Caneda v.

CA

222 SCRA 781

FACTS:

On December 5, 1978, Mateo Caballero, a widower without any

children and already in the twilight years of his life, executed a last will
and testament at his residence before 3 witnesses.

He was assisted by his lawyer, Atty. Emilio Lumontad.

In the will, it was declared that the testator was leaving by way of
legacies and devises his real and personal properties to several people
all of whom do not appear to be related to the testator.

4 months later, Mateo Caballero himself filed a case seeking the

probate of his last will and testament, but numerous postponements
pushed back the initial hearing of the probate court regarding the will.

On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment
as special administrator of the testator’s estate.

Thereafter, the petitioners, claiming to be nephews and nieces of the

testator, instituted a second petition for intestate proceedings. They
also opposed the probate of the testator’s will and the appointment of
a special administrator for his estate.

Benoni Cabrera died and was replaced by William Cabrera as special

administrator and gave an order that the testate proceedings for the
probate of the will had to be heard and resolved first.

In the course of the proceedings, petitioners opposed to the allowance

of the testator’s will on the ground that on the alleged date of its
execution, the testator was already in poor state of health such that he
could not have possibly executed the same. Also the genuineness of the
signature of the testator is in doubt.

On the other hand, one of the attesting witnesses and the notary public
testified that the testator executed the will in question in their presence
while he was of sound and disposing mind and that the testator was in
good health and was not unduly influenced in any way in the execution
of his will.
Probate court then rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero.

CA affirmed the probate court’s decision stating that it substantially

complies with Article 805. Hence this appeal.

ISSUE:

W/N the attestation clause in the will of the testator is fatally defective
or can be cured under the art. 809.

HELD:

No. It does not comply with the provisions of the law.

Ordinary or attested wills are governed by Arts. 804 to 809. The will
must be acknowledged before a notary public by the testator and the
attesting witnesses. The attestation clause need not be written in a
language known to the testator or even to the attesting witnesses.

It is a separate memorandum or record of the facts surrounding the

conduct of execution and once signed by the witnesses it gives
affirmation to the fact that compliance with the essential formalities
required by law has been observed.

The attestation clause, therefore, provides strong legal guaranties for

the due execution of a will and to insure the authenticity thereof.

It is contended by petitioners that the attestation clause in the will

failed to specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. And the Court
agrees.

The attestation clause does not expressly state therein the circumstance
that said witnesses subscribed their respective signatures to the will in
the presence of the testator and of each other.

The phrase, “and he has signed the same and every page thereof, on
the space provided for his signature and on the left hand margin,”
obviously refers to the testator and not the instrumental witnesses as it
is immediately preceded by the words” as his last will and testament.”

Clearly lacking is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one another.
That the absence of the statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the
will that is here sought to be probated.

Also, Art. 809 does not apply to the present case because the
attestation clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of the testator
and of each other. The defect in this case is not only with respect to the
form or the language of the attestation clause. The defects must be
remedied by intrinsic evidence supplied by the will itself which is clearly
lacking in this case.

Therefore, the probate of the will is set aside and the case for the
intestate proceedings shall be revived.

Article 809 cannot be used to cure the defects of the will when it does
not pertain to the form or language of the will. This is because there is
not substantial compliance with Article 805.

Garcia v. Lacuesta

90 P 489
FACTS:

This case involves the will of Antero Mercado, which among other
defects was signed by the testator through a cross mark (an “X”). The
will was signed by Atty. Javier who wrote the name of Mercado as
testator and the latter allegedly wrote a cross mark after his name. The
CFI allowed the will but the CA disallowed it because its attestation
clause was defective for failing to certify 1) that the will was signed by
Atty. Javier at the express direction of the testator, 2) that the testator
wrote a cross at the end of his name after Atty. Javier signed for him,
and 3) that the 3 witnesses signed the will in the presence of the
testator and of each other.

ISSUE:

Whether the will should be allowed despite the defect of the

attestation clause since the testator had placed a cross mark himself as
his signature.

HELD:

The attestation clause is fatally defective for failing to state that

Mercado directed Javier to write the testator’s name under his express
direction. Petitioner’s argument that such recital is unnecessary
because the testator signed the will himself using a cross mark which
should be considered the same as a thumb-mark (which has been held
sufficient in past cases) is not acceptable. A cross mark is not the same
as a thumb mark, because the cross mark does not have the same
trustworthiness of a thumb mark.

Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS – Petitioner Apolonio Taboada filed a petition for probate of the

will of the late Dorotea perez. The will consisted of two pages, the first
page containing all the testamentary dispositions of the testator and
was signed at the end or bottom of the page by the testatrix alone and
at the left hand margin by the three instrumental witnesses. The second
page consisted of the attestation clause and the acknowledgment was
signed at the end of the attestation clause by the three witnesses and at
the left hand margin by the testatrix. The trial court disallowed the will
for want of formality in its execution because the will was signed at the
bottom of the page solely by the testatrix, while the three witnesses
only signed at the left hand margin of the page. The judge opined that
compliance with the formalities of the law required that the witnesses
also sign at the end of the will because the witnesses attest not only the
will itself but the signature of the testatrix. Hence, this petition.

ISSUE – Was the object of attestation and subscription fully when the
instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions?

HELD –
(SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestation

and subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page
which contains all the testamentary dispositions, especially so when the
will was properly identified by a subscribing witness to be the same will
executed by the testatrix; and b) that the failure of the attestation
clause to state the number of pages used in writing the will would have
been a fatal defect were it not for the fact that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another 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.

It must be noted that the law uses the terms attested and subscribed.
Attestation consists in witnessing the testator's execution of the will in
order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose
of identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the

first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial

departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449).

The law is to be liberally construed, "the underlying and fundamental

objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will"
(Report of the Code Commission, p. 103).

The objects of attestation and of subscription were fully met and

satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.

CALDE vs. THE COURT OF APPEALS

G.R. No. 93980 June 27, 1994

FACTS:

Calibia Lingdan Bulanglang, the decedent, left behind nine thousand

pesos (P9,000.00) worth of property. She also left a Last Will and
Testament, and a Codicil and named Nicasio Calde the executor or the
Will and Codicil. Both documents contained the thumbmarks of
decedent. They were also signed by three (3) attesting witnesses each,
and acknowledged before Tomas A. Tolete, then the Municipal Judge
and Notary Public Ex-Officio of Bauko, Mt. Province. The named
executor filed a Petition for its allowance. Unfortunately, he died during
the pendency of the proceedings, and was duly substituted by
petitioner. Private respondents, relatives of decedent, opposed the
Petition filed by Calde, questioning the legality and validity of the said
documents under Art. 805 of the Civil Code. Two (2) of the six (6)
witnesses testified that only one ballpen was used in signing the two
testamentary documents and were subscribed and attested by the
instrumental witnesses during a single occasion. However, on the face
of the document, the signatures of some of the attesting witnesses in
the decedent’s will and its codicil were written in blue ink while the
others were in black. In addition, Judge Tomas A. Tolete testified in
narration as to how the documents in question were subscribed and
attested, starting from decedent’s thumbmarking thereof, to the alleged
signing of the instrumental witnesses thereto in consecutive order.

ISSUE:

Whether or not, based on the evidence submitted, respondent

appellate court erred in concluding that both decedent’s Last Will and
Testament, and its Codicil were subscribed by the instrumental
witnesses on separate occasions.

HELD:

Evidence may generally be classified into three (3) kinds, from which a
court or tribunal may properly acquire knowledge for making its
decision, namely: real evidence or autoptic preference, testimonial
evidence and circumstantial evidence. In the case at bench, the autoptic
proference contradicts the testimonial evidence produced by petitioner.
Thus, it was not erroneous nor baseless for respondent court to
disbelieve petitioner’s claim that both testamentary documents in
question were subscribed to in accordance

Abangan v. Abangan

Facts:
1. On September 1917, the CFI of Cebu admitted to probate Ana
Abangan's will executed on July 1916. It is from this decision which the
opponent appealed. It is alleged that the records do not show the
testatrix knew the dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed
in Cebu City and in the dialect of the place where the testarix is a
resident is enough to presume that she knew this dialect in the absence
of any proof to the contrary. On the authority of this case and that of
Gonzales v Laurel, it seems that for the presumption to apply, the
following must appear: 1) that the will must be in a language or dialect
generally spoken in the place of execution, and, 2) that the testator
must be a native or resident of the said locality

Icasiano vs. Icasiano

G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa
Villacorte and for his appointment as executor thereof. It appears from
the evidence that the testatrix died on September 12, 1958. She
executed a will in Tagalog, and through the help of her lawyer, it was
prepared in duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only
brought the original copy of the will while the carbon duplicate
(unsigned) was left in Bulacan. One of the witnesses failed to sign one
of the pages in the original copy but admitted he may have lifted 2
pages simultaneously instead when he signed the will. Nevertheless, he
affirmed that the will was signed by the testator and other witnesses in
his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to

affix his signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or
mere inadvertence. Since the duplicated bore the required signatures,
this proves that the omission was not intentional. Even if the original is
in existence, a duplicate may still be admitted to probate since the
original is deemed to be defective, then in law, there is no other will bu
the duly signed carbon duplicate and the same can be probated.
The law should not be strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she has no control of. Where the purpose of the law is to
guarantee the identity of the testament and its component pages, and
there is no intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules
that the will should be signed by the witnesses on every page. The
carbon copy duplicate was regular in all respects.

Azuela vs CA

FACTS:

1. Petitioner Felix Azuela sought to admit to probate the notarial will

of Eugenia E. Igsolo. However, this was opposed by Geralda Castillo,
who was the attorney-in-fact of “the 12 legitimate heirs” of the
decedent. According to her, the will was forged, and imbued with
several fatal defects. Particularly, the issue relevant in this subject is that
the will was not properly acknowledged. The notary public, Petronio Y.
Bautista, only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo
10 (sic), 1981 dito sa Lungsod ng Maynila.”
ISSUE: Whether or not the will is fatally defective as it was not properly
acknowledged before a notary public by the testator and the witnesses
as required by Article 806 of the Civil Code.

RULING: Yes, the will is fatally defective. By no manner of contemplation

can those words be construed as an acknowledgment.

An acknowledgement is the act of one who has executed a deed in

going before some competent officer or court and declaring it to be his
act or deed. It involves an extra step undertaken whereby the signore
actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it

does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document
was subscribed and sworn to by the executor.

Yet even if we consider what was affixed by the notary public as a jurat,
the will would nonetheless remain invalid, as the express requirement
of Article 806 is that the will be “acknowledged,” and not merely
subscribed and sworn to. The will does not present any textual proof,
much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent
of the testator.

Lee v. Tambago

544 SCRA 393

FACTS:

Complainant, Manuel L. Lee, charged respondent, Atty. Regino B.

Tambago, with violation of Notarial Law and the Ethics of the legal
profession for notarizing a will that is alleged to be spurious in nature in
containing forged signatures of his father, the decedent, Vicente Lee Sr.
and two other witnesses. In the said will, the decedent supposedly
bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel
of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings
of complainant.

The will was purportedly executed and acknowledged before

respondent on June 30, 1965.Complainant, however, pointed out that
the residence certificateof the testator noted in the acknowledgment of
the will was dated January 5, 1962.Furthermore, the signature of the
testator was not the same as his signature as donor in a deed of
donationwhich supposedly contained his purported signature.
Complainant averred that the signatures of his deceased father in the
will and in the deed of donation were “in any way entirely and
diametrically opposed from one another in all angle[s].”

Complainant also questioned the absence of notation of the residence

certificates of the purported witnesses Noynay and Grajo. He alleged
that their signatures had likewise been forged and merely copied from
their respective voters’ affidavits.

Complainant further asserted that no copy of such purported will was

on file in the archives division of the Records Management and Archives
Office of the National Commission for Culture and the Arts (NCCA).

ISSUE:

Was the will spurious?

HELD:

Yes, thus Tambago violated the Notarial Law and the ethics of legal
profession.
The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the execution
of wills is to close the door on bad faith and fraud, to avoid substitution
of wills and testaments and to guarantee their truth and authenticity.

A notarial will, as the contested will in this case, is required by law to be

subscribed at the end thereof by the testator himself. In addition, it
should be attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another. The will in question
was attested by only two witnesses. On this circumstance alone, the will
must be considered void. This is in consonance with the rule that acts
executed against the provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes their validity. The Civil
Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses. An acknowledgment is
the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually
declares to the notary public that the same is his or her own free act
and deed. The acknowledgment in a notarial will has a two-fold
purpose: (1) to safeguard the testator’s wishes long after his demise
and (2) to assure that his estate is administered in the manner that he
intends it to be done.
A cursory examination of the acknowledgment of the will in question
shows that this particular requirement was neither strictly nor
substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial
witnesses Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testator’s old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was

required to faithfully observe the formalities of a will and those of
notarization. These formalities are mandatory and cannot be
disregarded

Ortega v. Valmonte

478 SCRA 247

FACTS:

Two years after the arrival of Placido from the United States and at the
age of 80 he wed Josefina who was then 28 years old. But in a little
more than two years of wedded bliss, Placido died. Placido executed a
notarial last will and testament written in English and consisting of 2
pages, and dated 15 June 1983¸but acknowledged only on 9 August
1983.
The allowance to probate of this will was opposed by Leticia, Placido’s
sister. According to the notary public who notarized the testator’s will,
after the te

stator instructed him on the terms and dispositions he wanted on the

will, the notary public told them to come back on 15 August 1983 to
give him time to prepare. The testator and his witnesses returned on
the appointed date but the notary public was out of town so they were
instructed by his wife to come back on 9 August 1983. The formal
execution was actually on 9 August 1983. He reasoned he no longer
changed the typewritten date of 15 June 1983 because he did not like
the document to appear dirty. Petiti

oner’s argument:

1. At the time of the execution of the notarial will Placido was already
83 years old and was no longer of sound mind. 2. Josefina conspired
with the notary public and the 3 attesting witnesses in deceiving Placido
to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.

ISSUE:

1. W/N Placido has testamentary capacity at the time he allegedly

executed the will. 2. W/N the signature of Placido in the will was
procured by fraud or trickery.

HELD:

1. YES. Despite his advanced age, he was still able to identify accurately
the kinds of property he owned, the extent of his shares in them and
even their location. As regards the proper objects of his bounty, it was
sufficient that he identified his wife as sole beneficiary. The omission of
some relatives from the will did not affect its formal

validity. There being no showing of fraud in its execution, intent in its

disposition becomes irrelevant. 2. NO. Fraud is a trick, secret devise,
false statement, or pretense, by which the subject of it is cheated. It
may be of such character that the testator is misled or deceived as to
the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for fraud, he
would not have made. The party challenging the will bears the burden
of proving the existence of fraud at the time of its execution. The
burden to show otherwise shifts to the proponent of the will only upon
a showing of credible evidence of fraud. Omission of some relatives
does not affect the due execution of a will. Moreover, the conflict
between the dates appearing on the will does not invalidate the
document,

“because the law does not even require that a notarial will be executed
and

acknowledged on the same occasion. The variance in the dates of the

will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and instrumental witnesses

Guerrero v. Bihis
521 SCRA 394

FACTS:

Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero

and respondent Resurreccion A. Bihis, died. Guerrero filed for probate
in the RTC QC. Respondent Bihis opposed her elder sister’s petition on
the following grounds: the will was not executed and attested as
required by law; its attestation clause and acknowledgment did not
comply with the requirements of the law; the signature of the testatrix
was procured by fraud and petitioner and her children procured the will
through undue and improper pressure and influence. Petitioner
Guerrero was appointes special administratrix. Respondent opposed
petitioner’s appointment but subsequently withdrew her opposition.
The trial court denied the probate of the will ruling that Article 806 of
the Civil Code was not complied with because the will was
“acknowledged” by the testatrix and the witnesses at the testatrix’s
residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O.
Directo who was a commissioned notary public for and in Caloocan City.

ISSUE:

Did the will “acknowledged” by the testatrix and the instrumental

witnesses before a notary public acting outside the place of his
commission satisfy the requirement under Article 806 of the Civil Code?
HELD:

No. One of the formalities required by law in connection with the

execution of a notarial will is that it must be acknowledged before a
notary public by the testator and the witnesses. 6 This formal
requirement is one of the indispensable requisites for the validity of a
will. 7 In other words, a notarial will that is not acknowledged before a
notary public by the testator and the instrumental witnesses is void and
cannot be accepted for probate.

The Notarial law provides: SECTION 240.Territorial jurisdiction. — The

jurisdiction of a notary public in a province shall be co-extensive with
the province. The jurisdiction of a notary public in the City of Manila
shall be co-extensive with said city. No notary shall possess authority to
do any notarial act beyond the limits of his jurisdiction.

The compulsory language of Article 806 of the Civil Code was not
complied with and the interdiction of Article 240 of the Notarial Law
was breached. Ineluctably, the acts of the testatrix, her witnesses and
Atty. Directo were all completely void.

Alvarado v. Gaviola

226 SCRA 347

FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial

will entitled “Huling Habilin” wherein he disinherited an illegitimate
son, petitioner Cesar Alvarado, and expressly revoked a previously
executed holographic will at the time awaiting probate before the RTC
of Laguna.

According to Bayani Ma. Rino, private respondent, he was present when

the said notarial will was executed, together with three instrumental
witnesses and the notary public, where the testator did not read the
will himself, suffering as he did from glaucoma.

Rino, a lawyer, drafted the eight-page document and read the same
aloud before the testator, the three instrumental witnesses and the
notary public, the latter four following the reading with their own
respective copies previously furnished them.

Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang

Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5,
1977 ni Brigido Alvarado” was executed changing some dispositions in
the notarial will to generate cash for the testator’s eye operation.

Said codicil was likewise not read by Brigido Alvarado and was read in
the same manner as with the previously executed will.

When the notarial will was submitted to the court for probate, Cesar
Alvarado filed his opposition as he said that the will was not executed
and attested as required by law; that the testator was insane or
mentally incapacitated due to senility and old age; that the will was
executed under duress, or influence of fear or threats; that it was
procured by undue pressure and influence on the part of the
beneficiary; and that the signature of the testator was procured by
fraud or trick.

ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probate

despite allegations of defects in the execution and attestation thereof as
testator was allegedly blind at the time of execution and the double-
reading requirement under Art. 808 of the NCC was not complied with.

HELD:

YES. The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of law in order to insure the authenticity of the will, the
formal imperfections should be brushed aside when they do not affect
its purpose and which, when taken into account, may only defeat the
testator’s will.

Cesar Alvardo was correct in asserting that his father was not totally
blind (of counting fingers at 3 feet) when the will and codicil were
executed, but he can be so considered for purposes of Art. 808.
That Art. 808 was not followed strictly is beyond cavil.

However, in the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions
known to the testator who is blind or incapable of reading the will
himself (as when he is illiterate) and enabling him to object if they do
not accord with his wishes.

Rino read the testator’s will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public.

Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions.

Only then did the signing and acknowledgment take place.

There is no evidence that the contents of the will and the codicil were
not sufficiently made known and communicated to the testator.

With four persons, mostly known to the testator, following the reading
word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him were the
terms actually appearing on the typewritten documents.

The rationale behind the requirement of reading the will to the testator
if he is blind or incapable of reading the will to himself (as when he is
illiterate), is to make the provisions thereof known to him, so that he
may be able to object if they are not in accordance with his wishes.

Although there should be strict compliance with the substantial

requirements of law in order to insure the authenticity of the will, the
formal imperfections should be brushed aside when they do not affect
its purpose and which, when taken into account, may only defeat the
testator’s will.

Roxas v. De Jesus

134 SCRA 245

FACTS:

Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for
partition of the estate of the deceased and also delivered the
holographic will of the deceased. Simeon stated that he found a
notebook belonging to deceased, which contained a “letter-will”
entirely written and signed in deceased’s handwriting. The will is dated
“FEB./61 ” and states: “This is my will which I want to be respected
although it is not written by a lawyer. Roxas relatives corroborated the
fact that the same is a holographic will of deceased, identifying her
handwriting and signature. Respondent opposed probate on the ground
that it such does not comply with Article 810 of the CC because the
date contained in a holographic will must signify the year, month, and
day.

ISSUE:
W/N the date “FEB./61 ” appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article
810 of the Civil Code.

HELD:

Valid date.

This will not be the first time that this Court departs from a strict and
literal application of the statutory requirements regarding the due
execution of Wills. The underlying and fundamental objectives
permeating the provisions of the law wills consists in the liberalization
of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
testator. If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Will should be admitted to probate
(Rey v. Cartagena 56 Phil. 282).

If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator. In Abangan v.
Abanga 40 Phil. 476, we ruled that: The object of the solemnities
surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. …

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day,
or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in
this case.

We have carefully reviewed the records of this case and found no

evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because the date “FEB./61 ”
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be
entertained.
As a general rule, the “date” in a holographic Will should include the
day, month, and year of its execution. However, when as in the case at
bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date “FEB./61” appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code,
probate of the holographic Will should be allowed under the principle
of substantial compliance.

Labrador v. CA

184 SCRA 170

FACTS:

Melecio died leaving behind a parcel of land to his heirs. However,

during probate proceedings, Jesus and Gaudencio filed an opposition
on the ground that the will has been extinguished by implication of law
alleging that before Melecio’s death, the land was sold to them
evidenced by TCT No. 21178. Jesus eventually sold it to Navat.

Trial court admitted the will to probate and declared the TCT null and
void. However, the CA on appeal denied probate on the ground that it
was undated.
ISSUE:

W/N the alleged holographic will is dated, as provided for in Article 810
of CC.

HELD:

YES. The law does not specify a particular location where the date
should be placed in the will. The only requirements are that the date be
in the will itself and executed in the hand of the testator.

The intention to show March 17 1968 as the date of the execution is

plain from the tenor of the succeeding words of the paragraph. It states
that “this being in the month of March 17th day, in the year 1968, and
this decision and or instruction of mine is the matter to be followed.
And the one who made this writing is no other than Melecio Labrador,
their father.” This clearly shows that this is a unilateral act of Melecio
who plainly knew that he was executing a will.

Rodelas v. Aranza

119 SCRA 16
FACTS:

Rodelas filed a petition with the CFI of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor.

Aranza, et al. filed a MTD on the grounds of:

1.Rodelas was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the
testator as required by Rule 75, section 2 of the Rules of Court;

2.the copy of the alleged holographic will did not contain a disposition
of property after death and was not intended to take effect after death,
and therefore it was not a will, it was merely an instruction as to the
management and improvement of the schools and colleges founded by
the decedent;

3.the hollographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect because lost or
destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.

4.the deceased did not leave any will, holographic or otherwise,

executed and attested as required by law.
MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of
the will stating that “in the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that ‘in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material
proof of authenticity of said wills.”

And that the alleged holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. The lapse of more than
14 years from the time of the execution of the will to the death of the
decedent and the fact that the original of the will could not be located
shows to that the decedent had discarded the alleged holographic will
before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA.

Aranza et al. moved to forward the case to the SC as it involves a
question of law not of fact.

ISSUE:

W/N a holographic will which was lost or cannot be found can be

proved by means of a photostatic copy.
HELD:

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. It is necessary
that there be a comparison between sample handwritten statements of
the testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be

allowed because comparison can be made by the probate court with
the standard writings of the testator. The probate court would be able
to determine the authenticity of the handwriting of the testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the
execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it
shall produce no effect. The law regards the document itself as material
proof of authenticity.” But, in Footnote 8 of said decision, it says that
“Perhaps it may be proved by a photographic or photostatic copy. Even
a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court,”
Codoy v. Calugay

312 SCRA 333

FACTS:

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia

Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seño Vda. de Ramonal, filed a petition for probate of the said
will. They attested to the genuineness and due execution of the will on
30 August 1978.

Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition

claiming that the will was a forgery and that the same is even illegible.
They raised doubts as regards the repeated appearing on the will after
every disposition, calling the same out of the ordinary. If the will was in
the handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various

documentary evidence.

The first witness was the clerk of court of the probate court who
produced and identified the records of the case bearing the signature of
the deceased.
The second witness was election registrar who was made to produce
and identify the voter’s affidavit, but failed to as the same was already
destroyed and no longer available.

The third, the deceased’s niece, claimed that she had acquired
familiarity with the deceased’s signature and handwriting as she used to
accompany her in collecting rentals from her various tenants of
commercial buildings and the deceased always issued receipts. The
niece also testified that the deceased left a holographic will entirely
written, dated and signed by said deceased.

The fourth witness was a former lawyer for the deceased in the
intestate proceedings of her late husband, who said that the signature
on the will was similar to that of the deceased but that he can not be
sure.

The fifth was an employee of the DENR who testified that she was
familiar with the signature of the deceased which appeared in the
latter’s application for pasture permit. The fifth, respondent Evangeline
Calugay, claimed that she had lived with the deceased since birth where
she had become familiar with her signature and that the one appearing
on the will was genuine.
Codoy and Ramonal’s demurrer to evidence was granted by the lower
court. It was reversed on appeal with the Court of Appeals which
granted the probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least three
witnesses explicitly declare the signature in a contested will as the
genuine signature of the testator, is mandatory or directory.

2. Whether or not the witnesses sufficiently establish the authenticity

and due execution of the deceased’s holographic will.

HELD:

1. YES. The word “shall” connotes a mandatory order, an imperative

obligation and is inconsistent with the idea of discretion and that the
presumption is that the word “shall”, when used in a statute, is
mandatory.

In the case at bar, the goal to be achieved by the law, is to give effect to
the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.

The paramount consideration in the present petition is to determine

the true intent of the deceased.

2. NO. We cannot be certain that the holographic will was in the

handwriting of the deceased.

The clerk of court was not presented to declare explicitly that the
signature appearing in the holographic will was that of the deceased.

The election registrar was not able to produce the voter’s affidavit for
verification as it was no longer available.

The deceased’s niece saw pre-prepared receipts and letters of the

deceased and did not declare that she saw the deceased sign a
document or write a note.

The will was not found in the personal belongings of the deceased but
was in the possession of the said niece, who kept the fact about the will
from the children of the deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the decreased write a
note or sign a document.

The former lawyer of the deceased expressed doubts as to the

authenticity of the signature in the holographic will.

(As it appears in the foregoing, the three-witness requirement was not

complied with.)

A visual examination of the holographic will convinces that the strokes

are different when compared with other documents written by the
testator.

The records are remanded to allow the oppositors to adduce evidence

in support of their opposition.

The object of solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail
the exercise the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will
is contested, the law requires three witnesses to declare that the will
was in the handwriting of the deceased.

Article 811, paragraph 1. provides: “In the probate of a holographic will,

it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.”

The word “shall” connotes a mandatory order, an imperative obligation

and is inconsistent with the idea of discretion and that the presumption
is that the word “shall”, when used in a statute, is mandatory.

Azaola v. Singson

109 P 102

FACTS:

Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957.

Petitioner submitted for probate her holographic will, in which Maria
Azaola was made the sole heir as against the nephew, who is the
defendant. Only one witness, Francisoco Azaola, was presented to
testify on the handwriting of the testatrix. He testified that he had seen
it one month, more or less, before the death of the testatrix, as it was
given to him and his wife; and that it was in the testatrix’s handwriting.
He presented the mortgage, the special power of the attorney, and the
general power of attorney, and the deeds of sale including an affidavit
to reinforce his statement. Two residence certificates showing the
testatrix’s signature were also exhibited for comparison purposes.

The probate was opposed on the ground that (1) the execution of the
will was procured by undue and improper pressure and influence on the
part of the petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and that the same
was actually written either on the 5th or 6th day of August 1957 and
not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the testatrix,
the probate being contested; and because the lone witness presented
“did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix.”

Petitioner appealed, urging: first, that he was not bound to produce

more than one witness because the will’s authenticity was not
questioned; and second, that Article 811 does not mandatorily require
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
by the adverse party.

ISSUE:

W/N Article 811 of the Civil Code is mandatory or permissive.

HELD:

Article 811 is merely permissive and not mandatory. Since the

authenticity of the will was not contested, petitioner was not required
to produce more than one witness; but even if the genuineness of the
holographic will were contested, Article 811 can not be interpreted to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of a
holographic will, none being required by law (Art. 810, new Civil Code),
it becomes obvious that the existence of witness possessing the
requisite qualifications is a matter beyond the control of the proponent.
For it is not merely a question of finding and producing any three
witnesses; they must be witnesses “who know the handwriting and
signature of the testator” and who can declare (truthfully, of course,
even if the law does not so express) “that the will and the signature are
in the handwriting of the testator”. There may be no available witness
of the testator’s hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility.

This is the reason why the 2nd paragraph of Article 811 allows the court
to resort to expert evidence. The law foresees the possibility that no
qualified witness may be found (or what amounts to the same thing,
that no competent witness may be willing to testify to the authenticity
of the will), and provides for resort to expert evidence to supply the
deficiency.

What the law deems essential is that the court should be convinced of
the will’s authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

Kalaw v. Relova

G.R. No. L-40207 September 28, 1984

Melencio-Herrera, J. (Ponente)

Facts:

1. Gregorio Kalaw, the private respondent, claiming to be the sole heir

of sister Natividad, filed a peition for probate of the latter's holographic
will in 1968. The will contained 2 alterations: a) Rosa's name,
designated as the sole heir was crossed out and instead "Rosario" was
written above it. Such was not initialed, b) Rosa's name was crossed out
as sole executrix and Gregorio's ma,e was written above it. This
alteration was initialed by the testator.

2. Rosa contended that the will as first written should be given effect so
that she would be the sole heir. The lower court denied the probate due
to the unauthenticated alterations and additions.

Issue: Whether or not the will is valid

RULING: No, the will is voided or revoked since nothing remains in the
will which could remain valid as there was only one disposition in it.
Such was altered by the substitution of the original heir with another. To
rule that the first will should be given effect is to disregard the testatrix'
change of mind. However, this change of mind cannot be given effect
either as she failed to authenticate it in accordance with Art. 814, or by
affixing her full signature.