headrick, 1999)31 (Headrick, 1999)32 (Headrick, 1999)33 (Silverio vs. Castro 19 SCRA 520)34 (People vs. Domasian 219 SCRA 245)

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Huber and Headrick, citing a number of authors, including Harrison35 (who has been cited in a number of Philippine cases), propose that there are 21 elements of writing, and that there is a “…more or less universal agreement that these, and perhaps only these, are the elements of writing that would be involved.”(Italics Mine)36 The framework of this section of the paper does not aim to show that the writings in the samples belong to any individual person but involve in showing that most of the 21 elements of writing are discernible from the spoken of electronic document. Thus if they can be discerned, then an expert will have the clues to constitute a reasonable conclusion as to the author of the will. The outline of the elements is indicated below.

A. Elements of Style1. Arrangement2. Class of Allograph3. Connections4. Designs of Allographs and their Construction5. Dimensions6. Slant or Slope7. Spacings

B. Elements of Execution8. Abbreviations9. Alignment10. Commencements and Terminations 11. Diacritics and Punctuation — presence, style, and location.12. Embellishments13. Legibility or Writing Quality14. Line Continuity15. Line Quality16. Pen Control *17. Writing Movement

C. Attributes of All Writing Habits18. Consistency or Natural Variation19. Persistency

D. Combinations of Writing Habits20. Lateral Expansion21. Word Proportions

A holographic will written using an iPad gives the writer (1) the ability to use a stylus as though it were a pen; (2) the ability to write words in any size or shape or character he wishes; (3) the ability to make as much space as he or she wishes in between words and (4) all other basic characteristics of writing that one may utilize if he or she is writing on paper.

Conclusion: Only 1/21 cannot be determined

35 (Silverio vs. Castro 19 SCRA 529)36 (Headrick, 1999)

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Handwriting made on an iPad, with a stylus, substantially complies with the rules on handwriting identification. Among all 21 universal elements, only one element cannot be discerned through such holographic will: the 16th element or Pen Control. This concerns the management of the writing instrument by the hand in generating a writing line. It takes into consideration three things: (1) The pen or stylus position or the orientation of the writing instrument relative to the sheet or screen; (2) the pen or stylus hold or the grasp of the writing instrument by the hand; and (3) the point load.37

The point load is the more interesting among the three. It takes into consideration (a) pen pressure; and (b) shading. Shading is “the product of pen pressure that is manifest in the widening or narrowing of the stroke… [it also includes the creation and variations of indentations].38 In simpler terms, shading is the manifestation, indentations are an important type of that manifestation, and pen pressure is the cause of the manifestation.

This cannot be determined through the use of the iPad because it cannot distinguish between too much pressure or too little pressure. The ability to write on the iPad is based on a programmed minimum amount of exerted pressure on the part of the writer. Once the writer exerts that minimum amount, the iPad no longer distinguishes.

What are Discernible:

The remaining 20 elements are listed below and have been defined and further clarified with an example, when necessary. The test used to determine discernibility is if one is able to visually see the manifestation of each element on a print out of the subject holographic will or seen on the actual screen of the iPad. Definitions and explanations have been summarized for practical purposes. All illustrations below are samples made with the iPad through a stylus. Two electronic holographic wills, based on the will in Codoy,39 written by two different persons, has been attached at the end of this study for examination.

1. Arrangement

This is defined as “a group of habits that are influenced by the writer’s artistic ability, sense of proportion, and the instruction received. It may be evident in the placement and balance of text, the dimensions and uniformity of all four margins, the parallelism of lines, and the location of signatures, relative to margins, ruling and constraints, the depth of indentions…”40

If a person writing on paper starts at looking at a blank paper, it is also the same that the person writing on a tablet with a stylus also begins by looking at a blank screen. It is up to the respective writer to fill in the screen to his habitual style. The amount of freedom to write anywhere on the screen, as though one were writing anywhere in paper indicates that this element is discernible.

2. Class of Allograph

37 (Headrick, 1999)38 (Headrick, 1999)39 Codoy vs. Calugay 312 Scra 33340 (Headrick, 1999)

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There are 4 classes of allograph; (1) cursive writing; (2) script writing; (3) handlettering; and (4) composites of cursive writing and handlettering. The tablet computer does not restrict a person from using only script writing or cursive writing or any of the other two thus this element is discernible. However it must be noted that this “…may be indicative of [only] the nationality or the writer’s country of learning…[and useless for more precise identification.]41 Nevertheless, “they must not, however, be totally disregarded.42”

3. Connections

This is defined as the “union of two or more letters.” This is a style indicative to cursive writing. Osborn says that the degree of curvature and the slant of connecting strokes is one of the most significant variations in handwriting. Most are at an agreement that connecting strokes are valuable in the identification process.43

The connections in the letters of a word are clearly discernible as seen by illustration A below.

Illustration A

4. Designs of Allographs and their Construction

This includes factors related to the graphic forms of the particular letters of writing. These generally pertain to the:

a. correspondence to foreign/domestic or particular writing systemsb. number, nature, position, sequence, and direction of strokes in allograph (letter)constructionc. use of two or more designs for the same allographd. capitalization — divergences from standard practicese. allograph (letter) combinations — wherein one allograph’s design influences the

41 (Headrick, 1999)42 (Headrick, 1999)43 (Headrick, 1999)

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structure or shape of its neighbor44

In simple terms, this recognizes the fact that a letter may be written numerous ways depending on the preference of the writer for a particular occasion or on the writer’s habit. Such as the letter ‘t’ in cursive which sometimes carries a loop and another time is simply a straight line without a loop. This is discernible.

In Silverio, the court took into consideration “…that the small letter “g” is structurally different, in the loop, which difference is maintained throughout…”45

The samples below show two different ways of writing a ‘t’ in script.

Illustration B

Illustration C

5. Dimensions

These include such terms as proportions, relative heights, size, relative seizes, and ratios. It is recognized that “many writers develop their own practices, some of which are quite distinctive and unique.”46

Proportion, in its simplest definition, means the relationship of small letters to tall letters. Relative heights means that some letters tend to be oversized for unknown reasons. Absolute size means an “approximation of the average heights of the linear letters of writing…” Thus experts take into consideration the change in height between one letter to another.47

In illustration D, a red line is placed on top of the first ‘e.’ It can be seen here that, as compared to the letters ‘h,’ ‘r,’ and the last ‘e,’ the first ‘e’ is the highest among them.

44 (Headrick, 1999)45 (Silverio vs. Castro 19 SCRA 520)46 (Headrick, 1999)47 (Headrick, 1999)

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Illustration D

6. Slants or Slope

A slope is the angle or inclination of the axes of letters relative to the perpendicular to the baseline of the writing. This definition allows for the fact that some writings have ascending or descending baselines that can have an effect upon the slopes of letters. It can be readily understood, then, that as writing slopes lean further to the right or to the left, the angle increases andso the slope increases.48

Angles, slants and slopes can be readily seen.

7. Spacings

These include the wide, narrow, mixed, or uniform spacing between letters, words, and between lines on unruled sheets sometimes referred to as interlinear spacing. Habits of some significance also develop in the spacing between capital letters and lowercase or small letters in the same words.49

Illustration E clearly shows that the spacing between the ‘i’ and ‘L’ is shorter than the spacing in illustration F. Both illustrations stem from the same word which was written by two different writers.

48 (Headrick, 1999)49 (Headrick, 1999)

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Illustration E Illustration F

8. Abbreviations

These mean word contractions that eliminate letters or letter combinations that sacrifice form in favour of speed,50 such as the world “COMELEC,” to mean Commission on Elections. This is a matter of preference used by the writer which would not be effected by him choosing to use a tablet instead of a piece of paper.

9. Alignment

This concerns the relation of successive letters of a word, signature, or line of writing to an actual or imaginary baseline.51 A clear example of this is when a writer writes on a blank piece of paper where no instruction lines have been placed, unlike a school notebook which has lines to help guide the student, the writer must write in a straight line guided only by his mental ability to do so.

10. Commencements and Terminations

This takes into consideration how the writer, through the strokes of a writing instrument, begins the letter and how he ends the letter. “Strokes with which lowercase letters are commenced and terminated, vary in both length, the direction of their paths, and their tendency to intersect with the strokes of other letters, according the personal habits the writer… This tendency seems to correlate with

50 (Headrick, 1999)51 (Headrick, 1999)

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the fluency or speed of the execution of the signature.(italics mine)”52 An example of this is when the ending stroke will return to cross “t”s, apply accents or simply to inscribe a characteristics underscore or rubric (which will be discussed below).

Headrick points out that this elements draws its strength from determining (1) the length; (2) the direction; and (3) the intersection, of how strokes are formed on a document and how they interact with other strokes.

In illustration G provided below, the red circle indicates the connection between the ‘u’ and the ‘s.’ An expert will be able to discern that the length between the two letters is stiflingly thin and the direction of the ending stroke of the ‘u’ is a short dip.

Illustration G

In illustration H it is noticeable that the strokes used to form the letter ‘n’ intertwine with that of the strokes giving birth to the letter ‘g.’ It can also be determined that the writer tends to end his ‘g’s with a long dash.

Illustration H

11. Diacritics and Punctuation — Presence, Style and Location

52 (Headrick, 1999)

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Punctuation marks are used in the English writing system to clarify the meaning of sentences by attempting to control the reading of a passage to correspond to certain elements of the spoken language. Punctuations are either open and close. An open pattern is one in which the comma and other marks are used sparingly. A close pattern makes liberal use of punctuation marks, often putting one wherever grammatical structure will allow.53 This element delves into the writer’s preference of using a lot or few punctuation marks when he writes.

12. Embellishments

Embellishment adds or extends strokes that are easily executed and are not essential to the recognition of the character or the word. It is the natural product of speed, fluency, or individual caprice. It is occasionally used to refer to the underscores that some writers apply to their signatures, or to some personal flourish that follows it.54 This is a habit of artistic expression, such as when a person underlines his signature even if it is not necessary for the creation of the word.

13. Legibility or Writing Quality

Legibility and writing quality are the ease of recognition of letters, usually stemming from the adherence to copybook designs, and to a lesser extent, to copybook size, slant, and spacing.55

14. Line Continuity

This elements concerns itself with “…the interruptions in or discontinuity of the writing line, occurring as a result of pen stops, pen lifts or disconnections.”56 This is important because “…in the examination and study of signatures, disconnections or pen lifts are classic symptoms of simulation by tracing methods…”57 These are signs left by a forger because unlike the person he attempts to forge, he does not have the motor skills to recreate the formation of letters and words sought to be forged. Instead, the forger must write slowly, taking his time, and thus must occasionally stop to lift his pen before making the next stroke.

Illustration I shows the image of the word “holographic.” Illustration J shows a close up of the ‘r.” The encircled area shows that the writer did not accomplish the entire word in one fluid manner, but had stopped at the ending of ‘g’ and began anew with the creation of the ‘r.’ The hook that is encircled

53 (Headrick, 1999)54 (Headrick, 1999)55 (Headrick, 1999)56 (Headrick, 1999)57 (Headrick, 1999)

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is proof that it was not made in one fluid manner. This is an example of pen lifting which was substantiated by the author.

Illustration I

Illustration J

15. Line Quality

Line quality is the degree of regularity (i.e., smoothness and/or gradation) to the written stroke as may be judged from the consistency of its nature and of its path in a prescribed direction. It varies from smooth and controlled to tremulous and erratic. Many factors related to control (e.g., skill, state of health, age, velocity of the instrument, pen pressure, even quality of vision) are contributing factors to the quality of the line that may be produced.58 It is to be noted that pen pressure is one of the factors that contribute to line quality and pen pressure has already been indicated to be not a discernible factor. Nevertheless, line quality is at best the result or effect of pen pressure. Thus it is unnecessary to prove the existence of pen pressure.

For example, if an old sickly person were to write on a tablet computer with trembling hands, the lines will thus show such tremor from the constant dipping and rising of the writing.

16. Pen Hold is not discernible

17. Writing Movement

58 (Headrick, 1999)

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This “is an attribute of writing that is observed in letter formations and intraword connections.that may be as follows:

a. garlanded — counter-clockwise movements predominate.b. arched — clockwise movements predominate.c. angular — straight lines take precedence to curves.d. indeterminable — predominating movement uncertain.”59

This takes into consideration the “specific movements in the writing of a person that are particularly letter related… [such as] the manner of combining the letters “of” to significantly modify the construction of the upper loop of the “f.” For the purpose of this study, experts look at the strokes in order to decipher this element. As previously noted, strokes and the way letters are connected can be readily be ascertained.

18. Consistency or Natural Variation

The executions of every writer vary to some extent from one occasion to the next. There is also variation occurring between writings made on different dates, on different documents and with different instruments. The difference between these variations is usually just a matter of degree and may be greater or lesser depending upon circumstances. The executions of every writer vary to some extent from one occasion to the next. There is also variation occurring between writings made on different dates, on different documents and with different instruments.60

19. Persistency

This concerns the frequency with which a given habit occurs, when the occasion permits.61 Thus, if one of the elements remains constant in most samples to be used as comparison, it becomes a good sign post for the expert to use when determining authentication.

20. Lateral Expansion

Lateral expansion is the horizontal dimension of a group of successive letters and words. It is the product of letter formation, letter sizes, and the spacing between letters and words. It ranges from contracted to expanded.62

21. Word Proportions

This means the vertical dimension versus horizontal dimension. Or simply put, the product of size and spacing made by the writer. 59 (Headrick, 1999)60 (Headrick, 1999)61 (Headrick, 1999)62 (Headrick, 1999)

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B. Law does not require Expert Witness

The rules on electronic evidence provide that “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 based on authentic records.”(Italics mine)63 American case law provides in Vela that the “…required proponents of a computerized telephone bill to merely offer testimony that the proffered printout was a business record relied on in the course of normal operations.(Italics mine)64” In Capital, the court ruled that “the manager’s testimony plus a showing that he was the custodian of the computer records convinced the court that the plaintiff had met the “necessary authenticity predicate” for admission of the records.65”

It can be gathered from the above that that the witnesses to be introduced could be school mates, workmates, family, or whoever may be familiar with the testator’s handwriting whether it is on paper or on an iPad. And such witness need only (1) determine the handwriting of the testator on the iPad or the computer printout of such document through (2) his past experience and working knowledge the testator’s handwriting.

The intent of the law shows that a regular witness does not need to possess the methodology or techniques of an expert witness. Jurisprudence provides that “the handwriting of a person on the document may be proved by any witness who believes it to be the handwriting of such person…”66 iPads are being used in schools,67 doctors,68 and other professions alike. Those who handwrite their own notes with iPads, through applications like Noteshelf and Penultimate,69 are people who treat such note or document the same way they treat a regular document written by hand. They read it, archive it, and of course, they share it. Such electronic document can be E-mailed, or passed to persons via Bluetooth or portable hard drive. An experienced iPad user would thus leave at least the number of witnesses required by law who have grown accustomed to seeing his handwriting created through an iPad interphase.

On its face, the samples provided show that the handwriting found in each of them is different. In addition, the compliance with substantially all 21 universal elements of handwriting creates a presumption that, if the forensic document examiner can perceive enough foot prints or signs to distinguish handwriting in such a document, what would keep a layman, unskilled in the art of the expert he may be, from qualifying to be the “regular” handwriting witness the law accepts? The logic is that the law recognizes that people can readily discern the handwriting of a person based on their experience with it. The fact that it leaves substantially all universal elements leads to the conclusion that people who know the testator’s writing on paper would also be qualified to testify.

C. Handwriting can be determined through a Photostatic or Xerox copy

63 (Sec1, Rule9, Rules on Electronic Evidence)64 (U.S. v. Vela 673 F.2d 86 (5th Cir. 1982))65 (Capital Marine Supply, Inc. vs M.V. Rowland Thomas II 719 f.2D 104 (5th Cir. 1983))66 (People vs. Lava 28 SCRA 72)67 (Virtual College)68 (12Ju)69 (App Advice Daily)

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Rodelas provides that a “…photostatic or Xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator.”70 When the holographic will written on an iPad is printed on paper, it does not show signs of indentation, neither does a photostatic or Xerox copy. Thus, it is not an absolute requirement, for the authentication of a holographic will, that the will or copy to be examined, must carry indentation left by the author or the circumstances of Pen Hold, the 16th element mentioned earlier.

D. Liberal Construction of the E-Commerce Law

Amador clearly provides that “the liberal construction of the Rules (E-Commerce Act) is mandated by the fact that the Rules are new and technical in nature.71(italics mine)” He even goes so far as to say that “doubts should be resolved in favor of admissibility.72” The rational of this rule is based on meeting 3 essential goals.

1. Lack of Jurisprudence

The first is because “there are only a few precedents to guide the courts in the application of the Rules.73”

2. Legislative Intent

The second is the legislative intent to promote and “facilitate the use of modern means of communications and storage of information.74”

3. Constitutional Intent

Our Constitution provides that it “…adopts the generally accepted principles of international law as part of the law of the land.”75 The E-commerce law was based on the Model Law on Electronic Commerce (MLEC) drafted by the United Nations Commission on International Trade Law (UNCITRAL). The MLEC “…purports to enable and facilitate commerce conducted using electronic means by providing national legislators with a set of internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce. In particular, it is intended to overcome obstacles arising from statutory provisions that may not be varied contractually by providing equal treatment to paper-based and electronic information. Such equal treatment is essential for enabling the use of paperless communication, thus fostering efficiency in international trade. (Italics mine)76

There thus exists a Constitutional, as well as a statutory duty, on the part of the courts to provide a liberal interpretation when probating an electronic holographic will. This duty is based on the intent to achieve the new policy to modernize our legal system.

70 (Rodelas v AranzA 119 scra 16)71 (Amador, 2010)72 (Amador, 2010)73 (Amador, 2010)74 (Amador, 2010)75 (Section 2, Article 2; 1987 Philippine Constitution )76 (UNCITRAL)

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E. Electronic Holographic Wills Promote Testacy

As discussed earlier, one of the benefits of a holographic will is to provide the testator secrecy. And yet ironically the will could easily be concealed or lost precisely because it is made in secret. This was pointed out by the Spanish commentators when they said that “…it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents…”77 Unlike notarial wills, “the loss of the holographic will entails the loss of the only medium of proof [of its existence. This is an incentive for] the forger [who] may have destroyed it in an “accident…” [Thus] the oppositors have no way to expose the trick and the error…(italics mine)78 In summary, for a holographic will to be probated, the actual will must be presented to court or, at the very least, a photostatic or Xerox copy of the will.79

And even considering that the holographic will survives, Gan provides that the will “…may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the important ones, may go undetected.”80

The fear substantiated by the Gan case is that (1) the will may be lost; and (2) even if the will is found, it is possible that some pages might be left out. Such fears are put to rest with an electronic holographic will because the will can be saved (a) onto multiple hard drives; (b) or on the internet. And even if the will is saved and substantial time passes before it is found, it may nevertheless be probated because wills are imprescriptible.

1. Hard Drives

Is the mechanism in computers and tablets which digitally store data. Hard drives are either portable and may separate from a computer or tablet, such as flash drives or USB sticks, or are built into the actual computer or tablet. The holographic will contemplated can be saved and multiplied to as many copies as the testator chooses. All of which are recognized to be electronic documents and originals. Each time a person purchases a new computer or tablet, it is custom for he or she to transfer all prior data into the new computer or tablet. Having the same will “copied” and “pasted” into several devices creates the relativity low possibility of the will ever being lost or destroyed. Also, security measures may easily be taken by the testator wherein he makes sure that the data (his handwritten will) is not severable. Meaning, the fear of a page of paper being lost, or a page inserted by a forger into the rest of the will, is difficult to accomplish, if not very difficult.

In theory, the testator could make 100 copies and hide numerous copies in various encrypted folders inside one computer or in multiple computers through hard drive transferring or the internet.

2. The Internet

77 (Gan vs. Yap 104 Phil 509)78 (Gan vs. Yap 104 Phil 509)79 (Rodelas v AranzA 119 scra 16)80 (Gan vs. Yap 104 Phil 509)

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The internet allows for substantial amounts of data to be saved and exchanged on servers or cloud based networks, and E-mail. This paper will not go into the in depth discussion of each but will briefly describe the definition of each and how it helps preserve and promote testacy.

a. E-mail

E-mail is a system for sending messages from one individual to another via telecommunications link between computers or terminals.81 The moment a testator accomplishes the will he may immediately send it to a trusted individual or several individuals through the same tablet computer he used to make it. There is also a service that allows individuals to send “postdated e-mails.” The contents of the e-mail are uploaded into the server of the service provider, such as Lettermelater.com,82 and it is sent at a chosen future date. The testator may foresee his death coming, yet wishes to keep the knowledge of his will from anyone, until he passes away. Should he die suddenly, the testator is nevertheless assured that the will should reach the designated custodian for having accomplished the postdating earlier.

b. Cloud

Cloud computing is a “…method of running application software and storing related data in central computer systems and providing customers or other users access to them through the Internet.83” In simple terms, the testator could upload a copy of the holographic will onto an online server. The document is then saved onto an actual hard drive somewhere in the world which usually carries multiple safety precautions to preserve data. The document can then be readily accessed through any computer with an internet connection through a log in and password. It would be as though one were placing the will in a safety deposit box in a bank, but a bank that could never be destroyed. This is the service offered by Dropbox.84 Thus, even in the event of the physical destruction of all the hard drives which carried the will, it may nevertheless be accessed and printed through any computer that has an internet connection.

V. Conclusion

Any witness, who believes that the handwriting on the electronic holographic will on an iPad belongs to that of the testator, can testify to the authenticity of such in court. This would be enough to probate the will.

81 (Dictionary.com)82 (12Ju1)83 (Academic Room)84 (Dropbox)

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However, if the court deems it necessary to ask for the aid of an expert witness, the iPad would have retained substantially all important writing elements necessary for such expert to arrive at a reasonable conclusion as to either the authenticity or non-authenticity of the will. It would be almost as though he were interpreting handwriting on paper.

When in doubt, the E-commerce Act provides that the holographic will should be probated based on the rule that doubts should be construed in favor of admissibility. The purpose of which is to add and promote the legislative intent to modernize the law. And such ruling would be for the benefit of many high tech testators who wish to better preserve their will through the internet or other methods created by technology.

Sample Holographic Will A

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Sample Holographic Will B

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(n.d.). Vitug v. Court of Appeals 183 Scra 755.

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